Date01 December 2009
Citation(2009) 21 SAcLJ 293
AuthorTHIO Li-ann BA (Hons) (Oxford), LLM (Harvard), PhD (Cambridge); Barrister (Gray’s Inn, UK); Professor, Faculty of Law, National University of Singapore; Nominated Member of Parliament (11th Session).
Published date01 December 2009

Universality, Indivisibility and the Three Generations of Human Rights

This second in the series of three lectures was delivered on 29 June 2008 at the invitation of Law Society President Michael Hwang SC under the auspices of the Law Society Public and International Law Committee. This article is a modified version of the public lecture.

I. Introduction: The UDHR as a provisional, providential and political document

1 The Universal Declaration of Human Rights (“UDHR”)1 is the most translated document in the world today; it has apparently been translated into 360 languages of the 6,912 living languages today.2 Human rights are a kind of international language which every country must translate into its local dialect, which is one of the purposes of these lectures.

2 All persons are the beneficiaries of international human rights law. But this was not always the case, as international law was primarily concerned with inter-state relations. I would like to start with a story about a man, Chief Deskahesh, from Canada. He was a member of the Iroquois tribe of Six Nations, founded by Hiwatha. The Six Nations League had a territorial dispute with Canada and desired home rule, arguing they had enjoyed self-government for many centuries. They rejected an offer to resolve the issue through adjudication and sought international intervention. Chief Deskahesh crossed the Atlantic by boat to reach Geneva where he presented a petition entitled The Red Man’s appeal for justice, to the League of Nations.3 As an indigenous

representative of an indigenous group lacking international legal personality, it was difficult for him in 1923 to be heard. Chief Deskahesh tried to enlist the help of the Netherlands as the Six Nations League had good Dutch ties but was blocked by Canadian and British diplomatic intervention as Indians were considered His Majesty’s subjects, lacking independent nation status. The Six Nations were under the Canadian Indian Act regime and feared being absorbed by Canada. The Indian Act was seen as an affront to their culture. For example, the tribal system was organised along matriarchal lines where the oldest women wielded political power. This was considered primitive, and the Indian Act sought to replace this with an elective system, to select an Indian Band Council, to prepare native peoples for citizenship. This terminology of advanced nations and backward peoples was extant in the 1920s, with the former owing a duty to uplift the latter to a certain standard of civilisation.4 This was in reality a de facto form of internal colonialisation.

3 There is an article in the 13 June 2008 edition of The Straits Times entitled: “Canada says sorry to aborigines at last.” This shows how international law does change, which is why Asians have to speak up to try and influence the kind of world we hope to live in. In the past, there was a notion of civilisational superiority, which was a form of racism. Not only did Canadian Indians feel patronised, this was institutionalised as a matter of international law. After World War One, the losers, particularly the Anglo-Hungarian Empire, basically lost all their colonies which were placed as mandates under the care of the Allied powers. The underlying idea was that there were uncivilised peoples who had to be tutored to stand up to the rigours of the modern world. This was the white man’s burden. Under Art 22 of the League of Nations Covenant, advanced nations bore the sacred trust of civilisation of raising backward peoples to a certain standard of living. This reflects the Euro-centric orientation of international law.5

4 Today, a cardinal principle of international law enshrined in Art 2(1) of the United Nations (“UN”) Charter is the sovereign equality of States. In the past, international law institutionalised sovereign inequality through the mandates system.6 The League mandate system divided colonies into A, B and C mandates. The most advanced

mandated territories were the A mandates which merited provisional recognition; the mandatory power only had to offer administrative assistance. C mandates were so backward that mandatory powers were to treat it as part of their own territory. The first country to emerge out of the mandate system was Iraq in 19327 as it was supposed to have become sufficiently civilised, which is ironical in hindsight.

5 In the 1960s, the UN General Assembly adopted the Declaration on the granting of independence to colonial countries8 which is very important to the Afro-Asian nations or third world. Paragraph 2 reads: “All peoples have the right to self determination.” In essence, the message was that Afro-Asian nations did not want to wait for independence nor have their civilisations graded. The reference to “all peoples” in para 2 was deliberate as the idea was that the lack of development could not excuse delaying independence. The decolonisation movement was reinforced by the human rights movement.

6 No longer can the shield of sovereignty be raised to ward off the sword of external scrutiny. We may recall that many Western Powers refused to have human rights clauses in general treaties as they would be bound by it. For example, they did not want the UN Charter to contain a prohibition against racial discrimination because countries like Australia and New Zealand feared this would open the door to scrutinising how aboriginal peoples or Maoris were treated.9 As I underscored in my last lecture, in the 1920s, it was Japan who pushed for a racial discrimination clause and in the 1940s, it was China, in the League covenant and UN Charter respectively. It is not as though Asian States have not been interested in combating racism.

7 So we return to Chief Deskahesh, who in the 1920s lacked access to a formal institution to press his peoples’ claims. Today, there is a Permanent Forum on Indigenous Issues10 and a 2007 UN Declaration on the Rights of Indigenous Peoples.11 The struggle for certain people or groups to have their human rights recognised has borne some fruit. But,

to be legalistic, the Declaration is a form of non-binding “soft law”.12 It is important to ascertain whether a human rights instrument that is being invoked is hard (treaty or customary international law) or soft law. When States are reticent towards a certain right, they may adopt a declaration of aspirational standards, but will not subject themselves to treaty obligations.

8 The UDHR was universal as it covered the entire globe, including colonial territories, as Art 2 reflects, which the Latin American countries contended for.13 Its strong egalitarian commitment was one reason why apartheid-era South Africa refused to adopt the UDHR. It is also not a sexist document as it replaced references to “all men” to the more inclusive “all people”, largely owing to the interventions of the Indian delegate, Mrs Mehta, with Soviet support.14

9 The UDHR is revolutionary in addressing non-state actors, extending to every individual and organ of society. This has implications for private law. We tend to think of human rights as belonging to the public law realm of the State and individual. Are states obliged to ensure private employers respect human rights? The “horizontal” application of human rights between private parties is a growing area.15

10 The world has changed remarkably from a world of States to a world of States and non-state actors like transnational corporations,16 non-governmental organisations (“NGOs”)17 and indigenous groups, with their own special interests. While declaring broad principles is easy, the difficulty lies in the detail, in reconciling, for example, indigenous cultural group norms, which may be sexist, with gender egalitarianism. How do group rights affect the integrity of general human rights?

11 The UDHR is a provisional, providential and politico-moral document. It is provisional because none of the drafters thought that they had “arrived”; they believed adopting the UDHR was the first step in a long journey. Eleanor Roosevelt hoped this imperfect document “might become the Magna Carta of all men everywhere”.18 The UDHR was a milestone in forming the cornerstone of the International Bill of Rights, together with the International Covenant on Civil and Political Rights (“ICCPR”) and the International Covenant on Social, Economic and Cultural Rights (“ICESCR”).19 While the ICCPR has an optional protocol which allows individuals to send “communications” to the monitoring Human Rights Committee, the ICESCR had neither a monitoring committee nor an optional protocol from the outset.20 From this, we see the tendency to treat civil and political rights differently from social-economic rights, despite the overarching principle of indivisibility.

12 The UDHR was a providential document. At the first lecture, I spoke of the 81 torturous meetings over two years before a minimal consensus was attained and the UDHR adopted by the General Assembly on 10 December 1948. It was providential because it was not hijacked or aborted by the onset of the Cold War. Between September to December 1948, while the General Assembly was debating UDHR drafts, the Berlin Blockade took place, and Czechoslovakia faced the threat of a Communist coup. If things had escalated, I doubt the human rights project would have even gotten off the ground. Charles Malik, the Lebanese delegate, said that the UDHR’s adoption was “really something of a miracle” and many NGOs described the UDHR as achieving “the very near impossible”.21 Human rights entered into a period in the doldrums as it took almost 20 years from that point in time before the ICCPR and ICESCR were adopted in 1966, and it took ten more years for both treaties to come into effect.

13 On the day the UDHR was adopted, Mrs Eleanor Roosevelt wrote in an article that: “… the Arabs and the Soviets may balk — the Arabs for religious reasons and the Soviets for political ones.”22 Saudi


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