Human Rights : An Agenda for the 21st Century

493 Pages·1999·1.27 MB·English

by  Hegarty

HUMAN RIGHTS:
AN AGENDA FOR THE
21st CENTURY
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London • Sydney

A HUMAN RIGHTS:
AN AGENDA FOR THE
21st CENTURY
Edited by
Angela Hegarty, LLB, LLM, Solicitor
University of Ulster
and
Siobhan Leonard, LLB, LLM, Solicitor
Manchester Metropolitan University
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Cavendish
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Limited
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© Hegarty, A and Leonard, S 1999
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Hegarty, Angela
Human rights: an agenda for the 21st century
1. Human rights
I. Title II. Leonard, Siobhan
341.4'81
ISBN 1 85941 393 5
Printed and bound in Great Britain
For my parents, Maurice and Etta
Angela Hegarty
For my parents, Pauline and Kevin
Siobhan Leonard

FOREWORD
Over 50 years ago, in 1948, the world community took a bold step with the
proclamation of the Universal Declaration of Human Rights. Two years later,
the Member States of the Council of Europe took a step unprecedented in
international law. Henceforth, human rights could not be regarded as just a
matter for one government to invoke against another, at the former’s
discretion, in its role of providing consular protection to its own nationals.
Individuals would not be mere pawns in inter-State negotiations. They would
be actors in their own right on the international stage, entitled, as victims, to
bring their own and other governments before an international adjudicatory
body. Initially, this right depended on governments’ acceptance of certain
optional clauses of the European Convention on Human Rights but, today,
submission to jurisdiction is compulsory for States party to the Convention.
While the status of the individual in Europe has been enhanced
considerably over the past 50 years, work has continued both within Europe
and in the wider international community to supplement the core guarantees
– such as the right to life, freedom from torture, freedom of expression, and
the rights to liberty and a fair trial – with additional protections more finely
tuned to the circumstances of, for example, women or children or detainees
who might be at risk of ill treatment. Much has been accomplished and much
remains to be accomplished.
From this perspective, a major appeal of this book is the extent to which it
affirms that old values will hold good for new times. On one level, the studies
are firmly rooted in the existing achievements of what one of the many
distinguished contributors calls this ‘buccaneering age of rights’. The texts
give an impressive overview of the work of regional and international bodies
to ensure that there be a measure of protection – primarily at national level
but, if necessary, elsewhere – against attacks on the humanity and integrity of
individuals. This presentation of the status quo is probing and not uncritical.
Reflections range from – on the one hand – gloomy forebodings about the
ability of the reporting mechanisms of the United Nations or the capacity of
the new European Court of Human Rights to cope with logistical, political or
unusually sensitive problems that may be anticipated in certain fields, to – on
the other hand – celebrations of the continuing power of often tiny non-
governmental organisations to bring about change and the sharing of practical
information about how they do so.
On another level, the reader is presented with a remarkably even selection
of pressing challenges for the future development of rights and associated
jurisprudence. How meaningful are international agreements on economic,
social and cultural rights when there are still 1.2 billion people without access
to clean water? Is the proud record of the European Union concerning gender
equality in welfare and labour matters in ‘judicial retreat’? How effective will
the existing fora and the new international criminal court be when faced with
continuing incidents of torture and disappearances? How will fragile court
systems in new democracies cope with competing power interests when it is
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Human Rights – An Agenda for the 21st Century
known that the exercise of power in older democracies is not invariably
transparent? Where do minorities’ and indigenous peoples’ claims fit into the
overall scheme of public international law and how do the two concepts
differ? At a time when the Council of Europe Member States have found it
necessary to agree a new Protocol in response to the cloning of an animal, the
issues of abortion, fertility treatment and euthanasia come to mind: what will
be the spillover effects in all such fields of the freedom to engage in what one
writer graphically labels ‘bioethical tourism’? How can children be protected
against risks of genetic experimentation at embryo stage or commercial
exploitation on the internet?
These are some of the varied questions prompted, if not always
deliberately raised, by the material in this book. Underlying all of the themes
is a deep commitment towards people whose circumstances render them
vulnerable to violence, inequalities and arbitrary exercise of power. The
thread of the universality of human rights, as distinct from cultural relativism,
is to be discerned frequently. Given that the search for balance is inherent in
the protection of human rights, it is fitting that some are willing to confront,
whether hesitantly or robustly, the concept of duties and responsibilties
corresponding to or coexisting with the rights of an individual who interacts
with others on however modest a scale. Also raised is the stimulating concept
of allying human rights responsibilities to the weighty powers of
multinational corporations. It may not be entirely out of place to recall the
words of Aleksandr Solzhenitsyn, in his essay ‘Reflections on the eve of the
twenty-first century’:
Today, self-limitation appears to us as something wholly unacceptable,
constraining, even repulsive, because we have over the centuries grown
accustomed to what for our ancestors had been a habit born of necessity. They
lived with far greater constraints, and had far fewer opportunities. The
paramount importance of self-restraint has only in this century arisen in its
pressing entirety before mankind. Yet taking into account even the various
mutual links running through contemporary life, it is nonetheless only through
self-restraint that we can, albeit with much difficulty, gradually cure both our
economic and political life ... [Gardels, NP (ed), At Century’s End, 1995, San
Diego: ALTI; 1997, Dublin: Wolfhound.]
If somewhat similar considerations could prompt concern over a possible
need in the future for what one contributor terms ‘quality control’ to protect
the label of internationally protected human rights, who would doubt the
continuing pressing need to protect the core meaning values that were
recognised in the light of the Holocaust more than 50 years ago? At a time of
tragic events in Kosovo and elsewhere, it is salutary to read that in 1993 it was
forecast that the last decade of this century and the first decade of the next
century would be ‘the age of migration’ and to learn of the relatively
welcoming attitude of developing countries towards displaced people and
refugees.
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Foreword
Events in various parts of the world still underline how true to the core
values of the United Nations and the Council of Europe are practical and legal
measures to address the phenomenon of violence against women; to protect
human rights activists, lawyers and medical practitioners against
intimidations or worse; to help establish, even in states of emergency, effective
and impartial investigations at domestic level, with proper forensic evidence
gathering techniques, whenever there is an allegation of death, disappearance,
ill treatment or racial/ethnic harassment; and to pursue vigorously, at
international level, acts of genocide. Experience in the European Commission
of Human Rights has impressed upon me the difficulties that may be
encountered by an international fact finding body when assessing evidence –
perhaps through interpreters and without familiarity of the local conditions,
perhaps without power to compel a witness to attend, perhaps without any
contemporaneous eye witness statements about an incident, perhaps without
detention records or scene of crime reports or autopsy examinations. It may be
that one of the major challenges of the coming years will be the establishment
of high quality investigation standards even in relatively poor countries so
that rulings of law, whether at domestic or international level, can be based on
reliable findings of fact supported by evidence that has been gathered, insofar
as possible, while still fresh. Laws written on paper can be of questionable
value in the absence of effective official investigations. Given the importance
of the work of non-governmental organisations in this connection, their
insights into such matters are particularly timely.
In these days when so many are in need of constructive words and actions
in the cause of their human rights, the reader of the pages that follow will be
heartened and encouraged by this forceful gathering of – to use Emerson’s
words – ‘voices in the land, speaking for thoughts and principles not
marketable or perishable’.
Jane Liddy
Formerly President of the First Chamber
of the European Commission of Human Rights
May 1999
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