Raoul Wallenberg Institute of Human Rights and Humanitarian Law & Lund University, Sweden
27 November 2017
Colleagues and Friends
I am honoured to be delivering the Anna Lindh Lecture, in recognition of the life and work of the extraordinarily talented late Foreign Minister of Sweden, and I am very grateful to the Raoul Wallenberg Institute, the Association of Foreign Affairs and Lund University for this kind invitation.
When I arrived in the United Kingdom 30 years ago to pursue my postgraduate studies, we – the foreign students were made to first register at the local police station. It meant queuing up under a sign which read: foreign aliens here. Welcome to the United Kingdom –
I am here to tell you this: there are no aliens. In human rights terms, the only qualification of relevance, the only issue that matters to the law, is being human. Whatever the other descriptions lighting up the many identities we hold – whether we speak of gender, nationality, belief, ethnicity, sexual orientation or any other characteristic, they cannot disqualify us from the species we all belong to – or from the rights we all hold. Much as it may surprise Aung San Suu Kyi, the Rohingya do have rights.
You may think: so obvious is this point, why even bother to mention it? Our curse today, the tragedy of the hour, is that I am forced to. Because the universality of rights is being contested across much of the world. It is under broad assault from terrorists, authoritarian leaders, populists and those who claim to back “traditional values”. All seem only too willing to sacrifice, in varying degrees, the rights of others, for the sake of power. Their combined influence has grown at the expense of the liberal order.
Critical observers tell us that if these actors are succeeding it can only mean the universal human rights community is failing – that we have long been failing. If the Universal Declaration of Human Rights was written almost 70 years ago to improve the world; well, the critics say, the current global fragility of the human rights agenda tells the story. Ultimately, the indictment continues, the Declaration has been too marginal to make a difference. The philosophical foundations that underpin it, they say, are not universal, but Western, and liberal; while we, the human rights community, are also considered arrogant because we make too many assumptions about our legitimacy. Self-appointed angels, we are called by some.
Thus we are seen as too European, too leftist, and inexcusably naïve. If compliance by states in respect of human rights law is weak, this is because it means our international legal instruments are so detached from reality as to have become irrelevant to these states.
These critics also tell us we must begin to think differently. To accept that we cannot demand that every country ensure freedom for gay, lesbian or trans people, and uphold women’s equal rights to make their own decisions about their lives. That we should accept the kaleidoscope that is global culture, religions or belief systems, and allow local authorities to define for themselves what is an appropriate human rights agenda. By encouraging and supporting local activists in pursuit of their goals, hey presto, a more positive result will emerge.
It will not surprise you in the slightest to hear that I consider this analysis problematic. And I will be devoting this Anna Lindh Lecture to a brief deconstruction of some of the main attacks on universality, before concluding with a few observations.
I begin by agreeing with the general proposition that we, in the human rights community, need a sharper self-critical eye. And, right off the bat, there are two questions that need to be asked.
In the second draft of the Universal Declaration, prepared by René Cassin, the opening phrase of the preamble is cast in the starkest of terms: “That ignorance and contempt of human rights have been among the principal causes of the sufferings of humanity.”
Like so many of his generation, Cassin – who was awarded the Nobel Peace Prize in 1968 for his work on the Declaration – was wounded in battle in 1914 and endured life-long injuries as a result. He was far from being some ivory-tower thinker, closeted away from the world. After the traumas of yet another war and the Holocaust, when he penned the word “sufferings” into the preamble, for him these sufferings were very real.
If reflected upon today, would it not be fair for us to ask whether “ignorance and contempt of human rights” is also an accurate portrait of where we are now? Just look around, from Trump to Duterte, to Aung San Suu Kyi, Sisi, Orban, Erdogan and many others. And if we accept this to be true, aren’t the critics right to assert that we have lost the plot, that the Universal Declaration – designed to shield us from massive abuses – is indeed crumbling?
To begin with, we would have to admit a push-back of frightful proportions is occurring, based on ignorance and contempt of human rights. And, as the advocates of universal human rights, we must accept our share of the responsibility. How can it be that torture is still contemplated, indeed practised outright in many countries; that millions of people worldwide are deprived of their right to a dignified life, access to education and health, are hounded, muzzled, detained without due process, large numbers made to disappear without a trace? I do not deny that many of us feel guilt about this. If ignorance and contempt of human rights are so widespread, then
shame on us. We should have been more persuasive, more forceful in promoting our cause – or shrewder in outwitting our opponents: and I will return to this point shortly.
However – and forgive me for sounding defensive – when our detractors weigh in so heavily on the weaknesses of the human rights movement, they seem to be excusing the states themselves. Rather than tar and feather the actual perpetrators of these horrors, it seems more appealing to critics to find fault with
us, the human rights community – as if no other international actor could have prevented the violations.
This is frustrating, because it overlooks some basic facts.
The Universal Declaration of Human Rights, the two international covenants and seven subsequent international human rights treaties – from the prohibition of torture to the rights of persons with disabilities – were drafted, agreed to and signed by governments, and ratified by acts of parliament, before entering into force as binding law for those states that acceded to them. All countries are party to at least one human rights treaty. And the treaties lay out the international standard for all states.
Governments were not coerced by the UN, or the human rights community, into creating this system. Their actions were voluntary inasmuch as they were determined by national decisions. The argument invoked by those who now oppose universal rights – that the US and its European partners bludgeoned the rest into acceding to the various treaties, the Convention Against Torture, for example – vastly oversimplifies the power and influence of the West on this point; not least because the US itself has avoided ratifying many of the core human rights treaties.
For states that have accepted their treaty obligations, those commitments are of course binding on them. When they subsequently violate these commitments, are
they not primarily responsible? Shouldn’t other states hold the defaulting state to account? Why should the responsibility lie solely with the UN?
Turning to the separate lines of attack on universal rights, I will first touch on the current mischaracterization of universal rights by those dusting off an earlier generation of arguments based on cultural relativism. I will also probe the suggestion that human rights institutions are ineffective, or of questionable legitimacy, as recently implied by the United States. I will examine the charge that European advocacy of the universal agenda is insincere, driven more by the desire for strategic leverage than for upholding the liberal order. And finally, I will examine what else could be done to strengthen the universal human rights system.
An argument I often hear from African and Arab representatives – sometimes even from senior colleagues in the UN – again hinges on the belief that there is no such thing as universal rights, only Western culture and values dressed up in ornate language that everyone else is forced to swallow. As I’ve already said, I believe the influence of the West over other countries is exaggerated. However, what this does reveal is an anxiety over the direction of travel. Because lurking behind this attack is a deep-seated unease with the advancement of the rights of LGBTI people, and the sexual and reproductive rights of women and girls – two sets of rights my office and I vigorously promote and protect.
There are two problems with their attack. First, an obvious point, a glaring contradiction: if, for example, you are discriminated against in Europe because you hail from parts of Africa or the Arab world, it is hard to make your complaint heard if you yourself are discriminating against others on the basis of gender or sexual orientation. Second, this attack on universal rights, describing all of them as Western ideas, implies that individual rights categories somehow do not exist. It’s as if the universe of human rights is defined by just two issues – albeit highly significant ones. What about the prohibition on enforced disappearance, the right to food, and the elimination of racial discrimination? Are these also solely Western values? Would there be something specifically Western about yearning for a loved one who has been disappeared, tortured, then murdered by the state? Of course not!
The assault may not be well-founded in logical terms, but it still has traction with many conservatives. Religion and culture exert a powerful hold over many societies, and this has to be respected – a serious dialogue has to be pursued. Also, the historical connection between the West and the human rights movement is of course very strong. There is, for example, little argument over the extent to which the liberal political traditions of the West have contributed to the human rights movement.
It is equally true that two colossal wars of unprecedented scale and brutality, including the Holocaust, all began in the heart of Europe. Altogether, around one hundred million people died – if we add the victims of the 1918 influenza outbreak, for which the Great War bore a heavy responsibility. Without this gigantic loss, and the experiences of those who survived, there would not have been the codification of human rights law. Yes, at the level of states, human rights may have been European-inspired prior to 1914, and European-led in the years immediately following 1945. As it should have been: Europe, if I can be excused for saying this, owed it to the rest of the world.
Another refrain we often hear, but this time coming from the United States and the European countries, is that the Geneva-based UN Human Rights Council, with a membership of 47 states, has a design flaw in its composition – and, as a result, its legitimacy is called into question. The US argues that specific countries committing the most serious violations should not have a seat at the table. If we add “and are unresponsive to cooperating with my office and other UN human rights experts”, I agree. However, the Council — which administers the peer review – is far from dysfunctional, although the US is still threatening to withdraw from it. The same cannot be said of the UN Security Council.
I served on the Security Council in my previous position, and was at one point its president. I believe I can say, without fear of contradiction, that on some of the more pressing issues the Security Council is currently less effective than the Human Rights Council. So if human rights are on a “road to nowhere”, to borrow one critic’s phrase, perhaps we should disband the entire security architecture as well? We could bet our future on power politics, absolute sovereignty and inward-looking hyper-nationalism. What an appealing prospect that is!
There is a third argument I wish to examine, and it concerns Europe. The basic contention is this: while the human rights agenda may stem from Western, liberal thought, it is now fuelled by other, less lofty considerations. If ever there was proof of this – the critics say – it lies in the emphasis placed by Western human rights advocates on civil and political rights, to the exclusion and detriment of economic, social and cultural rights. This skewed agenda, they continue, is being forced on countries like China and India, whose peoples, especially the fast-growing professional classes, allegedly have no interest in pursuing civil and political rights; they want no more than to preserve their newly secured income. For those who have nothing, we are told, the priority is realizing their social and economic rights, not acquiring political power. The European tendency to foist civil and political rights on people in emerging markets therefore has less to do with universal values than it does with exercising leverage to advance economic interests.
It would be foolish of me to downplay the strategic manipulation by any state, or group of states, of the rights agenda. That said, and while all rights are of equal importance, there is practical sense in emphasising civil and political rights. Simply put, how can people possibly realise their economic and social rights if any public articulation of critical views will earn them a swift invitation to prison? And where has it ever been demonstrated that repressive, authoritarian governments are more likely – over the long, or very long, term – to increase people’s access to a fair share of economic resources? And what, precisely, is the societal or religious tradition that promotes and defends the oppression of people by their government?
It is obvious to human rights defenders that no individual or community can claim their right to access health-care, education, clean drinking water or social services when prohibited from exercising freedom of expression. Especially not when corruption is so rampant that the state exists in name only – as we see in so many parts of the world. At the Centre for International Development in Harvard, they have applied the term “Isomorphic Mimicry” to describe not a state, but what appears to be a state: a façade behind which lies… well, nothing – save the political domination of one group over many others. Without recourse to that most basic right – freedom of expression – people have no peaceful means of contesting the tyranny that seeps into the hollow structures of the state. Or they do so at great cost to themselves – and these are the bravest people I know.
Human rights are indeed being manipulated by states in the service of economic or strategic interests. The hypocrisy too, is often so stark, it’s eye-watering. We see this with every regular session of the UN Human Rights Council – and there are three a year. The countries that rightly condemn the appalling violations of human rights in Syria, are the same ones who have remained silent over the violations in Yemen. Yet the same can be said of most non-Western countries. There is no Western monopoly over duplicity or exploitation.
Our cynicism about their conduct notwithstanding, the fact countries will accuse each other of violations, fling verbal mud at each other across the floor of the Human Rights Council, is also acknowledgment – and this is a critical point -- that international human rights law does indeed fit into that space between a state and its people. It does exert pressure on state conduct. What the states dispute is the veracity of the claims that specific violations are taking place, and how each state stacks up against other regional players, particularly historic rivals.
As to whether rights are universal or whether the Universal Declaration of Human Rights is still relevant? In our minds, these are settled by the involvement on the part of all states with the international human rights institutions, centred in Geneva. All of them are peer-reviewed, all file reports, and almost all take the floor on a whole host of human rights related topics. Even if Russia, China and Egypt can be extremely critical, sometimes utterly dismissive, of human rights, they are still invested in the system. None of the 193 states has withdrawn.
That is not to say the threats to the principle of universality can be brushed away easily, because the broader international system itself remains vulnerable to the very same centrifugal pressures – extremism and go it alone nationalisms. So what is it we can do?
To begin with, we in the rights community must recognize we have created a perception problem and correct it. It is undeniable that in the realm of women’s rights, the rights of the child, or the rights of persons with disabilities and many other categories of rights, including access to variety of economic and social rights, humanity has achieved considerable success since 1948. Most people would attribute this to civil society activism within countries, mobilizing on each of these issues and championed by charismatic leaders, eventually winning over the political elite. This is true, but it is not the whole story. Without a universal point of reference -- a legal destination in the form of a treaty -- the journey for civil society, and also governments inclined toward it, would have been aimless. This crucial point is simply not appreciated enough in the popular mind. And here we arrive at the key weakness at the heart of the international human rights system.
Like all technical fields, our jargon – Special Procedures, precautionary measures, national preventive measures and the like, all un-intelligible to a non-legal mind -- has never been offered in terms more understandable to others. We love to speak in acronyms. “ Following the UPR the state ratified OP-CAT, set up an NPM and received a visit by the SPT.” It is not hard understand why most people around the world have no clue that these human rights treaties or institutions even exist, let alone what impact they have.
Two months ago, I was in Silicon Valley, to discuss with Facebook how the company determines content online, specifically with respect to freedom of expression and prohibition on incitement to hatred. Rather than use the international standard, the International Covenant on Civil and Political Rights, which regulates the freedom of expression, the company appears to be using as a guide the First Amendment of the US Constitution. But it’s not the applicable law in most countries. Facebook simply did not know which countries are legally bound by the Covenant; had never thought to ask.
This has to change. If we are to strengthen the defensive perimeter around universal rights, there is an urgent imperative to convey the case for universal rights more clearly on the basis of what it is we see at the thin end of the wedge – that is, where the norm and reality meet, or should meet.
After Silicon Valley I travelled to Libya. It is sometimes difficult to view such extremes and fathom the extent to which they belong to the same canvas of human experience. Within an eight-day span, I went from Tech Central where – and I find this simply staggering – digital engineers, using artificial intelligence, are reading the human mind; to visiting Libya, a country so broken and dangerous it is practically the only place in the world in which the UN cannot maintain a permanent presence. Put another way, I had to transition mentally from wading in a festival of genius to confronting a chaos of armed groups committing the most horrific human rights violations; where thousands of people, mainly migrants, are subjected to slavery, trafficking and sexual violence, and almost anyone may be the object of arbitrary violence.
Peering into the future, one minute, and then landing in some distant past the next. "Mind blown!" as my sixteen-year old son would say.
And yet, my Office and I are very relevant to both contexts. Universal human rights law needs to be applied in both of these situations. Both demand the anchoring force of principles, for conscience and practical guidance – a deeper consciousness of rights.
Just over a week ago, I was in Guatemala and El Salvador. In Guatemala I was astonished to learn that 46.5% of children under five years of age are chronically malnourished -- in a lower middle-income country, whose economy is growing! This calls into question the quality of leadership and the priorities of the state. There is simply no excuse for it. Were we to abandon universal human rights, and embrace absolute sovereignty, by what standard would we hold them to account?
The Guatemalan people were also still reeling from a tragic event. Forty-one young girls were killed last March, after a fire consumed a state-run children’s centre. It occurred at night and the girls had been locked in. I met the mother of one of the victims who had succumbed to the flames and she told me; in the hours following the fire, no political leader came to console her, there was no phone call, or even a letter at a later date. The only thing she received from the state was a coffin in which to bury her daughter. The indifference was callous, though these days not extraordinary.
In El Salvador, I experienced a deeply shocking example of human cruelty. In a detention centre outside the capital I met four young women, each sentenced to 30 year’s imprisonment for aggravated murder – because, it was claimed, they had wilfully terminated their pregnancies. All said they had suffered miscarriages or other obstetric emergencies; but they had been arrested and handcuffed, some while in emergency care, and sent to prison. The country has an absolute prohibition on abortions, no exceptions. And the society appears to be supportive of this and unyielding. In their suffering, these girls were noble in bearing. I do not mind telling you, we all broke down, my assistants, the interpreters – all of us, weeping. Not one girl out of the approximately 85 similar cases in the country, comes from a background of privilege. All the girls convicted are poor. As an ambassador said to me later, in Salvador it is a crime to be poor.
If ever there was a justification for universal rights, if ever there was a demonstration of Cassin’s ignorance and contempt of human rights, there you have it, in that prison in Ilopango, El Salvador. When the entire weight of a country, feral and menacing, falls like an axe on an illiterate young woman of humble station with no means to mount a proper defence, it brings home to me, and with terrific force, the unchallengeable need for universal rights.
Do not dare to tell me human rights are not universal. Do not dare! Could anyone look those women in the eye and say they do not deserve equal, universal rights.
It is easy to criticize universal rights from afar, but not when you are facing the victims of deep injustice – victims of deprivation, discrimination and violence. The Rohingya, the people of Syria, Yemen, South Sudan, the Central African Republic. Tragically, the list is very long – the case for me is made.
Human rights face a stress test today. And the pressure is upon us. We face a bare-knuckled, multi-directional brawl about the legitimacy and necessity of rights. With the departure of the World War II generation, and the dimming of memory, the growing unknowing as to why this rights architecture came to exist in the first place, means a decisive moment will soon be reached.
We will need to mobilize a much larger community to defend our collective rights. And we must do so quickly if we are to preserve the Universal Declaration. A Declaration conceived and drafted by the likes of Cassin, a Westerner it is true, but – and here is another significant wrinkle, a Declaration, and a set of laws, which would not have come about had it not been for the insistence of countries like Costa Rica, Jamaica, Ghana and the Philippines.
Without them, there would have been no universal rights agenda, a point neglected in much of the Western historiography on the subject. And this brings me to my last crucial point, summing up our principal shortcomings as a movement. Our inability over the decades past to communicate to a wider audience, comprehensibly, simply, humbly, the supreme importance of universal human rights, has left the door open to the enemies of rights. The claim from them, that human rights are simply a vehicle for Western values and interests has stifled progress and cut off the formation of a broader popular base for rights world-wide.
We are resolved to change this now.
On 10 December, we will kick off in Paris a year-long campaign of celebration of the Universal Declaration, leading up to its seventieth anniversary in 2018. It will be a campaign of defiance. We want it to be your campaign too.
One last anecdote. Until recently, we had a colleague working with us in Geneva, on loan from Stanford. He was both a chemical engineer and an iT specialist; a post-graduate; a polymath – and most important to me, and I suspect to him too, was the fact he was a human rights defender. A defender fighting for the rights of his fellow men and women in a country deeply repressive of its people’s agency and voice.
You are all gifted, I should know – I have two relatives here Martina and Oscar; all of you are most fortunate to be here at Lund. In the time that lies ahead, I hope you will be affix your signature firmly upon your chosen field or profession. I appeal to you now, that while doing so, you never lose sight of what you are entitled to under the law, and the need to defend them should circumstances require it. Think of the rights of others too. With all the success I hope you will enjoy, both personally and professionally – and however you wish to define them precisely – the protection of the rights of others could well become the most meaningful part of your life. We are equal, all of us, in our rights and our dignity. The schlub who one day became High Commissioner; the brilliant polymath; and the 19 year-old who has suffered a miscarriage and faces 30 years in prison. The same rights apply to all of us. And this is a fight worth fighting.
Note: this statement has been edited, to correct an error. We apologise for any inconvenience.