A cornerstone of rights

“The adoption of the Universal Declaration of Human Rights was the most significant moment in the post-World War II world of individual rights and personal dignity.” Thus did Lord Goldsmith QC, the former Attorney General, sum up the importance of the Declaration in his lecture, hosted by the Society, given last month on the 60th anniversary of its adoption.

Lord Goldsmith is much linked in the public mind with his advice to Tony Blair’s Government on the legality of the war in Iraq, which fell within his six-year tenure of office. However his interest in human rights is better measured by his three years as co-chairman of the IBA’s Human Rights Institute, his term as the Prime Minister’s personal representative to the Convention for the Charter of Fundamental Rights of the European Union, and his efforts to secure the release of the British subjects detained without trial in Guantanamo Bay. He now conducts international human rights litigation from the London office of US firm Debevoise & Plimpton.

Indeed his address contained some pointed criticisms of those whose support for the spirit of the Universal Declaration has been found wanting.

Having traced the history of declarations of rights, from Magna Carta through the British and US Bills of Rights and the Scottish Claim of Right, among other documents, and their failure to prevent abuses such as culminated in the Nazi regime (perhaps itself assisted by the legal theory of the sovereignty of nations), Lord Goldsmith described the emerging recognition during World War II of those human freedoms, the restoration of which justified military intervention against dictatorship: witness President Roosevelt’s 1941 “four freedoms” speech to Congress. And the President’s wife Eleanor was one of four people responsible for the draft eventually adopted as the Universal Declaration – together, crucially, with “the Nobel Peace Prize Laureate and legal genius of the free French, René Cassin. To him is attributed the brilliance of having transformed what might have been a mere laundry list of rights into a set of interlocking principles.”

So, Lord Goldsmith continued, “the Declaration eventually took on what Cassin described as the portico of a Greek temple with four foundation blocks: the general principles of dignity, liberty, equality and fraternity, and four columns of rights: rights of individuals as such; rights of the individual in relation to others; spiritual, public and political liberties; and economic, social and cultural rights.

“It is a great tribute to the draftsman and to the political abilities of the proponents of the Declaration that in the end, and despite great ideological divides between the represented countries, no country voted against the Declaration and that so few abstained”: the voting showed 48 countries in favour with eight abstentions.

Three essential points, he suggested, emerged from this history. “First, the genesis of the Declaration both as a safeguard against a repetition of the horrors of the Holocaust and as a means to world peace through the avoidance of conflict deriving from abuse of individuals is critical.” Those who today view human rights as simply a charter for criminals and rogues misunderstand the huge significance of a declaration to protect all of us from abuses of power and restraints on our freedoms.

Secondly, the role of the leading nations of the post-war world is of great significance. “In particular, the part played by the United States in promoting this Declaration can be seen as starkly different from some messages sent by the Bush Administration in the past eight years…. As the former Adviser to the State Department, William Taft has complained, where once the USA had been in the forefront of promoting international law, it had more recently reached a stage where international law was seen as a problem to get round and not part of the solution.”

Lord Goldsmith’s third aspect, “perhaps the most significant”, is that the word “universal” does not appear in the title for mere emphasis, like a Victorian advertisement for a handy gadget. “The word appears because at heart this was an exercise in identifying rights which would be universal and applicable to all.”

As a legal instrument the Universal Declaration itself is of limited effect, having no binding force in international law. But at least 26 nations – Spain, for instance – have adopted its principles in their domestic constitutions; and on the international plane, “the two great UN covenants relating to human rights – the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights – provide the teeth and enforcement mechanisms for the principles declared by the Universal Declaration”.

It has also, he noted, been the springboard for other treaties such as the European Convention on Human Rights, the American Convention on Human Rights and the African Charter on Human and People’s Rights.

Nevertheless, it cannot be disputed that much work remains to be done. Lord Goldsmith’s first disappointment was that the United States, “one of the great proponents” of the original Declaration, has recently shown a different approach to human rights. Having been a bastion of liberty and justice against the Iron Curtain, “It is therefore particularly tragic that it should have stumbled in the past eight years on the principles for which Mrs Roosevelt was fighting.” Focusing in particular on the detainees in Guantanamo Bay, Lord Goldsmith expressed the hope that President-Elect Obama would “take the same principled approach that we did that either fair trials are now possible for those still detained or, if not, that they are released”.

Turning to what he described as “perhaps the great task for the next 60 years”, Lord Goldsmith then reminded his audience that the Universal Declaration goes beyond the civil and political rights with which we are familiar in the European Convention. The so-called “new” human rights in articles 23 and following include the right to work, to just and favourable conditions of work and a right to equal pay; a right to rest and leisure; an adequate standard of living; a right to education and more. In many parts of the world, such rights are not fulfilled.

“A major difference between the ‘new’ human rights and the old human rights is that they require action by, not prohibition of, government. So they are more difficult to achieve. They require resources to be allocated.

“But juridically they are different too. Who is to decide what is an ‘adequate standard of living’? A court? How does it judge? And if it does, how does it enforce its order? Where does the money come from?”

The questions were debated at length, Lord Goldsmith continued, in the negotiations for the European Charter of Fundamental Rights. Like others, he had been concerned that to leave such rights to be ascertained and enforced by a court created major problems. “Indeed as a democrat I believe that the choice between the allocation of scarce resources is for government, and not unelected judges, to do. In the end we reconciled the position by including these new rights, but only as aspirational and not as judicially enforceable unless and until further legislation brought them into effect.”

A third issue is that there is a long way to go before we achieve the “Universal” aspiration of the Declaration. Thus, for example, we have seen genocidal attacks in Rwanda, Kosovo and Darfur, the continuing widespread oppression of women, and racial discrimination.

“But there is another more fundamental denial of the universality of human rights, in the idea that there are some places where these rights are not appropriate or do not fit. The sharpest example is the argument that Asian values are different; that economic wellbeing and prosperity have to come first and to achieve them some denial of individual liberty is justified.

“This, I believe, is false thinking. Human rights are not just for some humans; they are for all. Too often in the past the good of the many has been an excuse for the oppression of the few. Licences to oppress of this sort are a dangerous thin end of the wedge.

“But I would also challenge the underlining premise: that there is a choice, individual liberties or economic prosperity. It is not either or. There is empirical evidence to show it. Not only in countries like the US and the Scandinavian democracies where strong economic conditions and strong rights have co-existed, but also in the less developed world. As the Nobel Laureate Amartya Sen has pointed out, there has been no recent example of a famine in a country with democracy and a free press.”

Finally, Lord Goldsmith addressed the critics of the operation of human rights in practice. Recognising the potential inconvenience to prosecutors and government ministers, and even heartbreak to victims of crime, he continued: “But we should remind ourselves of the value of these principles, of where we have come from and what we are protecting ourselves against. Too often politicians and the media are to ready to criticise without making these things clear. When I was in government we had with colleagues what I think would be termed in diplomatic circles ‘frank exchanges of view’ about that, and this is perhaps why no amendment to the Human Rights Act was ever brought forward.”

Acknowledging that certain rights require a balance to be struck between the interests of the individual and those of the state, he added: “Judges may sometimes get things wrong. Respect for the rule of law does not require us to deny that possibility. But this is all a price worth paying to promote human rights internationally and to avoid the death camps, the disappeared persons, the press censorship, the religious persecution, the oppression of minorities and vulnerable. That is worth remembering next time we see a tabloid headline asking: ‘Whose human rights are our judges protecting?’”

The Universal Declaration, Lord Goldsmith concluded, is symbolic of the great changes that have taken place to bring about a world ruled by law, where dictators and tyrants face public accountability. “Amongst other non-legally binding texts, perhaps only Das Kapital, Mao’s Little Red Book and the Bible have been more influential.” Which, he suggested, is not bad going.