10 December is “International Human Rights Day”. This date was not chosen by chance; it is the date on which the Universal Declaration of Human Rights (“UDHR”) was adopted. This year, we celebrate the Declaration’s 70th anniversary. It was indeed in 1948, a few years after humanity revealed its darkest facets, that the UDHR was proclaimed “a common standard of achievement for all people and all nations”.
The preparation of the Declaration lasted approximatively two years. In 1946, the Economic and Social Council of the UN, one of the UN’s six principal organs, established the ‘Commission on Human Rights’. It was assigned the task of developing an international charter of human rights. Interestingly, the original idea was to create an international bill consisting of three parts: a declaration, a binding convention and measures for implementation. In fact, a report of the Commission’s Drafting Committee from July 1947 included a draft for both an International Declaration on Human Rights – containing broader and more general principles – and a draft for a Convention.
The bipolar political context of the time and the deep ideological differences between Member States prevented the adoption of one binding legal instrument. These discordances related mainly to the inclusion in the original convention of both ‘negative’ civil and political rights and ‘positive’ economic, social and cultural rights. Therefore, what was originally supposed to be one Convention, became, in the end, two separate binding legal documents. Presented for discussion at the assembly in 1954, the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights were finally adopted in 1966. With the Declaration, they are regarded as the fundamental international human rights texts.
The Declaration consists of 30 articles, preceded by a preamble. In this preamble, eight considerations invoke the inalienability and universality of human rights. The Declaration’s anniversary invites a reflection on exactly these promises: the inalienability and universality of human rights. Can we still afford human rights, given the inflation of ‘universal’ fundamental rights, leading to considerable costs for governments? Have our current legal orders remained faithful to the UDHR? Or are the many human rights violations simply a reluctance or failure to meet standards that should be respected?
For this reason, the Leuven Center for Public Law and the Leuven Center for Global Governance Studies in association with AHRI (the Association of Institutes for Human Rights), are organizing an international conference to reflect on the affordability of human rights. More specifically, we will consider the following three themes: 1) the economic and social costs of human rights, 2) the (non) universality of those rights and 3) their proliferation. Each of these topics raises important legal questions.
Although the UDHR was adopted as a universal declaration, human rights law has come to formulate different demands in different regions and different countries. While something may be protected as a human right in the European legal sphere, it may not be considered as such in the (Inter-)American, African, Arab or Asian legal spheres, and vice versa. For instance, the African Charter on Human and Peoples’ Rights puts more focus on ‘collective rights’, such as the right to a satisfactory environment; a right that is not explicitly and only limitedly protected by the ECHR. Moreover, something may be protected as a human right in one European country, but not in another. On the vertical level, demands may differ as well: a UN treaty body may interpret a human right in a way that conflicts with an interpretation by, say, the European Court of Human Rights, and both may adopt interpretations that conflict with those at the national level. Has human rights law survived the cultural relativist critique, or does the legacy of the UDHR still require an answer to the different meaning of human rights across the world?
Although the declaration as such has no legal value, it has become, over the last 70 years, the world’s reference document on human rights. Translated into more than 500 languages (which makes it the most translated document in the world), it has inspired the adoption of many international and national instruments. At the level of the UN alone, there currently are nine core international human rights conventions, each with their own monitoring body. The UN human rights system suffers from a reporting fatigue and backlog, while regional mechanisms such as the European Court of Human Rights do not fare much better, despite their recent efforts. Still, issues are ever more cast in human rights language, and the number of human rights keeps increasing. Is the inflation of human rights a positive trend towards a common and universal human rights language, or is it undermining the core of the UDHR? Should the domain of human rights law be delimited, and make way for alternative mechanisms, approaches or languages? Are there any alternatives?
Social and economic costs
The implementation of human rights law entails considerable economic and social costs. This is reflected in debates such as those concerning the affordability of economic, social and cultural rights, the attempt to impose human rights obligations also on non-state actors, notably including multinational enterprises, and the extraterritorial scope of application of human rights law. The human rights community only limitedly takes these costs into consideration. Could it enhance the implementation, credibility and legitimacy of human rights law if it would take into account relevant economic and social costs? Can it do so, considering that human rights are inherent to every human being? If so, how?
Birthdays call for celebration, but for reflection and re-evaluation as well. Human rights were indeed created as a “common standard of achievement for all people and all nations”. Yet, we must dare to ask the question whether this birthday song of the UDHR still rings true.
Louise Reyntjens is a PhD-researcher at the Leuven Centre for Public Law. She specializes in the use of migration law in the context of terrorism in the European Union.
Marie Bourguignon is a PhD-researcher at the Leuven Centre for Public Law. She specializes in the role played by the authorities in translation policies in Belgium during the Long Nineteenth Century.
Both authors are researchers at the Human Rights Institute (Leuven Center for Public Law) of the KU Leuven. They organize the “International Conference: Can We Still Afford Human Rights?” together with Prof. Dr. Koen Lemmens (Human Rights Law), Prof. Dr. Jan Wouters (International Public Law) and Thomas van Poecke & Evelien Wauters (researchers at the Center for Global governance studies of the KU Leuven).
Registration, full program and practical information about the “International Conference: Can We Still Afford Human Rights?” can be found here.
Marie BOURGUIGNON & Louise REYNTJENS, "70 Years Later, Can We Still Afford Human Rights?", Leuven Blog for Public Law, 10 December 2018, https://www.leuvenpubliclaw.com/70-years-later-can-we-still-afford-human-rights (geraadpleegd op 10 May 2021)
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