Maintaining the UN's moral gold standard

Today we mark the 60th anniversary of the UN Declaration of Human Rights. Reflecting on the anniversary earlier this year, the Irish poet Seamus Heaney observed:

'Since it was framed, the Declaration has succeeded in creating an international moral consensus. It is always there as a means of highlighting abuse if not always as a remedy: it exists instead in the moral imagination as an equivalent of the gold standard in the monetary system.

'The articulation of its tenets has made them into world currency of a negotiable sort. Even if its Articles are ignored or flouted — in many cases by governments who have signed up to them — it provides a worldwide amplification system for the "still, small voice".'

Nowadays it is fashionable to postulate that the Declaration was a peculiarly western, individualistic conception, emphasising rights rather than responsibilities. It was not. Though Eleanor Roosevelt and Australia's H. V. Evatt oversaw the declaration's passage, Frenchman René Cassin, Chilean Hernan Santa Cruz, Christian Lebanese Adam Malik and Chinese Confucian Peng-chun Chang also contributed to this truly international undertaking.

Early in the drafting process, they consulted religious and philosophical greats such as Teilhard de Chardin and Mahatma Gandhi. Even Aldous Huxley made a contribution. It was the Jesuit palaeontologist Teilhard who counselled that the drafters should focus on 'man in society' rather than man as an individual.

The drafters knew any catalogue of rights would need to include words of limitation. Article 29 of the Declaration speaks not just of rights and freedoms, but also of duties, morality, public order and the general welfare:

In the exercise of his rights and freedoms, everyone shall be subject only to such limitations as are determined by law solely for the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality, public order and the general welfare in a democratic society.

So from the outset, the declaration envisaged that individual rights could be limited not just by the individual rights of others, but for the preservation of public order and for the general welfare of persons in a democratic society, and also for morality — presumably to maintain, support, enhance or develop morality in a democratic society. Sixty years later, these limitations are often overlooked.

Two years after the declaration was proclaimed by the UN General Assembly, the Council of Europe decided that 'one of the methods by which that aim is to be pursued is the maintenance and further realisation of human rights and fundamental freedoms'.

The European Convention for the Protection of Fundamental Rights and Freedoms was open for ratification. Since then many countries have enacted their own bills of rights in constitutional or statutory form. Australia is now one of the few pluralist democracies without its own home grown bill of rights.

On Monday, human rights lawyers gathered in London to mark the 10th anniversary of the UK Human Rights Act. Professor Dominic McGoldrick, a self-confessed 'fan of the Act', claimed that it has 'changed the way we think', allowing judges and parliament to play a role in arriving at a 'fair punt between a particular individual and a particular community'.

Professor Conor Gearty thinks the Act has allowed judges to reassert their power in their areas of special competence, pulling Parliament into line when it gets too populist in trampling the rights of unpopular minorities like asylum seekers and prisoners.

Meanwhile, across town, Gordon Brown's Justice Secretary Jack Straw, who had introduced the UK legislation for Tony Blair in 1998 was sounding warning notes that the law does not get the balance right:

'I fully understand that (people) have concerns about the Human Rights Act. There is a sense that it's a villains' charter or that it stops terrorists being deported or criminals being properly given publicity. I am greatly frustrated by this, not by the concerns, but by some very few judgements that have thrown up these problems.'

The Tory Leader David Cameron took the opportunity to weigh in, calling for 'a homegrown British Bill of rights' rather than the Human Rights Act which faithfully replicates provisions from the European Convention on Human Rights. Lawyers like McGoldrick concede that the UK law is presently very unpopular 'with the man in the street' and with the tabloid press, but he insists:

'It may well be that, in practice, the people who have had most need of its protection are rather out of the ordinary; but that does not alter the fact that it is there to protect us all as we go about our everyday lives.'

Sixty years on from the UN General Assembly's proclamation of the Declaration, democracies such as Australia and the UK are still seeking the best means for providing a fair punt between the individual and society, and for determining the law and policy on big ethical questions about which there is no community consensus.

Victoria and the ACT now have statutory bills of rights. Other Australian jurisdictions do not. As the UK does some fine tuning of its ten-year-old law, the time is ripe for Australians to conduct a national conversation about how best to provide the fair punt for all, making the State attentive to the still, small voice of conscience, especially when the unpopular villain is being demonised in the public square.

LINK:
The Universal Declaration of Human Rights