10 December 2008 is the 60th anniversary of the adoption of the Universal Declaration of Human Rights by the UN General Assembly, the first general catalogue of the rights of individuals to be made the explicit subject of international standards. A 60th birthday is usually the moment to celebrate a life well-lived, success in public and private life, and perhaps to anticipate a comfortable retirement. But these are not apt measures for the UDHR. It was and remains a controversial document. Many of the debates that surrounded the Declaration sixty years ago are still alive today, particularly the question whether it can claim universal application in a world marked by religious and cultural differences. Although experts from many cultures were involved in drafting the UDHR, some countries argued that it was a Western enterprise. For example, Saudi Arabia criticised the reference to the equality of the rights of men and women in relation to marriage under Article 16 and the right to change one’s religion in Article 18 as a form of colonialism.
Recent debates at the United Nations show that the issue of universality is still contested. Last year, the UN Human Rights Council adopted a resolution, introduced by Pakistan, entitled ‘Combating defamation of religions’. The resolution encourages states to prohibit criticism of religion and focuses on Islam in particular. The religious defamation issue was framed as one of Western rights against Islamic values.
The resolution conflicts with the protections of freedom of thought, belief, opinion and expression set out in the UDHR and later human rights treaties. It contains no criteria to determine when freedom of speech crosses over into unacceptable religious defamation. While international human rights standards accept the possibility of limitations on freedom of opinion and expression, for example to protect public order or public health, it is not clear why religions should be protected against criticism. Although it is clear that there has been inadequate attention given to understanding Islam in the West, the resolution offers a crude solution. By implying that states have a duty to prevent criticisms of and debates about religions, particularly Islam, the resolution seems more intent on protecting religious ideas rather than the rights of individuals to religious freedom.
Attacks on the universality of human rights are also common in the West, although they are not usually pitched in these terms. Western governments often find international human rights norms as irksome and confronting as non-Western governments. The conduct of the ‘war of terror’, in particular, has led Western governments to resist the universal application of the UDHR. Indeed, across the globe the post-September 11 era has generated laws that attempt to reduce the threat of terrorism. One local example is the 2005 amendments to the Commonwealth Criminal Code, enacted in the wake of the London bombings. These amendments rest on a very broad definition of terrorism and introduced preventative detention orders, control orders and expanded the definition of sedition.
The Australian laws raise serious human rights questions: both preventative detention and control orders are mechanisms that are inconsistent with the rule of law and with human rights principles such as the right to a fair trial and the right not to be arbitrarily detained. The sedition provisions are inconsistent with international guarantees of freedom of speech.
Professor Conor Gearty pointed out in his 2006 Oxford Amnesty Lecture that the war against terrorism is built on a division of the world into ‘good’ and ‘evil’ camps. This goes against the main element of the idea of human rights developed over the last 60 years -- human rights attach to every person, regardless of whether we label them good or bad.
The universality of human rights then remains controversial sixty years after the adoption of the UDHR. All types of governments tend to stake out areas in which recourse to human rights standards is suspect. In this sense, the UDHR remains a radical document. It is difficult to imagine that the economically drafted text of the thirty articles of the Universal Declaration could emerge from a 21st century United Nations process. Today, the formulation of the rights contained in the UDHR would be much more qualified. They would be hedged by the language of exception and special circumstances.
We should hold onto the ideal of universality in the human rights area and resist attempts from all sides to water it down. Universal principles can accommodate pluralism and cultural diversity while embodying a commitment to a flourishing human life. The idea of universal human rights is valuable also in that it makes us scrutinise opposing claims of culture carefully. Whenever exceptions to human rights based on cultural difference are proposed, we should investigate the political agenda of the culture claim.
The future of the Declaration involves balancing the power of universal ideals with the inevitable specificity of their translation in particular local contexts. Claims that human rights do not acknowledge cultural difference are overplayed and indeed are regularly used as a gambit to avoid human rights scrutiny by governments of all shapes and sizes.
Hilary Charlesworth is Professor of International Law and Human Rights in the ANU College of Law