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Dear members of the university, guests, dear friends,
Thank you very much for the invitation to address you. I am honoured to speak in this ancient and distinguished institution. I am humbled at the thought of taking the floor in the home of Grotius, a founder of modern international law.
The Universal Declaration of Human Rights and the human rights system
Today, Human Rights Day, marks the anniversary of the adoption by the United Nations General Assembly, in 1948, of the Universal Declaration of Human Rights. The Declaration is an astonishing text. Already its very first words are thrilling. At the beginning of the preamble, it states that, ‘recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world’.
In other words, it locates the individual, and the well-being of the individual, at the epicentre of all social order. There then follow thirty articles extrapolating what that must look like in practice, expressed in the form of rights for individuals and duties for States. The rights address the range of diverse contexts where human wellbeing must be taken care of - social, economic, civil, political, and cultural. At article 29 of the text, it is stated that with rights also come duties to the community and that rights may be limited in a proscribed manner if necessary for public good.
The breadth, scope and sophistication of the Universal Declaration are remarkable. They reflect the extensive preliminary reflections of diplomats, philosophers, and jurists as well as of the diverse global backgrounds of the core drafting team. The more prominent members of that team were P.C. Chang of China, Charles Malik of Lebanon, Rene Cassin of France, and, as chairperson, Eleanor Roosevelt of the US. Recent studies have demonstrated how elements of the Declaration were inspired by sources as diverse as Thomas Aquinas and Confucius. In summary I think it fair to say that the Universal Declaration constitutes a unique vocabulary, a language, to give meaning and content to the concept of human dignity.
Although the Declaration was adopted as a political resolution rather than as a legal instrument, it is generally accepted that today it has the status of customary international law. In any case, at two World Conferences – in Teheran in 1968 and Vienna in 1993 – it was endorsed by the UN Member States. Several countries also have incorporated the Declaration into their national constitutional orders.
In the period since the adoption of the Declaration, numerous treaties have been elaborated to build on it and to spell out a corpus of human rights law. Judicial and quasi-judicial institutions have been put in place to undertake international supervision of its implementation. UN actions were often matched and sometimes exceeded at regional levels. Here in Europe, we benefit from the roles played by the European Court of Human Rights and other Council of Europe bodies. The European Union adopted its wide-ranging and binding Charter of Fundamental Rights, and the Court of Justice has assumed a clear fundamental rights jurisdiction. And of course, here so close to The Hague, we acknowledge the vital work for human rights of the International Court of Justice and of the International Criminal Courts and other related tribunals.
Legal developments have been matched by diplomatic, political, and other initiatives. The UN has a High Commissioner for Human Rights, with monitoring and capacity building experts deployed across the world. The UN Human Rights Council plays a major role, for instance by means of its panels of inquiry and the monitoring work of its independent experts. At the Council of Europe there is a Commissioner for Human Rights. The EU established the office that I lead – the Fundamental Rights Agency – a globally unique form of human rights entity.
At the national level a notable human rights architecture has emerged beyond courts and other State bodies, comprising, national human rights institutions, equality bodies and various human rights-related oversight instances. At all levels – national, regional, and global - civil society in all its breadth plays an essential role.
It is important to acknowledge the extent to which the human rights system has delivered for human wellbeing in its 74 years of development. Across all the categories of rights the lives of countless millions of people have been transformed. Here in Europe, much that we take for granted in our daily lives derives from or is protected under human rights law. My own country, Ireland, has been transformed for the better in recent decades, in some part as a result of judgements of the European Court of Human Rights.
I can recall very many moments when I directly witnessing the positive power of human rights.
I remember how, in Bosnia-Herzegovina during the war, our human rights monitoring came to shape understanding in the UN of the situation, which in turn resulted in strong human rights provisions in the peace agreement.
Some years later, in Sierra Leone, our human rights-based arguments saved a number of people from execution by the State. I also recall how – solely because I was a human rights monitor – rebel fighters gave me access to abducted children and allowed me to have them returned to their families.
I remember with satisfaction how my human rights-related evidence helped prosecute war criminals, including President Charles Taylor of Liberia.
When I led the Human Rights Commission in Northern Ireland, I saw how putting a commitment to human rights at the core of the corporate culture of the police force could transform policing.
Every day in my current job I witness how human rights evidence underpins EU policy in support of people at risk in our societies. Just last week, during meetings with leaders in the Jewish community, I was told how survey data generated by my Agency has played a critical role in getting governments to tackle antisemitism.
These are just some personal reflections, and I know that they are matched by the experiences of many of you in this room.
The situation today
All of that said, of course, we need to do a rigorous assessment of the global effectiveness of the human rights system today.
The context for that assessment is not encouraging. We are in what is being called an omni-crisis. Europe is experiencing a brutal war of aggression with all its consequences, in and beyond Ukraine. We live with the legacy of COVID and our responses to it. We may be in the end game of the climate crisis. Our societies are experiencing rampant disinformation. Our democratic institutions are under attack. Take just two reports issued last week, one from International IDEA and the other by the World Justice Project. The former states that over the past five years democracy has eroded in 26 countries on the continent of Europe and that in six countries there has been a significant decline in media integrity. The other report, on the situation of rule of law, ranks states out of 10. No EU member state gets a ten, just one – Denmark is awarded a nine. Eight countries – including the Netherlands – get an eight. 12 countries have a mark at 6 or lower.
In these circumstances it will come as no surprise that the human rights system is under pressure, underutilised and underperforming. What you might find to be startling is quite how problematic is the current situation.
For me six aspects stand out:
The first is the extent to which human rights violations persist. Notwithstanding the compliance levels, every day, shocking abuses of people are perpetrated or tolerated by governments. While a few rogue states gain most of the attention, the practice of human rights violation is worldwide, with every state, to a greater or lesser extent implicated. The full canon of human rights is engaged, with non-implementation of socio-economic rights as flagrant as that of civil and political rights. Groups of humans are targeted on the basis of identity – race, religion, gender, sexual orientation. Human rights defenders are under pressure everywhere. Patterns of violations are matched by widespread neglect to weave human rights standards into law, policy, and practice. Even states that champion some rights can disregard or under-engage others.
Second, it has become increasingly common to witness violation accompanied by repudiation of human rights law. This would once have been considered unthinkable – until recent decades efforts would be made to hide or deny violations, sometimes to argue that a practice was not illegal (recall the US Bush administration regarding abuse of prisoners in Afghanistan), but it was extremely unusual to expressly disavow the standards. This is witnessed at its most stark in the withdrawal of states from human rights treaties. More commonly it is found in the statements of political leaders. This repudiation of values can be observed worldwide, with a number of recent examples in Europe.
My third concern is closely related and regards the extent to which human rights is coming to be seen as just one of many ways in which to regulate or protect societies – that it can be disregarded in favour of alternative approaches. Thus, there are calls for development ‘instead’ of human rights and for various economic models to tackle poverty rather than a rights-based approach. Social goods are increasingly presented as alternatives:
The increasingly strong presence of such views in policy and governance sectors is paralleled by an academic discourse. Authors argue that the moment of the human rights movement has passed and that new models are needed; even that it does more harm than good or is fundamentally flawed.
Fourth, when human rights are engaged, often the discourse is confused, for instance when they are invoked in an absolutist manner, or when on the basis of false assumptions, such as on a claimed primacy of civil and political over socio-economic rights. A result of these and related tendencies is to address human rights in an ever-narrower range of sectors, for example the judicial system, and otherwise to push them to the periphery of discourse, to invoke them pro-forma or to overlook them entirely.
The evidence for this marginalisation of human rights is overwhelming. Take, for example, national policy responses to the pandemic. These impacted human wellbeing enormously but were typically devoid of analysis grounded in human rights obligations and responsibilities. And how else to explain the very limited and narrow reference to human and fundamental rights in the outcome report of the recent Conference on the Future of Europe?
Fifth, for all the achievements, the global human rights architecture remains incomplete and in need of repair and strengthening. Take the UN: its Human Rights Council is riven with disagreement; the treaty body system needs consolidation; human rights actors like the High Commissioner are deeply under-funded, receiving just 4.3% of the UN regular budget; human rights mainstreaming across the UN organisation is far from complete; tools to get States to comply with human rights findings are weak. Regional systems, where they exist, are also under pressure. The weaknesses and the failure of the systems undermine confidence and compromise the perceived integrity of the various institutions.
Finally, surveys and other evidence demonstrate that, at least here in Europe, many disadvantaged members of our general populations are not greatly interested in human rights. They may be vaguely aware of them, and they certainly demand values and ethics in public life, but for them human rights are about others, often far away, not about ‘me and my family’.
Some elements of what is needed
And so, the question is what can be done to revitalise human rights, to realise the dreams of the drafters of the Universal Declaration? Well, inaction is not an option. As I said earlier, the Declaration, with the standards and systems that it inspired, are the unique articulation of what it takes to honour human dignity. As a former UN human rights leader once put it, ‘there is no plan b’. The attention then must be concentrated on how to fix the system and make it ever more effective.
The repair work has received much attention in literature and debate. But the focus tends to be on such issues as treaty change, institutional reform and broadening the substantive scope of human rights activity. This is necessary and important, but it is not enough. We also must also rebuild confidence in human rights; restore the compelling quality of human rights advocacy. I have six suggestions:
First, get back to the law.
To an increasing degree, human rights claims are framed in ethical or moral terms, engaging such values as ‘fairness’. We often also see them presented under non-human rights categorisations, such as ‘rule of law or ‘democracy’. Such approaches clearly have their worth, but they are not enough. Human rights claims are legal entitlements, and they can and should be forcefully asserted as such.
What is more, too much human rights discourse has become untethered from law, rendering it vulnerable and subject to subjective interpretations – to take just one example, this is evident in much of the discourse on migration. And, of course, when I suggest getting back to the law, I mean all the law – socio-economic and cultural as well as civil and political.
Second, we need to evidence our claims.
The application of human rights law to social reality is sometimes straightforward: the state must not torture people or perpetrate summary executions. But often the situation is very unclear, both in terms of identifying the facts and proposing remedial action. Human rights assessments and related claims need to grapple with these uncertainties to make convincing evidence-based demands. As I have come to appreciate in recent years, there is a wide array of tools that can be drawn on, including surveys, data mining, other quantitative research tools and various forms of empirical inquiry. They need to be engaged in inter-disciplinary ways. They allow us to ‘make the business case’ for human rights demands.
Third, go local.
The great part of the regional and international human rights oversight systems focus on the state, engaging countries at the level of their central governments. Inevitably, human rights advocates follow along the same trajectory. Even at the national level, most human rights activism addresses the state itself. All of this occurs despite the importance of sub-national governance, be that of the region, the city, or the municipality. It is often at these levels that human rights can be violated, defended, and protected, as we saw with the arrival of millions of people fleeing Ukraine. We need to deepen our investment in local-level human rights work. This is the context for the ongoing work of my Agency with the human rights cities movement.
Fourth, get the message across.
It is not enough to make compelling human rights claims. It is necessary to effectively communicate them. Human rights actors need to become more skilful in this regard by addressing such issues as:
Again here, the Fundamental Rights Agency is on a rewarding journey of discovery along with several other human rights bodies in Europe.
Fifth, build alliances.
We can greatly deepen the impact of our work if we invest in cooperation with important social sectors. Take the business world. Much has been said about corporate compliance with human rights but considerably less regarding the need for strong partnership with business. Across multiple areas, including the development of artificial intelligence and the operation of digital platforms such cooperation is essential.
Other partnerships can be forged with disparate groups in society who share a desire to build a just and fair world. With them human rights can become a common language and road map to pursue those goals together. There is still much to do in building alliances with, for instance, faith communities. In any partnership with a faith community there may well be points of difference, but I suggest these can be acknowledged and handled in a manner that does not impede cooperation in the many areas of full agreement.
One further form of alliance is particularly urgent – intergenerational partnership. We are witnessing a breakdown in trust across generations. Many young people have lost confidence in people my age – we have let them down and compromised their future, above all regarding the environment. Older people have lost trust in all of us, considering that we disregard them, as was so evident in the context of Covid. Again here, I believe that human rights can serve as a shared language to allow us to work together to fix our world and honour all its people.
Sixth, get human rights education (back) into schools.
Human rights is about and for people, but we seriously underinvest in telling them this. Despite decades of advocacy, it is still the case that human rights receive only the lightest of attention in primary and secondary school curricula. It is not that children should become lawyers but rather that they come to understand that human rights and responsibilities - in all their breadth - are about them and are central to the well-being of their communities.
Friends, with my six suggestions I have offered some ideas to strengthen the role of human rights in our societies. But I am not naïve – the future of human rights will require so much more. Above all it needs brave, principled political leadership. It also needs forums in which to demonstrate that leadership. For this reason, I welcome the decision by the Council of Europe to convene, in May of 2023, only its fourth ever Summit of Heads of State and Government. The Summit, to take place in Reykjavik, offers a rare opportunity to galvanise efforts for the protection of human rights on this continent.
And, to conclude,
I am often asked how I can hope. How, considering the endless crises and the weakness of the human rights system, I can believe in a better, fairer future. I answer that I draw my hope from many places. I get it from observing how resilient are the human rights institutions, regardless the pressure they come under. I get it from acknowledging those moments when, somehow the system is strengthened and improved. I get it from the honour of meeting so many principled, brave, and determined human rights defenders. Ultimately, I get it from personal experiences. From those moments when I saw directly how human rights can transform lives. Let me leave you with just one more memory to add to those I mentioned earlier.
Some 15 years ago, together with other human rights lawyers and practitioners, I mapped out the application of existing human rights law regarding the lived experience of members of the LGBTI communities, an exercise that became known as the Yogyakarta Principles. The principles were impactful at national and international levels. But what I recall now, is how a few days after publication, we received an email from a gay person who wrote, ‘yesterday I didn’t exist but today, after reading the principles, today I am a human being’.
It is on the basis of memories like this that I keep going, that I believe we can, we must, achieve the dream of the Universal Declaration of Human Rights, of a world where everyone is equal in dignity and in rights.