A few weeks ago, the international community celebrated the50th anniversary of the Universal Declaration of Human Rights which is extremely topical at present. It is a phenonemon which receives emphasis from all sides.

In fact, this topicality is somewhat ambiguous, since we almost inevitably link it with the multiplicity of violations worldwide and with governments trying to buy themselves ‘an easy way out’; in this respect, it might have been preferable to see the Declaration less topical, as it would then enjoy better respect, but fortunately, we do not need to decide this: the power of the Declaration, in a positive sense, gets its strength from an original text which, in and through its very universality and timelessness, leaves scope for a historical view of societies, of course, but also of Human Rights themselves. The Declaration, which might have seemed the lowest (and rather theoretical) common denominator of nations, individuals and societies, all very different, carries, in its very abstract nature, interesting elements of modern political, economic and social trends, but also cultural and legal trends as this century draws to a close.

This 50th anniversary thus represents an occasion to think about these new potentially daunting issues which were not anticipated in 1948. As we all know, human rights theory is based on a simple dichotomy between State and individual. In this traditional concept (simplified here), states have both positive and negative obligations: negative, where civil and political rights or freedoms are concerned (freedom of conscience or expression etc.) where the state does not have the right to encroach on the sphere of private liberty; positive where economic, social and cultural rights or obligations are concerned and where the state is under an obligation to guarantee certain basic needs, such as education, health and housing, etc. We will not dwell on the differences between the Anglo-Saxon and French legal traditions here. Although important from the point of view of Human Rights theory (and even the translation of Human Rights into law), their principal axis remains unchanged, i.e. a vertical axis, setting the individual against public power whose authority is a source of abuse and at the same time guarantor of freedom.

Change in the subjects of rights: Interestingly, this simple concept is today no longer sufficient, since, first of all, the subject or beneficiary of human rights has advanced in a certain direction. Although the rights of the individual remain at the centre stage, as evidenced by the various special treaties that have been added to the Declaration to guarantee the rights of particular groups of individuals, such as women and children, a greater focus has been put on collective rights, i.e. the rights of an entire collective entity itself, with the ‘second’ and ‘third’ generations of human rights. This can be a particular community (religious, social, cultural, etc.), with peoples’ right to self-determination or the rights of minorities as typical examples. This body of collective rights may even extend to the whole of mankind, for instance, where the right to the environment or the right to peace are concerned. Interestingly, this concept of mankind is generally also seen as including the rights of a potential group, i.e. future generations.

But it is not only where the subjects (beneficiaries) of these rights are concerned that the concept of Human Rights has been extended. It has also been extended where the object (the area where human rights can be invoked) is concerned. Some of these human rights within this larger concept have already been mentioned, e.g. the right to the environment, the right of peoples to dispose of natural resources, but even the right to leisure and cultural activities, and, more recently, the right to non-discrimination on the grounds of genetic inheritance. These new rights illustrate the extent to which the field of potential threats to humans has increased, and as a result, that part of the human being which needs protection has also become wider.

This parallel advancement of the subject and the object of human rights is not possible to comprehend without taking into account its corollary, the ‘other side’, i.e. the change in the type of violations committed, and the different nature of agents involved in the respect (or non-respect) for human rights.

Changes in the type of violations: The most striking fact about the human rights violations committed over these last few decades is, above all, their massive scale, as illustrated by such absolutely scandalous tragedies as crimes against humanity and genocide - crimes whose very definition signifies that it is the whole of mankind that is drawn into these crimes and affected by them. But, this is also a characteristic that is striking about some violations of economic, social and cultural rights which have been exacerbated through the phenonemon of economic globalisation, for instance, tens of millions of people throughout the whole of Asia have suddenly been plunged into extreme poverty by the effect of the financial crisis. The important element here is that this is not simply a purely quantitative question - this evolution in scale is, also in qualitative terms, a symptom of a new form of political malaise.

The second striking element is the emergence of new actors in the field of human rights - and human rights violations, actors who no longer fit in the framework of the classical binomial of state and individual. A growing number of violations is directly linked with acts committed by actors outside the realm of public power, to mention only multinationals whose economic power (and resulting political influence) is often disproportionate to the influence of public power, and this influence does not always go in the direction of human development. In this context, we only need to mention international financial institutions (IMF, World Bank) and the social impact of the infamous structural adjustment policies. These examples also highlight the reality of the concerns of human rights defenders:

Even though civil and political rights now constitute a norm that has become increasingly accepted at the international level and even though the idea of democracy has also been increasingly adopted in a number of countries around the world, such phenonema as under-development persist; the fourth world, extreme poverty and large-scale unemployment only illustrate the fact that it is now the violations of economic, social and cultural rights which pose the greatest challenge to the Declaration as this century draws to a close. Here again, globalisation is not alien to these trends which inevitably reduce the power of national states, notably in areas like manufacturing, social welfare reform, management and control of resources and their distribution, development policies, which results in the fact that the national entity increasingly disengages from the economic sphere, or is, in any event, no longer the dominating power. On the contrary, this underlines the importance of a function of the state that has hitherto been neglected, namely the protection and advancement of human rights and the state as a regulator of the activities of these new actors. It is the responsibility of the state to ensure that, through appropriate legislative, administrative, political and social welfare measures, the activity of these actors effectively helps to promote greater respect for human rights for all.

Another, even more problematic challenge is the genetic engineering revolution whose extent and consequences are as yet hard to measure and some even describe it as the third major revolution of mankind, after the neolithic revolution and the industrial revolution, since mankind is now able to tamper, not only with nature and the world, but the very living creature itself. Hence, we understand the assaults on the integrity of the human being which have now become possible: so-called genome therapies (on reproductive cells) and the cloning for the purpose of human reproduction open up the possibility of radically transforming the human being in its very genetic inheritance, the very essence which defines him as a human, a unique being which cannot be made similar to any other. Moreover, recent experiments of American researchers on embryos have raised the question of producing uniform human beings again, an issue which is also very much the concern of the Declaration: is it legitimate to use a human being as a means, independent from the ends which it is meant to be there for? The discovery of these new technologies (which, admittedly, have led to great advances in therapies, but also, and indissociably, open up the possibility of new forms of alienation) led to the adoption of a Universal Declaration on the Human Genome and Human Rights in November 1997, under the aegis of Unesco. And this capacity to intervene on the human genome lies, once again, outside the sphere of public power, but rather with researchers, private laboratories, large pharmaceuticals which have the power to instrumentalise and to modify the human being in its very essence.

Hence it becomes obvious that the philosophical framework on which the 1948 Declaration and its theory are based, is necessary but no longer sufficient.

On the basis of these new developments, it is necessary to rethink the definition of what makes a human being, the concept of universality, civil society, the State, and to explore the differences between the protection, respect and guarantee of human rights; but apart from these more philosophical questions, it is obvious that the crucial issue for human rights defenders is that of imputability and responsibility - which is today much rather an irresponsibility, with states all too often invoking these new limitations on their sovereignty as a pretext for justifying their inaction now, just like those actors outside the realm of public influence who virtually enjoy impunity, for they are not accountable to any authority. How can we make these new actors accountable and how can we create a framework in which they can be held responsible (and, if necessary, be prosecuted) for their acts at international level? This question is closely linked to the question of impunity (which is just as topical) and, consequently, to the extension and application of the law at international level. But the question also highlights the emergence of a civil society which is becoming increasingly powerful, organised and influential and which calls for a new form of citizenship, a citizenship which, without being designed to substitute the state in its crucial functions, corresponds to the development of this stratum of intermediate individuality, linked to the development of an increasingly tight-knit, active, integrated economic, social, legal and political network.

The 1948 Declaration constitutes the ethical and legal framework capable of providing modern and appropriate responses to these unprecedented challenges - the non-instrumentalisation of the human being, whose dignity is inviolable, the responsibility of states, the interdependence and indivisibility of human rights, regardless of their character. The response to economic globalisation must be the extension and application of the law to international level. There still remains always greater scope for protecting, strengthening and exercising freedom. True universality is still a concept to be constructed.

Anne-Christine Habbard
Deputy Secretary-General of the FIDH

(From La Lettre n° 12 of March 8)