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The universal declaration of human rights in the 21st century : a living document in a changing world
- Bagikan:
I: The Long and Influential Life of the Universal Declaration of Human Rights
The Universal Declaration of Human Rights (UDHR) is a monumental embodiment for our time of the ancient idea that we all belong to a single global community, and that each human being has moral ties and responsibilities to all others.
From the start, endorsed and adopted in 1948 by most Member States of the UN, the Declaration has been a beacon and a standard, its influence both wide and deep. The UDHR has been and is an unprecedented educational and cultural force, making people conversant with the idea of human rights, providing a widely accepted text enumerating those rights, delivering an articulate focus for what might otherwise be timid and inarticulate concerns, and sending out a message that an injustice anywhere is a threat to justice everywhere. Today, the UDHR, translated into 350 languages, is the best-known and most often cited human rights document on Earth. By setting out, for the first time, fundamental rights to be universally protected, it is a milestone in the history of human interactions and the cause of human rights.
The Global Citizenship Commission both affirms the continuing relevance and inspirational force of the UDHR and seeks further recognition and respect for human rights for all citizens of the world, in light of developments in the 21st century. The social, political, and legal environment has been transformed since 1948, and our global interconnectedness and dependence have diminished our moral distance. Yet as a living document, the UDHR demands renewed attention and speaks urgently to the issues of today. In this report, we assess the life to date of the UDHR: its foundational principles, its profound impact, and its legacy. We consider the evolving understanding of human rights and identify certain rights that were not addressed specifically in the 1948 document but that arguably reflect our understanding of rights today. We examine the issues of limitations and derogations, social and economic rights, where the responsibility for upholding human rights lies, and – critically – implementation.
The cornerstone of the Declaration is the concept of human dignity: "recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world.” Sadly, for millions of people, the recognition of their inherent dignity is far from a reality. To us, this speaks not of the failure of the UDHR but of the need to keep re-examining the relevance of these standards, and to continue to challenge ourselves to find better ways to achieve our shared goal of a common human dignity.
II: The Evolving Understanding of Rights
Globalization has changed the terms of interaction in global life, and it has created space both for implicit extensions of and explicit additions to the content of human rights doctrine. Since 1948 there have been many important human rights conventions that have addressed some of the issues we identify. Nevertheless, it is essential to recognize a number of rights that we think have come into clearer focus after seventy years and need more emphasis than they received in the Declaration. These fall into three broad categories.
First, the rights of members of specific groups, comprising the rights of women; the rights of children; the rights of the disabled, including the profoundly disabled; rights related to sexual orientation; and the rights of prisoners.
Second, the rights of groups as such, comprising the right to national self-determination, including regional autonomy and subsidiarity; the rights of indigenous peoples; the prohibition against ethnic cleansing; and the rights of peoples prejudiced at the national or communal level by climate change.
Third, rights related toother issues affecting vital interests, comprising migration; statelessness; administrative justice; corruption; privacy from state or corporate electronic surveillance; access to the Internet and electronic communication on a global scale; extreme poverty and deep inequality; healthcare; and a safe, clean, healthy, and sustainable environment.
Each of these issues demands the international community’s attention, some because of the need for a clear articulation and recognition of rights and all because of the need to take concrete steps to ensure their implementation. For example, on the issue of migration, the Commission recommends that the international community urgently:
·Implement Sustainable Development Goal (SDG) 10.7, which calls for states to "facilitate orderly, safe, regular and responsible migration and mobility of people, including through the implementation of planned and well-managed migration policies.”
·Strengthen the international refugee protection system.
·Consider adopting a new international convention on refugees and migrants.
And to ensure the protection of the rights of children, we recommend that:
·The international community support the creation of a Children’s Court, with the power to receive and adjudicate petitions from children and their representatives on violations of the Convention on the Rights of the Child, to issue legally binding judgments, and to investigate areas of concern such as child labor, child slavery, and child marriage.
·The International Criminal Court investigates and prosecutes crimes against children within its remit to the full extent of the law.
·The UN Security Council convenes a "Children’s Council” – an annual review on children’s rights, building on its existing debate of the plight of children in armed conflict.
·At the national level, all states create accessible complaint mechanisms for the resolution of violations of the rights of children, and consider establishing a Youth Parliament, Children’s Commissioner, and dedicated budget for Children.
III: Limitations and Derogations
Article 29(2) of the UDHR sets out the circumstances in which limitations on individual rights are permissible. The Declaration as a whole should be read as the assertion of a strong presumption in favor of human rights and Article 29(2) should be read as placing the burden of proof on anyone who seeks to limit them.
Unlike the UDHR, the International Covenant on Civil and Political Rights (ICCPR) makes separate and extensive provision for the derogation of rights in national and/or international emergencies. However, the increasing reliance in the modern world on long-term, continuous states of emergency as justifications for human rights derogations is not dealt with adequately by the ICCPR’s formulations, as they envisage relatively short-term, clearly demarcated emergencies. The international community should develop standards governing long-term derogations of human rights in national or international emergencies, to ensure that this process is not abused.
In recent years, there have been military interventions that contravene the UN Charter’s prohibition on the use of force. And states have responded to the rise and persistence of international terrorism by employing tactics of surveillance, detention of suspects, and targeted killing. The Commission emphasizes that each of these developments raises human rights issues, and calls on the international community to develop standards governing the use of force and the response to international terrorism that are derived from current conceptions and enduring foundations of human rights.
Lastly, it is critical to take a comprehensive approach to terrorism that encompasses not only essential security-based counter-terrorism measures, but also systematic preventative measures that address the root causes of violent extremism. These include lack of socioeconomic opportunities; marginalization and discrimination; poor governance; violations of human rights and the rule of law; prolonged and unresolved conflicts; and radicalization in prisons. The creation of open, equitable, inclusive, and pluralist societies, founded on the full respect of human rights and with economic opportunities for all, represents the most tangible and meaningful alternative to violent extremism and the most promising strategy for undermining its appeal.
IV: Social and Economic Rights
Social and economic rights are vital. They reflect genuine human needs that every state has an obligation to attend to, within existing resources, in the interest of all those committed to their care. We think it is fitting and valuable that the UDHR enshrined social and economic rights in the same document as civil and political rights, and thus to perceive human rights as a whole in the context of a single declaration.
The social and economic provisions of the UDHR should be interpreted to mean that everyone is entitled to certain minimum standards of health, education, and social security. The concept of dignity – while abstract – provides a yardstick against which to set minimum measures. The extent of available resources in each society is one determinative factor, though the UDHR also imposes constraints on the allocation of such resources as there are. The Commission believes that the UDHR (and the International Covenant on Economic, Social and Cultural Rights (ICESCR)) should be read as endorsing an ongoing global conversation about what the minimum provision should be and a rule of progress to the effect that the human rights framework calls for steps to improve the position of everyone, including the least advantaged in society.
States have front-line responsibility for the social and economic well-being of their citizens. Fair economic growth has a critical role to play in this, and the Commission believes it is crucial to see a stronger connection between economic policy and the instruments of human rights. It is evident, however, that the challenges faced by many states cannot be resolved entirely by actions in those states alone. There is an overwhelming moral case for interpreting the social and economic rights provisions of the Declaration as placing obligations on the international community to alleviate world poverty. International aid and transfers, aimed at strengthening the capacity of recipient states to secure the social and economic rights of their citizens, thus have an indispensable role to play. Responsibilities among the international community to uphold social and economic rights are in the Commission’s view held not only by states, but also above the level of states by international organizations and below the level of states by corporations and individuals.
It is sometimes said that, although the rights in the Declaration are presented as an interconnected body of principles, complementary and mutually supportive, there are in fact serious conflicts among them. It is sometimes argued, for example, that the rights to freedom of speech or assembly may conflict with the right of people not to live in poverty, that the only way to lift large numbers of people out of poverty may involve authoritarian rule. In certain very specific real-world settings, our ability to fully implement one right may conflict with our ability to fully implement another, at least temporarily. However, any such claim would be very hard to establish and must always be subjected to the most rigorous scrutiny. Furthermore, it is always a serious question whether any particular proposed trade-off is morally justifiable.
V: Responsibility for Human Rights
The UDHR does not specify who carries the responsibilities corresponding to the rights it enumerates. Yet the role of states remains essential. Given the realities of our world – this was even more the case in 1948 – states must be regarded as the main guarantors of the rights of their own citizens. The laws and national constitutions of states, in most instances, will be the first recourse to address any violations of human rights, and should be regarded as the ordinary mode of implementation. In a globalized world, it is also the duty of each state to concern itself to a certain extent with the human rights of persons outside its borders.
While states have the primary responsibility for ensuring the human rights of their citizens, there are numerous examples of situations where governments no longer control substantial tracts of territory, no longer control the military or have a monopoly on force, lack legitimacy, and are unable or unwilling to provide public services. In these situations, who is responsible for the human rights of the population? This issue needs to be urgently addressed by the international community.
The fact that one entity – like a state – has responsibility for a given right is quite compatible with other entities also having their own obligations. Rights generate waves of responsibility, and those responsibilities may fall on an array of duty-bearers. Though national state responsibility is primary, sub-national governments, international institutions, corporations, and private persons each and all have a common duty to ensure recognition of human rights and accept responsibility to secure them. Rights-bearers themselves also have responsibilities with respect to their own rights and responsibilities as rights-bearers to the rights system as a whole and to society generally.
It would be a mistake to develop a rigid or closed model of responsibility for rights, or to conclude that rights are of no value until responsibilities are actually specified. The advantage of specifying rights first is that this provides a basis for thinking about the duties of the state and other entities. The Commission has judged that it is both sensible and essential to retain an open and developing sense of where responsibilities lie, since the environment in which rights have to be satisfied is constantly changing.
VI: Implementation of Human Rights
State of play on representative rights
In our examination of the implementation of select rights in the Declaration – the anti-slavery provision; the anti-torture provision; the free expression provision and the free association provision; and the education provision – a number of themes emerged. First, the UDHR represents the founding document in a process of progressive elaboration of human rights. Second, historic progress has been made in the promotion and protection of rights since 1948, including the development of a body of human rights law and implementation mechanisms that simply could not have been envisioned in the 1920s and 1930s. Third, despite the gains, we must recognize and respond to the reality that human rights continue to be violated on an alarming scale across the globe. Fourth, the fullness of human rights will only be achieved through multiple overlapping and coordinated mechanisms – that operate at both the international and national levels, and which engage both governmental and non-governmental institutions.
Suggestions on implementation
The Commission analyzes and advances recommendations in respect of four areas.
·UN system of human rights implementation.The Commission supports a number of existing proposals for improving the UN system for the protection of human rights. We call on the UN to establish a commission to consider these and other proposals for realizing Article 28 of the Declaration.
·The UN should seek to ensure that the problems and priorities identified through UN human rights mechanisms command sufficient attention and action from the international community and the UN as a whole, including its security and development endeavors.
·The UN should expand the Office of the UN High Commissioner for Human Rights’ regional and country field presence and significantly raise financial support for priority human rights activities.
·The UN Secretary-General should exercise his or her power under Article 99 of the UN Charter to raise human rights issues for consideration by the Security Council whenever advised to do so by the High Commissioner for Human Rights, the Special Procedures of the Human Rights Council, or the heads of the human rights components of UN peace missions.
·The permanent members of the UN Security Council should voluntarily suspend their veto rights in situations involving mass atrocities.
·The UN should consider ways in which new forms of technology can amplify human rights accountability.
·National and regional legal systems.The judiciary has a pivotal role to play in upholding human rights. Only an independent judiciary can render justice impartially on the basis of law, thereby assuring the rights and fundamental freedoms of the individual. On this basis:
·The international community must redouble its resolve to safeguard and enhance the independence and effectiveness of judiciaries worldwide, in line with existing international principles of the rule of law.
·The international community should aim to bolster the role of existing regional human rights courts and also encourage the development of new regional human rights courts by the League of Arab States and in Asia and the Pacific. All UN Member States should agree to submit themselves to the authority of international tribunals whose jurisdiction can appropriately – geographically or otherwise – be extended to them.
·At the global level, the UN should consider the creation of a World Human Rights Court, consistent with the principle of complementarity.
·Non-governmental organizations.Non-governmental organizations play a frontline role in highlighting the importance of the rights protected in the UDHR, in drawing attention to shortcomings in their implementation, and in naming and shaming governments that are guilty of violations or of failing to protect their citizens from human rights abuses. In light of this, it is especially important that states make reasonable accommodation for NGOs aiming to promote, protect, and investigate violations of human rights.
·Human rights education.Human rights education also has an indispensable role to play. Fostering a universal culture of human rights among all individuals and institutions through transformative human rights education "from the bottom-up” can add important impetus to the adoption and enforcement of legal standards by governments "from the top-down.” The Commission calls on all governments, international organizations, and NGOs to encourage and support transformative human rights education.
Sovereignty
The era of human rights that was initiated by the UDHR has disposed of any notion of state sovereignty that purports to insulate states from external criticism of internal rights violations. One principle the UDHR represents, and rightly so, is that human rights in every country are the world’s business. The Commission wishes to affirm: first, that countries may not misuse their national sovereignty as an excuse for insulating themselves from external pressure on human rights; and second, that it is legitimate for states to raise human rights issues in conducting foreign relations.
The international community needs a toolkit of governmental and multilateral responses to rights violations that is more legitimate and more sophisticated than we have today, and which relies on mechanisms other than the use of force. There are many instruments of change used: some widely acknowledged, like trade sanctions; some far less recognized, such as human rights "name and shame” mechanisms; and others perhaps less clearly articulated, such as providing shelter to migrants fleeing from neighboring countries in times of great distress. We recommend that a study be undertaken of what governments do when they genuinely want to seek to change another government’s behavior, and what governments are susceptible to in terms of real world pressures on human rights.
The Commission supports the concept of the responsibility to protect (RtoP) governing the process of humanitarian intervention. However, intervention under the auspices of RtoP will be far from regular and will be appropriate only in the case of egregious and widespread human rights violations. The violation of rights, the erosion of rights, or the failure to fulfill rights are matters of concern, even when they are not widespread. Any time a violation occurs – which may affect one person or one thousand – we must take notice. Underpinning this imperative is the principle that the violation of the rights of anyone is the concern of everyone.
VII: Human Rights and a Global Ethic
The promulgation of the UDHR in 1948 made a difference in how people saw their place in the world and their relations with their state and with each other. This is in itself a valuable contribution, quite apart from the securing of the rights actually listed in the document. Over the decades since 1948, the UDHR has provided the rudiments of a "common conscience” for humanity. In the words of Immanuel Kant, a violation of rights in any place is now felt all around the world. The international community is continuing to build on this, and the UDHR should be regarded as one of the pillars of an emerging global ethic for our increasingly interdependent world.
Detail Information
| Item Type |
E-Book
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| Penulis |
Gordon Brown - Personal Name
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| Kode Prodi PDDIKTI | |
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| Bahasa |
English
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| Penerbit | Open Book Publishers : Cambridge, UK., 2016 |
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| Subyek | |
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| Copyright |
2016 NYU Global Institute for Advanced Study
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