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Charters and the Universal Declaration of Human Rights

Seventy Years of Aspiration: Rights Charters and the Universal Declaration of Human Rights

It was a gathering of activists masquerading as deep thinkers. Ostensibly, it was to celebrate seven decades of the Universal Declaration of Human Rights, one devised in the aftermath of a traumatised world and easier to do so for that fact. But this gathering on Lonsdale Street, Melbourne which featured irritatingly optimistic speakers showed the lamentable weaknesses in the human rights project. Human rights continues to be ever susceptible to personalisation and haggling, a manipulated concept that all too often serves the select.

Human rights remains as much fashion and political statement. In Australia, the idea that such rights have truck with the political classes is a very flimsy notion indeed. A country that praises itself constantly as a paragon of freedoms and liberties is bound to find common ground with those people’s democracies who insist on keeping political prisoners and confining individuals indefinitely. Australia’s record on matters regarding the UDHR remains abysmal: indefinite detention regimes outsourced and funded on tropical Pacific islands; permitted, open-ended control regimes for those who have served their time in prison yet still remain a matter of interest to the state; and various infractions committed after September 11, 2001 in anti-terrorist operations.

Rights documents, be they the universal declaration itself or a charter that might embed those provisions, is also politically difficult to sell. When Prime Minister Kevin Rudd received the report from Father Frank Brennan on having a Human Rights Act he insisted, rather uncharitably, that he had been served a shit sandwich. (Scatological references were a favourite theme with him.) Despite going through the exercise of having such a consultation committee, the project for a human rights act would be shelved; the sense that Australia remains resistant to such abstract notions as free speech and privacy remains strong. Many thanked their stars that the decision by Rudd had essentially set back the discussion of rights in Australia by a generation.

The Charter of Rights movement is yet another grouping of human rights activists and lawyers in Australia attempting to encourage the country’s citizens to embrace something tantamount to a Bill of Rights. It uses the bland measures of advertising and mild condescension, more in the hope that citizens will succumb to the sheer power of persuasion.

But even these advocates cannot, nor want to see the implications of having a firm, entrenched civil and political rights document immune from the predations of Parliament. Shen Narayanasamy, Human Rights Campaign director at the lobby group GetUp!, managed a sneer at the idea of free speech, largely because it was the sort that might be embraced by affronted conservatives and self-satisfied bigots.

Lee Carnie of the Human Rights Law Centre, a fellow panellist, argued that any charter would necessarily have to be subordinate to the wishes of Parliament. The “legislative dialogue model”, as it is termed, still privileges the role of that all-powerful, and often erratic body, one that can imprison, separate from the judiciary, any citizen or resident who supposedly impugns and impairs its functions. Parliament, notably one run by majoritarian instincts, remains a constant threat to the liberties of the citizenry.

Such views seem to come from the harsh bottlebrush of Australian suspicion: we have rights, but these are revocable by the whim of the legislature; we have rights, but these are susceptible to modification by judicial and parliamentary fiat. The result is a rather meagre appreciation for the very idea of rights, one stifled by process.

What, then, are Australians left with? The Universal Declaration, or what lawyers suggestively term “soft law”, comes to mind. As “soft” law, it should not be treated as irrelevant and without utility; its crawling influence has been significant and long lasting, even if removed from any direct enforceable mechanism. It is not the stuff to make black letter lawyers swoon; in some cases, it causes them considerable bowel disruptions of discomfort.

In the words of Michelle Bachelet, UN High Commissioner for Human Rights, “It has withstood the tests of passing years, and the advent of dramatic new technologies and social, political and economic developments that its drafters would have foreseen.” As the United Nations information site claims, “the UDHR has inspired a rich body of legally binding international human rights treaties.” With confidence the organisation insists that “more than 80 international human rights treaties and declarations, a great number of regional human rights conventions, domestic human rights bills and constitutional provisions” have been birthed in that vortex of inspired drafting.

Scepticism and criticism of it remain. It has been accused of ethnocentrism, Western-oriented tendencies and presumptuousness. Ajamu Baraka sees the document as nobly inspired but hopelessly applied, historically bound and shackled to bad habits of history. “The historic project temporarily diverted by the war as a result of the German bringing the horrors colonial domination unleashed by the European invasion of what become the ‘America’s’ in 1492, back to Europe, and applied to other Europeans.” (He avoids any mention of Japanese brutalities and the World War undertaken in the East which had its own variant of domination at play.) His suggestion is one of decolonising the declaration.

Aspirational gloss has always been central to such a document; application continues to be, if not poor, then non-existent in some cases. We are left with the imperfect callings of soft law, one that seeks to move and germinate, rather than becoming, in of itself, an enforceable document it can never hope to be.

Dr. Binoy Kampmark was a Commonwealth Scholar at Selwyn College, Cambridge. He lectures at RMIT University, Melbourne. Email:bkampmark@gmail.com

[1] Michelle Bachelet, “70th Anniversary of the Universal Declaration of Human Rights,” Office of the High Commissioner, Statement, Dec 7, 2018, https://www.ohchr.org/en/NewsEvents/Pages/DisplayNews.aspx?NewsID=23983&LangID=E


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