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Human rights mechanisms and anti-democratic systems

M. Espinosa talked during this webinar about Human rights mechanisms and anti-democratic systems.

Drawing on his experience and knowledge, he introduces his talk with a quote from Winston Churchill:

“It is better to know a little of everything than everything of one”.

The theme will be human rights, human rights and their evolution, as well as democracy in its current state of disrepair. Mr. Espinosa explains in his talk, “How could democratic voids endanger human rights and peace today, and certainly still tomorrow?”

A first point will be addressed on the following problematic:

“The evolution of human rights, are they truly universal and indivisible, have they evolved over time and what is the state of these human rights today?”

Until 1948, there were a large number of texts with which we are all certainly familiar, texts that we find in the most common references, such as the Code of Hammurabi, the Cylinder of Cyrus in 539 BC, Magna Carta adopted on June 15, 1215, the Bill of Rights in English-speaking countries and the Universal Declaration of Human Rights, to mention only the most important documents to have marked the history of an attempt to define human rights, all of which were either local or regional in scope. We had to wait until 1948 to see the first universal declaration of human rights.

Human rights of universal scope, placed under international protection and drafted by a commission made up of countries from all continents. We have Australia, Chile, China, France, Lebanon, the United States, the United Kingdom and the USSR.

During the vote at the UN General Assembly, which only had 58 members at the time, there were 8 abstentions, but no votes against. It was therefore the first awakening of the set of values already enshrined in the past documents that Mr. Espinosa had mentioned, and in other historic elections.

This declaration, at the beginning, and even today, had no binding value. It was signed as an intention to start thinking about how to protect human rights and peace universally. And it was only later, in the case of the work of the United Nations, that we began to draw up treaties, covenants and declarations that today bind states at various levels.

3 years earlier, in 1945, the UN was created, and its charter committed it to promoting effective universal respect for human rights. So the charter already refers to human rights, without knowing that 3 years later we would have this declaration. So “universal respect for, and observance of, human rights and fundamental freedoms for all” can be found in the charter.

This was the first stage in the history of humanity when the member states of a global entity undertook to recognize the universality and indivisibility of human rights. Rights and freedoms thus become, in a way, universal, with some particularisms tending to relativize it. This is the historic constitution of the United Nations for the generalization of peaceful democracies, a common ideal to be achieved by all peoples and all nations. This is how it was expressed in the founding documents of the United Nations.

And on this basis, it wasn’t until the 1960s that we were able to draw up two covenants that became binding on States: the Covenant on Civil and Political Rights. These are more individual in nature, and mark the era of civil and political rights protection. During the Covenant on Economic, Social and Cultural Rights, which marked the need to generate social rights such as health and education and, above all, to promote equal opportunities for all, conventions were added to these basic rights, such as the Convention on the Prevention and Punishment of Genocide, which dates back to this period.

The Convention against Torture and the Convention on the Rights of the Child are further examples. Shortly afterwards, documents were added that created very important United Nations bodies such as WHO and UNESCO, and other entities of all kinds such as intellectual property and telecommunications. In this passage, Mr. Espinosa illustrates the emergence of rights that all tend to generate security, development and a healthy environment for those who practice them. The right to a healthy environment is necessary not only to protect the environment, but also to protect the individuals who benefit from it.

There have also been important documents which complete this special protection tool, notably for the rights of women and disabled people. These are the conventions that have been added, and no one could have guessed that in 1948, when we signed this basic declaration, we would develop all these instruments thanks to the existence of all the United Nations entities that were created to implement them.

At the same time, there has been an evolution, in the same perspective of protecting rights, but with certain regional or cultural particularities. Written norms and customs have developed to meet these needs, introducing a certain relativism. For example, human rights and Islam. Islam bases human rights on belief. In the first instance, there is Quranic law, and all that comes after that are deductions from what is already written in the Quran. Espinosa underlines a conclusion that, in the practice of different countries, the relationship between Koranic law and UN instruments can vary. This requires a balance between cultural practices and beliefs, on the one hand, and the more universal, rational instruments of the United Nations, on the other.

OTHER INTERNATIONAL MECHANISMS

Africa’s mechanisms have also evolved, with the 1986 African Charter on Human and Peoples’ Rights. This sets out the rights and duties of the community of peoples. They have also signed a convention on refugees. These are regional instruments that are binding on the countries that sign them at regional level within the framework of the continents.

There are also mechanisms such as the Inter-American Human Rights System within the framework of the American organization, and the European Convention on Human Rights. These are instruments that do not claim to depart from either the spirit or the letter of the UN system, but which are implementation mechanisms.

The African Charter on Human Rights is also there to apply the law at continental level. From his personal point of view, the American Charter of Human Rights and the European Convention on Human Rights do not have this cultural particularity in relation to the documents developed by the United Nations.

So there you have it, an overview of the main existing instruments, all of which aim to protect the individual and the community, and to promote peace and democracy throughout the world.

Mr. Espinosa’s second point concerns the question of whether “democracies are complete? Is Democracy the least bad of all systems? as Churchill said”.

First of all, when we talk about the formality of a democracy, we’re talking about the right to vote, the separation of powers, the protection of individual rights and so on. These are the conditions that qualify a state as democratic. According to the figures, only around 60% of countries are considered democratic on the basis of these general criteria. Among the countries that are not democratic, there are necessarily those that are members of the UN and should respect human rights.

Mr. Espinosa draws attention here to countries in transition from anti-democratic regimes to democracy. Most of these countries in transition have been thanks to popular pressure, to civil society. Generally speaking, countries that are not considered to be fully democratic or anti-democratic are those with weak, fragile democracies according to studies.

193 UN member countries

The first point of conflict is that, in a UN system that aims to contribute to the generation of democracy, there are 80 countries, some of them dictatorships, that are members of the UN and have signed up to a large number of international instruments, yet fail to respect them. This proves two things:

  • System has not yet had sufficient scope to make the transition to democracy for these countries.
  • These countries have governance problems.

So how does all this relate to the implementation of human rights? What’s the main problem?

The principles and values of human rights, according to the multilateral system, are supposed to be implemented in democratic contexts, based on the principle of “national sovereignty”. If a country is unwilling to cooperate and respect a decision taken by one of the mechanisms, there is no binding mechanism to enforce a decision.

The only UN instrument that can become binding to force a country to respect all these norms is the Security Council.

There are many countries that hide behind what is known as a façade of democracy. These are countries where all powers are centralized, despite the apparent separation of legislative, executive and judicial powers, or where electoral fraud is widespread.

That’s why there’s this dichotomy between democracies that are part of a multilateral system which normally obliges them to implement the decisions of the mechanisms to which they have committed themselves, and countries at national level which, because of their national sovereignty, can afford to situate themselves as they please with a façade of democracy. Worse still, the geostrategic interests of individual states have a major influence on the multilateral system. Universal values are sacrificed on the backs of citizens for geopolitical interests. Even in Switzerland, as we often hear people say, “In international diplomacy, you don’t have friends; you only have interests.

Now we come to the third point of this speech: the “Three United Nations”. What are these three United Nations and what role do they play in building democracy?

The creation of possible sanctions, the training of observers to enforce these rights. Regional organizations were involved in implementation from 45 to the end of the 90s.

To ensure that all these mechanisms were put in place, the Office of the United Nations High Commissioner for Human Rights was created. Responsible for ensuring respect for human rights worldwide. For each convention/covenant, it was necessary to create mechanisms to monitor their application.

1 United Nations, member states meet to form a general assembly, a human rights council, an economic and social council, etc. In this case, it is they who are responsible for the implementation of human rights. In this case, they decide everything.

2. United Nations, UN experts and civil servants to facilitate the work of member states. Sometimes member states give them the power to implement a decision, as in the case of the regional office of the United Nations Commissioners in Colombia.

3. The United Nations is civil society. Article 71 of the UN Charter provides for consultation with non-governmental organizations dealing with matters within its competence. In 1945, it was already thought that civil society should have a place. Civil society, at all levels of the multilateral system, benefits from an established and formalized right. On the basis of this article, several international organizations have opened their doors to civil society in their own way. Examples include consultative status with ECOSOC, UNESCO, etc.

These three units, the United Nations, come together in a large conference, in a small meeting, in a decision-making process to steer this multilateral system as a whole. States are sovereign, civil society is there to exert pressure, and the staff are there to serve everyone at the right time.

The great difficulty, if I may repeat, is the expression of the public will of States to apply or not the instruments they have signed and the decisions taken by the United Nations system.

Uncompleted democracies can quickly turn into dictatorships or anti-democratic regimes, so what can we do to counter this in general?

No country in the world is spared human rights violations. Even in Switzerland, there are problems with the treatment of migrants, prisoners and so on.

Are human rights really in danger today? How can we protect ourselves? Are existing mechanisms effective and sufficient?

I’d say yes, human rights are currently in danger. Even if not in the same way everywhere, questioning human rights can generate instability, violence and so on.

At the United Nations Human Rights Council, it is easy for a country to find a majority hostile to a certain right, or to a certain situation of human rights violation.

The scope for action to remedy these problems is vast. Helping to strengthen the democratic process at national level, promoting education, freedom of expression and opinion, and gender equality.

We shouldn’t think that international instruments are finished. We need to help improve them and make them more effective. For example, we need to improve the speed of implementation. We must continue to support the expression of civil society. We need to open up more space for civil society, not only in front of the UN but also outside the UN system. We must continue to promote the strengthening of national human rights institutions, created by the government in accordance with the Paris Principles, to guide the government in respecting human rights.

Human diversity is an asset, not a threat. We must continue to protect minorities and indigenous peoples.

Without separating rights, all rights must be encompassed. They are one and indivisible: economic, social and cultural rights, civil and political rights and all the other rights that have been added subsequently.

We must continue to improve the mechanisms, but we must also reform the United Nations. The Security Council is far from democratic, and in the work of international mechanisms, civil society must become a more active participant in decision-making. For the moment, they are only consulted. All this helps to combat anti-democracies and promote human rights.

At present, the UN’s 2030 agenda is based on the objective of ensuring that the entire multilateral system, and all member states and the United Nations, move towards better protection of democracy and development. I recommend the text recently written by António Guterres, entitled “The highest aspiration: A call to action for human rights 2020”.

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