By Laksiri Fernando –
The adoption of the Universal Declaration of Human Rights (UDHR) on 10 December 1948 by the United Nations, 48 countries voting in favour, 8 abstaining and none against, has marked a new era in human history creating the possibility of modern societies moving towards achieving a wide range of important human rights through legal enactments supported by institutional and policy changes not only in the sphere of civil and political rights but also in the realms of economic, social and cultural rights. What we celebrate this year is the 64th anniversary of the UDHR.
The importance of the UDHR, succinctly written in 30 articles with an equally lucid preamble, as a social manifesto is perhaps higher than the importance of the Communist Manifesto proclaimed a century ago in 1848 by Karl Marx and Frederick Engels. If the Communist Manifesto attempted to achieve the objectives of socialism, the UDHR combines both liberal and socialist aspirations and sets forth some primary conditions or minimum “common standards of achievement for all peoples and all nations.” The UDHR in this sense is the culmination of two movements in human history: liberalism and socialism.
If John Locke was the philosopher who first emphasised the ‘right to individual freedom’ in modern times in his two Treatises of Government (somewhere after 1681), who even referred to Ceylon, Thomas More was the thinker who emphasised the ‘right to social equality’ as a modern social aspiration in his Utopia (1516). He also referred to Ceylon. In terms of democratic transformation, one may say that the UDHR in its formulations took more inspiration from the American Revolution (1777) and the French Revolution (1798); but inspiration from the Russian Revolution (1917) is also evident in the text. More clearly, the work of the International Labour Organization (ILO) since 1919 on labour and economic rights was a decisive influence. That is his how a combination of both ‘political rights’ and ‘economic rights’ are present in the UDHR, although one may say in an unbalanced fashion.
Mahatma Gandhi writing on an initial draft of the UDHR in 1947 briefly emphasised the importance of human duties; an Asian concern so to say. I asked one of the drafters of the UDHR, John Humphrey, in 1987 in Malta when I met him there, whether they could consider Gandhi’s views in finalising the UDHR and he pointed out Article 29 (1) which says: “Everyone has duties to the community in which alone the free and full development of his personality is possible.” This is something that the UN should elaborate and develop. However, the rights in the UDHR are not conditioned on duties of any sort; conditioning is the modus operandi of many authoritarian regimes throughout the world.
There was a particular context within which a declaration of human rights was necessary with a future and a universal vision. That was the advent of several forms of fascism (Germany, Italy and Japan) and the horrendous human rights violations perpetrated during the Second World War. While around 20 million died in direct military confrontations, civilian casualties were double of that amount including those died of war related diseases and famine. The Holocaust claimed 11 million lives; and Japanese invasions at least around 6 million in Asia. As the Preamble of the UDHR noted “disregard and contempt for human rights have resulted in barbarous acts which have outraged the conscience of mankind.”
With the above brief preface, this article attempts to critically assess the contents of the UDHR for mainly educational purposes, keeping the human rights issues in Sri Lanka constantly in mind.
There are eight paragraphs in the Preamble. First it says that ‘inherent dignity’ and ‘equal and inalienable rights’ of ‘all members of the human family’ are the foundation of ‘freedom, justice and peace in the world.’ Different members but one human family or ‘common humanity’ is the concept. SWRD Bandaranaike was one who referred to the concept of ‘common humanity’ in his early writings in 1920s. Then ‘freedom, justice and peace’ are enunciated in the UDHR as higher values or objectives of the human family and ‘dignity and rights’ are considered the means or foundations of those objectives. The rights are characterized in two adjectives: ‘equal and inalienable.’
The second paragraph justifies the need for human rights protection. It indirectly refers to the background to the Declaration ‘which outraged the conscience of mankind’ and rightly claims that ‘disregard and contempt for human rights have resulted in barbarous acts.’ It refers to four freedoms; ‘of speech and belief’ on the one hand, and freedom ‘from fear and want’ on the other hand, as the ‘highest aspirations of the common people.’ The full text of the third paragraph reads as follows.
“Whereas it is essential, if man is not to be compelled to have recourse, as a last resort, to rebellion against tyranny and oppression, that human rights should be protected by the rule of law.”
Although qualified as ‘a last resort’ and ‘against tyranny and oppression,’ this paragraph obviously endorses a sort of ‘right to rebellion.’ This is something taken directly from the 18th century French Declaration on the Rights of Man. The fourth, fifth, sixth and the seventh paragraphs highlight various reasons why the United Nations in particular needs to proclaim this Declaration. (1) ‘To promote the development of friendly relations between nations’ (2) ‘To further the affirmation in the Charter the faith in fundamental human rights,’ (3) ‘To fulfil the pledge the member states have given to respect and observe human rights and fundamental freedoms in cooperation with the United Nations’ and (4) As ‘a common understanding of these rights and freedoms is of the greatest importance.’
In the final paragraph it declares that “Now, Therefore THE GENERAL ASSEMBLY proclaims THIS UNIVERSAL DECLARATION OF HUMAN RIGHTS as a common standard of achievement for all peoples and all nations.”
It should be kept in mind that by this time in 1948 there were only 56 members in the United Nations and many of the Asian and particularly African countries were still colonies or dependent territories. However, it is not on the basis of the number of countries or the nature of countries that the Declaration’s validity or universality should be assessed but mainly by the contents and the relevance of the contents. Moreover in 1993, at the World Conference on Human Rights in Vienna, 171 countries affirmed the ‘universal nature of human rights’ without any dissent.
It is important to highlight what the Declaration said about the promotion and protection of human rights in the Preamble. In effect, two recommendations were made. It said that ‘all peoples and all nations, keeping this Declaration constantly in mind, shall strive (1) by teaching and education to promote respect for these rights and freedoms and (2) by progressive measures, national and international, to secure their universal and effective recognition and observance.’
Articles 1 and 2 can be considered the foundation principles of the Declaration and perhaps of all human rights with some qualification. Article 1 says that “all human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood.” One may argue that the formulation is too abstract and a better purpose would have served if it was formulated to say ‘all human beings should be free and equal in dignity and rights.’ The unfortunate fact is that many of us are not free or equal by birth or thereafter. Equally questionable is whether the humans are always ‘endowed with reason’ while it is correct to say that they “should act towards one another in a spirit of brotherhood.” But for a ‘spirit of brotherhood,’ not only rights but duties are also of paramount importance.
From a conceptual point of view, Article 2 is more acceptable than Article 1. It is pronounced against the abhorrent discrimination in society. It says “everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.” All human rights here mean not only the civil and political rights but also the economic, social and cultural rights. This is something often forgotten. Equally forgotten is the inequality or discrimination based on national boundaries or backgrounds. Since the foundation of the Universal Declaration, very little effort has been paid to eliminate the vast disparities and discrimination that exists within and between nations based on ethnicity, nationality or what might be construed as ‘race.’ Vast disparities exist between nations and countries in terms of international trade, economic relations and in monetary regimes such as the World Trade Organization, the World Bank and the IMF.
The main objective of human rights philosophy is epitomised in Article 2 and it is a meeting point of both liberal and socialist values perhaps with different emphases. In this sense, it is closer in essence to the latter – socialism – than to the former. It is primarily the philosophy of socialism that strives for equality and detests discrimination. If each country and the world community under the UN had endeavoured to achieve human rights (also duties) based on this article during the last six decades, the situation in the world today would have been different.
Civil and Political Rights
There is no question that civil and political rights took a predominant place in the Declaration. This is something which is criticised as the Western influence, nevertheless important. This is clear from Articles from 3 to 21. Article 3 pronounces “the right to life, liberty and security of person” as the main fundamentals of all civil rights. Freedom from slavery or servitude is also highlighted as a right in Article 4 also with the objective of ‘prohibiting slave trade in all their forms.’
The primary aim of Article 5 is to prohibit not only ‘torture’ but also ‘cruel, inhuman or degrading treatment or punishment.’ The importance of this right is self-evident as torture could be considered the most inhuman and physically intolerable form of treatment to a person and his/her dignity. For proper civil rights there should be a firm legal foundation. As Article 6 proclaims, “Recognition of everyone as a person before the law” is fundamental. Equally important is the ‘equality before the law and the equal protection of the law without any discrimination’ as Article 7 pronounces.
Article 8 not only prescribes that ‘everyone has the right to an effective remedy by a competent national tribunal’ but also promotes that ‘fundamental rights should be granted to everyone by the constitution or by law.’ This is one article that has generated some progress throughout the world, different countries incorporating fundamental rights in their constitutions or in separate bills of rights. The subsequent three Articles of 9, 10, and 11 are also in respect of civil rights of a person in the legal sphere proclaiming that “no one shall be subjected to arbitrary arrest, detention or exile,” “everyone is entitled to full equality to a fair and public hearing by an independent and impartial tribunal,” and the age old liberal legal dictum that “everyone charged with a penal offence has the right to be presumed innocent until proved guilty” and so on.
There is no question that all these rights are important for a democratic system with rule of law, independence of the judiciary and a system of fair trial with legal equality. Without these rights a society will function ‘oppressively’ and ‘tyrannically.’ It is important to note that Articles 12 and 13 respectively proclaim the ‘right to privacy’ and the ‘freedom of movement’ also incorporating other necessary conditions for the proper exercise of these rights and freedoms. For example, the freedom of movement includes “the right to leave any country, including his (sic) own, and to return to his (sic) country.” It is also in this context that Article 14 pronounces the “right to seek and to enjoy in other countries asylum from persecution.” It should be noted at this stage that the language of the Declaration is ironically ‘discriminatory’ using a male terminology instead of gender free language, as previously highlighted with (sic).
The ‘right to have a nationality’ and the ‘right to found a family’ respectively proclaimed in Articles 15 and 16 are important both as a civil right and a social right. Men and women “are entitled to equal rights as to marriage, during marriage and at its dissolution.” Most importantly, it declares quite akin to the treasured ‘Asian value’ that “the Family is the natural and fundamental group and unit of society and is entitled to protection by society and the State.”
Property is also declared as a civil as well as a social right and Article 17 declares “everyone has the right to own property alone as well as in association with others” and “no one shall be arbitrarily deprived of his (sic) property.” During the cold war period, based on the ‘communist’ theory, it was argued that private property should not be a human right and in fact it was left out from the International Covenant on Economic, Social and Cultural Rights (ICESCR) in 1967. However, from the subsequent experience, particularly in the ‘communist’ countries, it is abundantly clear that some form of private property is necessary including the freedom for business and industry to safeguard other rights and also for the proper functioning of an economy. The State possibly cannot perform all economic functions. The application of human rights in business therefore is a major international concern today. A premier organization dealing with the subject is the Institute for Human Rights and Business based in London. The purpose of ISO 26000 is also to deal with the subject.
Articles 18 and 19 perhaps can be considered the pinnacle of human rights in the Declaration. The first intends to ensure “the right to freedom of thought, conscience and religion.” “This right includes freedom to change his (sic) religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his (sic) religion or belief in teaching, practice, worship and observance.” The above are self-evident formulations on freedom of thought and conscience without much need for interpretation. They are necessary conditions for ensuring human dignity; in some cases in the form of ‘freedom of religion’ and in others in the form of ‘freedom of thought’ or both. It is in connection with the freedom of conscience that the “right to freedom of opinion and expression” are articulated in Article 19. Emerging as a civil right of conscience in the previous article, this right also takes the form of a political right that “includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.” The application of Article 19 is undoubtedly a controversial one because of its political sensitivity and hostility from many authoritarian regimes including Sri Lanka today.
The political rights proper in the Declaration begin with Article 20 but strangely limited to only two articles. Article 20 is about “the right to freedom of peaceful assembly and association” and this obviously means the association of political parties and other political organizations although not spelled out. At least this article unlike Article 19 gives some moral indication for the ‘assembly and association’ by qualifying them as ‘peaceful.’ It is in a way unfortunate that the most important ‘democratic rights of the people’ and the ‘importance of democracy for the society’ were limited to one single article and that is Article 21. All aspects of this article are important for human rights, but the question is not about what is included but what is excluded or not spelled out.
It says “everyone has the right to take part in the government of his (sic) country, directly or through freely chosen representatives” but at what levels or in what forms are not spelled out. It further says “everyone has the right of equal access to public service in his (sic) country” but does not spell out the feasible benchmarks. Most important undoubtedly is the following. “The will of the people shall be the basis of the authority of government; this will shall be expressed in periodic and genuine elections which shall be by universal and equal suffrage and shall be held by secret vote or by equivalent free voting procedures.” Perhaps no further comment is necessary on this formulation.
Economic, Social and Cultural Rights
From Articles 22 to 27 some fundamental economic, social and cultural rights are spelled out. However, what is apparent is a sort of carelessness in writing these rights in the Declaration juxtaposing several rights together sometimes undermining their significance. For example, Article 22 declares “everyone, as a member of society, has the right to social security.” This is important and it should have been highlighted separately as a single article like many articles on civil and political rights i.e. Articles 3 and 6. But in the same sentence the general principle that everyone “is entitled to realization, through national effort and international co-operation and in accordance with the organization and resources of each State, of the economic, social and cultural rights indispensable for his (sic) dignity and the free development of his (sic) personality” is declared by deflating both principles.
Likewise it is in Article 23 that the ‘right to work’ with ‘free choice of employment’ and ‘just and favourable conditions of work and to protection against unemployment’ all are spelled out in the same Section (1). Then there are four sections for the same article. Section (2) is about “the right to equal pay for equal work” “without any discrimination.” Section (3) is about the “favourable remuneration ensuring for himself (sic) and his (sic) family an existence worthy of human dignity, and supplemented, if necessary, by other means of social protection.” Here also women are forgotten at least in the nomenclature. It is unfortunately in the same Article in Section (4) that the “right to form and to join trade unions for the protection of his (sic) interests” spelled out.
It is obvious that the drafters did not pay adequate attention on economic, social or cultural rights. Nevertheless, Article 24 declares quite satisfactorily that “everyone has the right to rest and leisure, including reasonable limitation of working hours and periodic holidays with pay.” Article 25 is about ‘social security’ and related ‘social services’ that declares “everyone has the right to a standard of living adequate for the health and well-being of himself (sic) and of his (sic) family, including food, clothing, housing and medical care and necessary social services, and the right to security in the event of unemployment, sickness, disability, widowed, old age or other lack of livelihood in circumstances beyond his control.” This Article is also important in respect of the rights of the child which declares “motherhood and childhood are entitled to special care and assistance” and “all children, whether born in or out of wedlock, shall enjoy the same social protection.”
Article 26 is about the ‘right to education’ which covers several important principles for ‘free and compulsory elementary education,’ ‘the generally available technical and professional education’ and ‘higher education which should be equally accessible to all on the basis of merit.’ While ‘parents have a prior right to choose the kind of education that shall be given to their children,’ the article also elaborates on some principles on which education should be based and directed. It is important to quote the relevant section in full as follows.
“Education shall be directed to the full development of the human personality and to the strengthening of respect for human rights and fundamental freedoms. It shall promote understanding, tolerance and friendship among all nations, racial or religious groups, and shall further the activities of the United Nations for the maintenance of peace.”
Although the Declaration is supposed to cover ‘cultural rights of the people,’ apparently it is the most inadequate. Article 27 declares “everyone has the right freely to participate in the cultural life of the community, to enjoy the arts and to share in scientific advancements and its benefits.” Here the cultural rights are reduced to individual rights in participating in the community. Although that is important, the most pressing human rights issue has always been the cultural rights of different ethnic and religious communities to protect and promote their language, culture and customs without inhibition and discrimination. This aspect has completely skipped the purview of the Universal Declaration giving rise to many controversies and ambiguity. The most important language rights are not included in the Declaration.
The final three Articles 28, 29 and 30 are crucially important in understanding the significance as well as the philosophy of the Universal Declaration further. Article 28 also invokes an overarching international right “to a social and international order in which the rights and freedoms set forth in this Declaration can be fully realized.”
It is unfortunate that very little attention has so far been paid to this ‘international right’ which undoubtedly requires a complete overhauling of the present international economic and political order, but in the right and progressive direction, within which the rights and aspirations of the majority of the world population are neglected and undermined. But this is an objective which should be achieved through international cooperation and not confrontation. Many of the root causes of human rights violations are directly and indirectly located in the present international economic and political order. While the violations within individual countries should be eliminated, equally important is to address some of the root causes that are in the international sphere.
As it has already been mentioned in the early part of this article, the full meaning of Article 29 in respect of human duties and responsibilities should be brought to the focus of human rights efforts in both protection and promotion. Article 29 further says “in the exercise of his (sic) rights and freedoms, everyone shall be subject only to such limitations as are determined by law solely for the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality, public order and the general welfare in a democratic society.”
Article 30 of course is a protection clause. It prevents abuse or misuse of human rights in the name of human rights and says “nothing in this Declaration may be interpreted as implying for any State, group or person any right to engage in any activity or to perform any act aimed at the destruction of any of the rights and freedoms set forth herein.”
There is only one single conclusion that I would like to emphasise on this Human Rights Day. All others might emerge out of that conclusion. That is the crucial importance of ‘education as a human right’ and ‘education for human rights’ also as a human right. This is something terribly neglected or absent in the so-called “National Action Plan for the Protection and Promotion of Human Rights, 2011-2016.” Only FUTA has taken some concrete action to arrest the deterioration of education in Sri Lanka demanding for the allocation of 6% of the GDP for education which is so far adamantly denied by the government on various excuses. As Article 26 of the UDHR says “education shall be directed to the full development of the human personality and to the strengthening of respect for human rights and fundamental freedoms.” Full development of the human personality includes the development of both the social and technical skills of a personality and her/his employability and professional development.
In terms of the protection and promotion of human rights, the Article also says, education “shall promote understanding, tolerance and friendship among all nations, racial or religious groups, and shall further the activities of the United Nations for the maintenance of peace.” This should be a benchmark for all schools and universities in their educational programmes. It is also the Preamble of the UDHR that asked all the member states “keeping this Declaration constantly in mind” to ‘strive by teaching and education to promote respect for these rights and freedoms.”
The UDHR is an inspirational document written in a language that could be understood by anyone with a basic education or literacy. The distribution of this Declaration in Sinhala, Tamil and English in schools and workplaces as appropriate and the organization of mass discussions on the subject of human rights can make a considerable headway in facing the increasing challenges of human rights issues in the country.
 The year of publication of Two Treatises is of dispute. However, the reference to Robert Knox’s Ceylon published by Chiswell in 1681 indicates a subsequent date for John Locke’s work.