Documente Academic
Documente Profesional
Documente Cultură
Stephen Vasciannie
The post-World War II era has witnessed striking growth in support for
human rights. This is not at all surprising for, given the carnage of the Second
World War, and bearing especially in mind the atrocities of the Holocaust,
States have been compelled, as a matter of humanity, to show deference to
basic rights of persons.
United Nations
Accordingly, the United Nations Charter indicates in Article 1(4) that one
of the purposes of the organization is: (t)o achieve international cooperation
in promoting and encouraging respect for human rights and fundamental
freedoms for all without distinction as to race, sex, language or religion.
Starting with this foundation in the U.N. Charter, the United Nations
General Assembly passed the Universal Declaration of Human Rights (1948), as
a means of setting out the core commitments of all States in the area of human
rights. The years immediately following the Universal Declaration of Human
Rights also witnessed considerable debate across ideological lines as to the
scope and definition of the basic human rights to be protected by International
Law.
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At the end of this debate, the United Nations presented two basic treaty
instruments for consideration by States, namely, the International Covenant on
Civil and Political Rights (the ICCPR), and the International Covenant on
Economic, Social and Cultural Rights (the ICESCR).
These two documents the ICCPR and the ICESCR are core treaties
within the United Nations system and, when read along with the Universal
Declaration
of
Human
Rights,
constitute
the
foundation
for
modern
Exemplars
In addition to affirming core rights at the international level, these
instruments serve as exemplars for States that wish to incorporate human
rights into their national laws. To take the case of Jamaica, the assurances set
out in the Universal Declaration of Human Rights were broadly incorporated
into Chapter III of our Constitution at the time of independence. These rights,
now amended and enhanced by additional rights, now constitute the Charter of
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Rights and Freedoms, our guiding rules on the rights of persons in the
country.
The post-war years have also witnessed recognition of human rights
within regional groupings.
Obstacles
But, though human rights have received increasing respect from States
since World War II, significant obstacles remain on the road to the full
achievement of these rights.
conceptual foundations of the modern human rights project lack firmness and
precision. Why do we all have a claim to basic human rights? Are human
rights entitlements presented by an omniscient Supreme Being to humanity?
And, if so, do they come from the Christian God, or from the divine creator of
another religion.
In the alternative, could it be that the human rights project proceeds on
from a secularist core? Do we all have basic human rights because mankind
has agreed that irrespective of religion each person is entitled to a basic
level of dignity and respect?
There is no ready, undoubtedly correct answer to these questions; but,
the starting-point in addressing them may determine ones broad perspective
on human rights issues. If, for instance, you believe human rights to be Godgiven entitlements, then you may be inclined to the view that human rights are
immutable, that they are, and have always been fixed by God.
But if, in contrast, you argue that the recognition of human rights is
actually a secularist construct, then you may consider that these rights may
evolve as society changes, and indeed you may believe that, in some instances,
Western Bias?
A second conceptual problem concerns the putative Western-bias in
human rights issues. When the main human rights instruments were adopted
following World War II, the Western Powers were, generally speaking, in the
ascendancy, and they had a particular perspective on human rights.
Specifically, Western Powers tended to regard civil and political rights as
constituting the main rights to be recognized in practice.
Thus, the Western Powers and allies gave their firmest support to rights
that required governments to exercise restraint, the so-called negative rights.
The theory was that when the State hold back, the individual will come
forward, and achieve a life of independence and self-fulfilment.
During the Cold War, however, this perspective was open to challenge on
ideological grounds.
there was no convincing reason to assume that civil and political rights (e.g.
the right to vote, or freedom of expression) should be given greater respect than
economic and social rights (e.g. the right to employment, or the right to food).
greater respect for group rights versus individual rights, argued that some of
the underlying assumptions of Western human rights rules were culturally
inappropriate when applied in some parts of the world.
Universal Rights?
Arguments about the Western bias in human rights also tend to merge
into another conceptually question, namely, whether human rights must be
universally accepted as the same everywhere, or whether different cultures are
entitled to have different human rights. This debate universality of human
rights versus relativism has long been a staple concern of human rights
literature; and it stands at the heart of a number of practical problems in
human rights law today.
To return to the case of Jamaica, we are often criticised by some
countries (especially members of the European Union) for retaining the death
penalty within our national law.
Resource Constraints
Another set of obstacles to the full recognition of human rights arises
from resource constraints. At the broadest level, some civil and political rights
do not require the State to spend money: if the State recognizes, for instance,
the freedom of movement, then, on a day-to-day basis, the State incurs no
expenses as you enjoy this human right. So too, if the State leaves you alone
with your thoughts, your expression or your political views, then this will, in
the normal run of events, require no expenditure from the State.
The same does not apply, however, with respect to economic, social and
cultural rights. In the event that the State acknowledges your basic right to
health care, or your human right to employment, this implies that the State
must take practical steps to ensure that these rights are fully available to you.
Here, though, the wish and the reality may be far apart. Because economic,
social and cultural rights require the State to spend considerable sums to
provide basic services, it is often the case that these rights are not realized in
practice.
With this consideration in mind, the United Nations and the OAS, while
promoting economic, social and cultural rights, acknowledge that the provision
of these rights may turn on the level of development of the country seeking to
provide these rights. This approach is inevitable, given the resource challenges
shared throughout the global South.
Subjective Factors
Sometimes, too, human rights may not be fully recognized because of
subjective considerations. About 45 years ago, the Jamaican Court of Appeal
decided the case of A.G.R..Byfield v. Edwin Allen (16 WIR 1), a matter
concerning whether the then Minister of Education Edwin Allen had, in effect,
discriminated against Mr. Byfield on the basis of the latters political opinion.
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The Court found in favour of Minister Allen, and thus denied that there
was untoward discrimination in the Ministers decision not to have Mr. Byfield
selected as the Head Teacher of the then new Trench Town Senior School. For
present purposes, it may be sufficient to note that this decision was a close
call, turning 2-1 in Allens favour at both first instance and on appeal. Much
turned, it seemed, on a subjective appreciation of the facts.
As in the
case of Byfield v. Allen, the final adjudication of the matter may turn on a
subjective appreciation of the facts, but, from the human perspective, the issue
should always turn on what is in the best interests of the child.
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Politicisation
Yet another obstacle on the road to the full recognition of human rights
concerns the politicisation of rights issues. Politicisation is not necessarily a
bad thing, for it merely indicates that the political process has been called
upon to address particular issues. In the area of human rights, however, it
may be problematic when human rights groups come to be identified
substantially with one political party.
When the membership of a particular human rights group is predominantly
of one political perspective, this may damage the cause of human rights; for,
the wider public looking on may come to the view that the positions of the
group are predetermined by the desire to score political points for their
political party.
But it may be that this is a risk that the human rights group is prepared to
take, and if so, then that will be their own self-inflicted wound.
The State,
New Prison
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country for bad prisons, even if we are inclined to believe that other countries
have worse conditions than we do.
In light of the conditions prevailing in Jamaican prisons, international
perceptions about those conditions, and Jamaicas human rights obligations,
the Government should accept post haste international offers for assistance to
construct a new facility. In respect of every offer, the devil will be in the details,
but, given the brutal, awful, nasty, destructive way we currently treat human
beings who have run afoul of the law, we should cut through the political
arguments and put up a new prison as a matter of urgency.
And the human rights bodies that are often in the vanguard of criticising
the Government about prison conditions (with good cause) should actively
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encourage the Government to accept the recent offer by the British Prime
Minister in respect of a new prison. Human rights issues do not usually
generate easy questions, but they require us to put the interests of human
beings uppermost in our minds.
Stephen Vasciannie is Professor of International Law at the University
of the West Indies, Mona. He is a former Jamaican Ambassador to the
USA and the Organization of American States, and has also served as a
Deputy Solicitor General of Jamaica.
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