MENNESKERETTIGHETER: Fokuser på sivile og politiske rettigheter



Human rights – How are they best promoted?
Holdt av Jacob Mchangama, sjefsjurist i CEPOS, på Civitas frokostmøte om menneskerettigheter 29. april. Dette og resten av innleggene, samt debatten etterpå, kan ses her. Teksten her er Mchangamas uredigerte manus.

There can be no doubt in my mind that the fight for human rights is essential in a world where more than a billion Chinese are denied freedom of expression, Iranian protesters are jailed, tortured and shot and many women in the Middle East suffer from gender apartheid to name but a few of the many examples of massive violations of fundamental freedoms.

As I see it the true purpose of human rights is to act as a bulwark against tyranny and to secure freedom. To ensure that people like Anwar Ibrahim can fight for democracy and change without being arrested and harassed by the Malaysian government, that Chinese citizens may speak freely without the risk of prison and Lubna Hussein may walk the streets of Sudan in trousers without facing flogging. This purpose unites people across cultures, religions and political divides and when human rights are understood and advocated as rights that secure freedom they form a coherent and readably understandable set of norms which the actions of governments all over the world can be measured against. Whether someone is being electrocuted in Sudan or Sweden we are not in doubt that that person is being tortured.

The language of human rights has become ubiquitous in international politics.  But because the appeal to human rights has been so successful in putting important issues on the international agenda and governments on the defensive, human rights are invoked in an ever increasing number of areas, from social justice to climate change, that have little to do with human rights’ purpose of securing freedom. However, human rights should not and cannot be used to solve all the worlds’ pressing problems or we risk the concept of human rights becoming meaningless and hijacked by special interests and political agendas.

In my opinion the increasing focus on economic, social and cultural rights such as the right to an adequate standard of living social security and housing contributes to the dilution of human rights and diverts the focus away from opposing tyranny and the fight for freedom. 

It may sound anachronistic that I should be so critical of economic and social rights. After all these rights are included in the Universal Declaration of Human Rights. However, when the Universal Declaration was adopted in 1948 prominent founders such as Eleanor Roosevelt, Rene Cassin, and Charles Malik explicitly rejected the idea of indivisibility and understood fully that only the civil and political rights are real rights capable of being defined and enforced and that economic and social rights must be treated as political aspirations rather than legal entitlements.

Philosophically the two sets of rights are very different. Civil and political rights such as freedom of association and speech ensure political pluralism. Without such rights democracy would not be legitimate. Even more importantly; civil and political rights limit what actions even a legitimate government may subject its citizens to. No matter how large a majority is behind a government it can not use torture, or arbitrarily detain political opponents. However, civil and political rights do not prescribe what governments should do. Within the limits prescribed by these rights the people may form the kind of society they themselves desire according to the democratic process.  That is not the case with social rights. Social rights do not directly legitimize governments. In the socialist countries during the Cold War most received education, had access to some form of housing, but that did not make the governments of the Soviet Union or Eastern Germany legitimate or ensure political pluralism. Moreover and crucially – social rights do not protect individual freedom from government action. In fact they require governments to undertake action and move society in a particular direction, where the freedom of the individual becomes threatened. We see this in countries like Cuba and Venezuela were the constitutions specifically call on the state to secure social rights for the citizens and where individual freedom is trampled. Therefore if social rights are to be protected and respected as individual rights that trump competing interests they are incompatible with individual freedom.

I do not suggest that we should be indifferent to poverty and hunger. But while extreme poverty is a global problem of the highest order, it cannot be solved within the framework of human rights. In this regard it is important to dismiss the often heard claim that free speech is worthless without food, shelter and clothing. Hunger and poverty cannot be explained by an absence of, nor secured by the introduction of social rights.  Their realization depends on a range of other factors that cannot be reduced to simplistic rights language. Does anyone think that the right to food would help a country ravaged by famine? Moreover few if any Western countries with market economies have a right to food or clothing enshrined in their constitutions. Yet hunger and lack of clothing is a problem faced by few people in these countries.

Human rights activists should resist the temptation of turning complex matters of economic and social policy into questions of human rights and leave that to those who have expertise in these matters. That would free up energy to focus on what human rights activists do best: naming and shaming those governments which disregard the freedom of their citizens by arresting, torturing and brutalizing them.   

Human rights are also being undermined by the very organization whose aim it is to ensure the respect and promotion of human rights, namely the UN. In 2006 the Human Rights Council replaced the Human Rights Commission which according to Kofi Annan had “cast a shadow on the UN system as a whole” due to its lack of efficiency and membership which included China, Saudi-Arabia with Libya presiding in 2003.

However, the Human Rights Council has been a possibly even bigger failure. It still includes Saudi-Arabia, China and Russia as members. Also the Human Rights Council has decided to end the mandate of independent experts examining countries like Iran, Belarus and Cuba. The human rights council has also passed numerous resolutions on defamation of religion which would seriously curtail freedom of expression by prohibiting criticism of religions rather than protecting individuals. Perhaps the Human Rights Council’s omissions are the worst. No critical resolutions have been adopted on Russia or China and the resolutions on Sudan have failed to hold the Bashir regime accountable for its massive violations of human rights.

But the fact that the Human Rights Council has been as big a failure as its predecessor should not come as a surprise to anyone. The UN will be doomed to fail as the world’s human rights watchdog because the credibility deficit it suffers from is systemic and will remain so as long as authoritarian states like Saudi-Arabia, Russia, China get to have a decisive say on what the Human Rights Council should concern itself with. The leaders of these regimes obviously have no incentive to promote and protect human rights and freedoms because the only way they can stay in power is by systematically violating basic human rights. It would political suicide for the Chinese communists to allow unrestricted freedom of expression and free elections or to crack down on torture so efficient in intimidating dissent.

To authoritarian states the real value of the Human Rights Council is that they get to cover over each others’ crimes, divert attention from themselves and dilute the concept of human rights. It would be unthinkable that the Human Rights Council should pass a resolution condemning Malaysia for its treatment of Anwar Ibrahim. Because then Russia would also have to answer for its threats and intimidation of Chechen lawyer Lydia Yusupova and China for its imprisonment of Uighur leader Rebiya Kadeer.

Unfortunately Western states refuse to acknowledge this reality and continue to treat the Human Rights Council as an important international organ despite its disgraceful record. Time and again the EU member states in particular have been bullied into proposing weak resolutions with no teeth and even more often the EU countries simply stay silent even in the face of massive violations.

By playing along the EU is legitimizing a body which has no legitimacy and thus lending moral authority to the agenda of the non-democratic states that run the Human Rights Council.

Rather than cozying up with authoritarian states at the UN we should support those people who are oppressed in these countries and who don’t have access to international organizations and media. I think that in the long run an event like the Oslo Freedom Forum where remarkable human rights activist such as Anwar Ibrahim, Rebiya Kadeer, Armando Valladeres are given a voice and can speak the truth as they see it is much more valuable than the Human Rights Council. Only when there is a critical majority of democratic states at the UN can the UN hope to play a constructive role as a credible and efficient guardian of international human rights.

If we are to hope for change in the darkest corners in the world we must empower those who risk their lives fighting for freedom and democracy, not the governments who pay lip service to the human rights they routinely violate.

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