On the universalism of human rights

According to the Preamble of the United Nations Charter (June 26th, 1945), “We the people of the United Nations [are] determined to save succeeding generations from the scourge of war, which twice in our lifetime has brought untold sorrow to mankind, and to regain faith in fundamental human rights, in the dignity and worth of the human person, in the equal rights of men and women and of nations large and small.” If the second half of the 20th century has been often described as the “Age of Rights” following with the end of WWII, it is because the idea of international human rights became a possible reality under the aegis of the United Nations: along with these agencies across the globe, the UN turned the human rights into one of the main areas of international law (if not the main area of international law). But can we consider that the diversity of the United Nations and the multiculturalism of its subjects of international law (States as well as citizens) make themselves null and void the core concept of “universal human rights”? Indeed, the Universalist view of the United Nations can meet some limits even if its goal is the most commendable. The United Nations is the international organization with the most international State membership around the world: from 51 Members States in 1945, the UN is now composed by 193 States and 2 non-member permanent observer States. Unfortunately, some States in the world remain outside the scope of the United Nations and what is more, this international body suffers from a Western hegemony at different levels. We can take a quick look to the Preamble to the U.S. Constitution (September 17th, 1787) to notice that: the exact motto “We the People” could be confused with Preamble to the United Nations Charter. Perhaps the most symbolic fact is that the Declaration of the Rights of Man and of the Citizen of France (nicknamed affectionately “the country of human rights”), served almost as a verbatim copy for the 1948 United Nations Universal Declaration of Human Rights (December 10th, 1948). Some countries could feel they do not belong to this “universal” system created by the most powerful countries and maybe only for these countries. Does the incapacity of the international human rights law to respect the cultural relativism of nations and be universal represent the failure to our international system? We deeply disagree. Well, if we acknowledge that the Universalist view of human rights could not sound realistic, the continued construction of this specific international body gives us hope and prevent us to fall into the most macabre cynicism. Let us explain why by taking the problem from a different angle.
Some commentators such as the former judge of the International Court of Justice, Thomas Burgenthal1 affirm that the modern human rights body that we have inherited from the League of Nations was already towards minorities. For example, if the Treaty of Versailles is often the only treaty cited for referring to the aftermaths of World War I, it is important to know that the Allied Powers concluded several human rights treaties with a group of countries such as Austria, Bulgaria, Czechoslovakia, Greece, Poland, Romania, Turkey, and Yugoslavia in order to protect the rights of the minorities living in those countries. Even then, the international body had the vow to establish a state of peace between all countries but also protect in priority some minorities. Can we conclude then that by erecting rights at the universal level, our human rights system have the will to protect the most excluded populations? It could be a satisfactory answer according me. To my humble opinion, the human rights body will grow with additional specific treaties and agreements towards minorities, developing countries and the most oppressed citizen of the world. Our answer to the criticisms brought against the Universalist view of human rights will be the following statement: like the French Declaration of the Rights of the Man and the Citizen served as the draft for the UN Declaration of Human Rights, the UN primary body of human rights from the 20th century is just the first generation of a legal corpus fated to expand by itself. For instance, International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR) followed the UN Charter and the Universal Declaration even if they are not the only international treaties addressing human rights:

– The Convention on the Elimination of All Forms of Discrimination (December 21st, 1965)
– Convention on the Suppression and Punishment of the Crime of Apartheid (November 30th, 1973)
– U.N. Convention on the Rights of the Child (November 20th, 1989)
– The Convention on the Elimination of All Forms of Discrimination Against Women (December 18th, 1979)

All these treaties seem to pursue an opposite goal to the all-inclusive goal of primary treaties the United Nations gave us such as the Declaration of Human Rights. However, these treaties are more than necessary since they guarantee with an additional force the protection of minorities and specific groups subject to injustices and violations of fundamental rights. Our world changes every day as new legal issues emerge with a relentless mechanism. The only choice we have is to keep up and provide citizens of the world with all the legal protection we can offer. Consequently, we have to accept that the Universalist human rights body has to remain a utopia but it remains a utopia we can have the audacity to pursue. Our duty as a researcher, professor, lawyer and practitioner in this particular area of law is to fill the blanks and connect the dots for a, not Universalist, but more perfect international human rights law.
“All this will not be finished in the first one hundred days. Nor will it be finished in the first one thousand days… nor even perhaps in our lifetime on this planet. But let us begin.”

Malcolm Biiga

May 2016

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