THE HISTORICAL ORIGINS AND CONTEMPORARY EVOLUTION OF INTERNATIONAL HUMAN RIGHTS LAW Retrospect and Prospect
| Published date | 01 December 2009 |
| Author | THIO Li-ann BA (Hons) (Oxford), LLM (Harvard), PhD (Cambridge); Barrister (Gray’s Inn); Professor, Faculty of Law, National University of Singapore; Nominated Member of Parliament (11th Session). |
| Date | 01 December 2009 |
| Citation | (2009) 21 SAcLJ 261 |
This article is adapted from the first in a series of three public lectures, which was delivered at the launch of the Law Society Public and International Law Committee at the Supreme Court Auditorium, on 29 May 2008, to commemorate the 60th anniversary of the UN General Assembly Universal Declaration of Human Rights.
1 I am going to lay at the feet of the Attorney-General Professor Walter Woon the responsibility for everything I am going to say; he probably cannot recall, but when he was Vice Dean at my faculty, in another century, he gave me my first break in international law when he invited me to understudy Professor Sornarajah, one of our eminent international law professors. That launched my academic career in international law. I gravitated very naturally to human rights because it bears a close correlation with public law, my other major field of interest.
2 My focus for today’s lecture is on the history of human rights law, and the state of this branch of law today; I will discuss some of the issues and controversies extant in the discourse. I will also locate the discussion within the Singapore context, as human rights are the common heritage of mankind and not the possession of any one country.
3 Human rights law marks a shift from a state-centric to a people-centric conception of international relations. Classic international law was primarily concerned with inter-relationship between States.
Sovereign States organised after the classic Westphalian model enjoyed control over persons and activities within their territorial borders1 or “domestic jurisdiction”.2 Individuals as natural persons were not considered international legal subjects capable of holding rights and duties.3 How a State treated its individuals within its four borders fell within its “domestic jurisdiction”, beyond the purview of international regulation.
4 International human rights law is subversive in challenging this Westphalian structure of international relations.4 Clearly, the centrality of States as sole or principal international legal subjects “no longer prevails in its unadulterated form”.5 It is challenged by the view that the individual is “the ultimate subject of international law” with fundamental freedoms and rights, which rejects the “personification of the State as being distinct from the individuals who compose it”.6 As a metaphysical corporate entity, the State is not “of a higher order than its component parts”.7
5 Ignatieff observed that human rights law wrought a threefold “revolution”.8 In terms of the juridical revolution, there is now a substantial corpus of human rights norms and standards benefitting non-state actors, in a relatively youthful area of international law emerging out of the ashes of the Second World War. The roots of the international regulatory system for human rights promotion and protection may be traced to the 1648 Treaty of Westphalia and the League of Nations regime for the protection of minorities operating during the interwar era.9 Human rights law is the humanitarian heart of
international law; it is not concerned with whether ships should pass on the left or right or protecting foreign investments; rather, it relates to how the law should regard the human person: do States serve individuals or individuals serve States? The cornerstone of this edifice is the Universal Declaration of Human Rights (“UDHR”), “the mother document of the human rights revolution”10 which the United Nations (“UN”) General Assembly adopted on 10 December 1948 by 48 votes, with eight abstentions. This holds out various norms as “a common standard of achievement for all peoples and all nations”11 and is formally non-binding, though many of its provisions have attained the status of universally binding customary international law.12 This document sparked off the revolt against colonial rule and the civil rights revolution in relation to the right of self-determination and prohibition against racial discrimination, respectively.
6 Subsequently, UDHR norms were elaborated in the form of two binding international treaties: the International Covenant on Civil and Political Rights (“ICCPR”)13 and the International Covenant of Economic, Social and Cultural Rights (“ICESCR”),14 both of which were adopted in 1966 and entered into force in 1976. Originally, the plan was to have a single Covenant but this became captive to Cold War politics.15 Western liberal democracies generally championed civil-political rights while the Soviet bloc supported socio-economic rights. Collectively, these three documents constituted the “International Bill of Rights”. Singapore is not party to either Covenant.
7 The past 60 years since the adoption of the UDHR has witnessed the burgeoning expansion of standard-setting in the form of treaties;16 of the six major human rights treaties, Singapore is party only
to two of them — the Convention for the Elimination of All Forms of Discrimination against Women (“CEDAW”)17 and the Convention on the Rights of the Child (“CRC”)18 which Singapore acceded to in 1995. Professor Tommy Koh has called upon the Government to sign the Convention for the Elimination of Racial Discrimination19 (“CERD”), which is a good idea.20 However, the Government’s view is that having peace and things working on the ground is more important than signing treaties; some have questioned whether signing human rights treaties makes a difference or serves as a poor cosmetic substitute for genuine human rights gains.21
8 Many topic-specific “soft law” instruments have also been adopted, such as the 1981 Declaration on Religious Intolerance,22 1992 Declaration on National, Ethnic, Religious and Linguistic Minorities,23 2007 Declaration on the Rights of Indigenous Peoples24 as well as other soft law codes such as the non-binding Norms on the Responsibilities of Transnational Corporations and Other Business Enterprises with Regard to Human Rights.25
9 Human rights may be categorised in terms of three generations of rights,26 corresponding with the rallying cries of the French Revolution: liberte (civil and political rights),27egalite (socio-economic rights)28 and fraternite (collective solidarity rights).29 These are not chronological and co-exist. The 1993 Vienna Declaration states that all human rights are “universal, indivisible and interdependent and interrelated”.30 The complaint of many States is that critics only focus on one set of rights; critics of Singapore tend to focus almost exclusively on civil-political rights; this is lop-sided; no one ever criticises Singapore
for violating the right to housing. To be holistic, the range of rights needs to be appreciated in evaluating the human rights practices of the State.
10 Most of the fundamental liberties in Pt IV of the Singapore Constitution fall within the “first” generation of civil and political rights (Arts 9—15 relate to right to life and liberty, prohibition against forced labour, due process rights, equality, freedom of movement, speech, religion). These are largely negative liberties and designed to limit the political power of the State although the Constitution phrases broad limits to these rights. For example, Art 14 authorises Parliament where considered “necessary or expedient” to restrict free speech rights to serve stipulated public goods like public order and morality. Part IV does not contain any “second-generation” socio-economic rights which embody the notion that social equality should be promoted, relating to the right to work, to health, to a minimum standard of living. As Singapore has signed some 20 International Labour Organisation (“ILO”) conventions,31 a question on these issues may arise in Parliament or some other forum, but not the courts. Part IV does not refer to “third generation” solidarity rights, which are largely a product of a third world perspective on human rights, often a confusing idea in relation to the nebulous rights to development, to peace, to a healthy environment.
11 As rights-holders, we would all like a healthy environment, but who are we to enforce this against? If the Government tortures you, then sue the Attorney-General. But if smoke-haze floats into Singapore, who is to be sued? This implicates the idea of imperfect obligations, the idea that a duty-bearer can owe a duty to an indeterminate class of beneficiaries. What is interesting is that the Singapore Government, like many other Asian States, considers the third generation right to development an inalienable right.32 This transcends mere economic growth; the 1986 Declaration on the Right to Development relates equitable distribution and a participatory process to the development process and results sought to be attained. Critics consider this an unquantifiable state right.33
12 Human Rights Law is profusely affecting other areas of international law such as development, environment, trade and security. Issues like food security and disaster relief are recognised to have human rights dimensions. In relation to Cyclone Nargis in Myanmar, UN human rights34 experts emphasised how international solidarity should be directed at protecting the human rights of the most vulnerable people affected by natural disasters, as they should enjoy the same rights as any other persons in relation to access to food, water, shelter, housing, medical services and sanitation.
13“Human rights” is not an umbrella catch-all term for every good thing in the world. “Human rights” are debased, trivialised and unnecessarily politicised when every preference or desire you like is so termed.35 Human rights are not ends in themselves, but one particular means or method of securing the end of human welfare, a goal all Governments share. Human rights are based on a normative or philosophical commitment to human dignity, the non-self evident belief that every human...
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