Human Rights: why we need both the Universal Declaration and the European Convention

The degree and wide-ranging scope of human creativity shown in the immediate post-war years can be too easily overlooked. Industrial capacity could now turn towards satisfying the demands of development, not destruction. Along with this, the single-minded intensity of war tribunals in Nuremburg and Tokyo led to new protocols for the exercise of international justice. And new mechanisms were devised to promote peace, encourage development and guarantee human security, essential to underpin and define the new world order.

These new mechanisms included the identification of those human rights relevant and accessible to all. At that time, there came into being two historic instruments defining human rights, the UN’s Universal Declaration (UDHR) and the Council of Europe’s Convention (ECHR). Both are landmark examples of joint effort, wrought in the face of cultural and ideological challenge. Both should be considered firmly established, immovable statements so why are both under attack as seldom before?

Each had a course to follow. The UN Human Rights Commission, led by Eleanor Roosevelt, was tasked to ‘draft an International Declaration, a draft covenant, and provisions for their implementation’. The Commission identified thirty Rights, roughly identified in three bundles:  fundamental; civil and political; and economic, cultural and social.

Differences of opinion, ideological and cultural, continually challenged the Commission but on 10 December 1948, the UN General Assembly adopted the UDHR although the Soviet bloc, Saudi Arabia and South Africa abstained. Had the vote been deferred until the following year, as powerfully advocated by the Soviet delegate, many feel no agreement would have been reached as by then, the Soviet Union had detonated its first atomic bomb and Mao Tse Tung had entered the Chinese capital, all changing the global geopolitical landscape. The Declaration’s two supporting covenants, on Civil and Political Rights and on Economic, Cultural and Social Rights, both legally binding instruments, came into force in 1976. And to guarantee a more pro-active advocacy, the appointment of the first UN High Commissioner for Human Rights was confirmed in 1994. The current High Commissioner, Michelle Bachelet, declining to seek a second term, has prompted the search for her successor, due to take over in September 2022.

The UDHR, the most translated document in history, is also the world’s most widely recognised statement of intergovernmental intent, after the Preamble to the UN Charter. One might ask how well today’s 193 UN Member States would manage in seeking to agree on a similarly powerful statement? Now approaching its 75th anniversary, we cannot fail to recognise the UDHR’s importance, showing what can be achieved when nations work together for common good. It still strongly binds us together through its two covenants and the exercise of the role of the High Commissioner.  

Working at the same time as the UN Human Rights Commission, politicians, academics and civil society set about drafting a Convention for Europe with their mission driven by the influence of Stalinism in central and eastern Europe. The newly formed Council of Europe endorsed the Convention in 1953 and to ensure member nations complied with it, a Court of Human Rights located in Strasbourg came into being in 1959.

Today, the Council of Europe numbers forty-six member states, of whom only two have left it. Greece pulled out in 1969, to avoid expulsion, after a military coup but re-joined five years later. Earlier this year, Russia pulled out following its invasion of Ukraine, which would have seen it expelled anyway.

It is surely beyond comprehension that the UK might consider joining Russia in leaving the Council of Europe, as would necessarily follow if it disregarded the authority of the ECHR. However, the UK government’s proposals to drive through the UK-Rwanda Asylum Partnership Agreement (APA) have led some of its ideologues to argue that the ECHR can be ditched without loss.

This thinking is remarkably narrow-minded. After all, the UK has no record of being serially challenged by the ECHR. In 2021, the ECHR dealt with 215 applications from the UK, 205 of which were declared inadmissible. Only one violated the European Convention. This record should be put into the perspective of the Court’s enormous workload. In 2021, there were 72,000 pending applications including those targeting Russia (25%), Turkey (23%) and Ukraine (15%), collectively totalling two thirds of all applications even though only a tiny proportion of these reach legal process.

The APA is the latest in a line of cooperative asylum arrangements that seek to shift asylum responsibility from destination states in the Global North (pace Australia, Denmark) to countries in the developing world. However, opponents to the APA claim it will fail the test of Article 3 of the ECHR which states:

‘No one shall be subjected to torture or to inhuman or degrading treatment or punishment’

There are no exceptions or limitations on this right which, apart from torture, covers cases of severe police violence and poor conditions in detention. So, does the APA pass the test of Article 3 by ensuring that those transported to Rwanda will not be subjected to “inhuman and degrading” treatment? The Home Office argues that the APA is compliant, but it is less clear on whether it is also compliant with Article 26 of the Refugee Convention. This refers to those people who “cross the border illegally” and which makes it clear that people who cross a border to seek asylum are never illegal, even if they use smugglers.

Further uncertainty on the UK’s position relates to the APA’s provision for an independent Monitoring Committee which will have wide access to both individuals and facilities. However, its powers are not clear. For instance, it cannot demand the return of individuals to the UK or suspend transfers to Rwanda where breaches of international law are uncovered. Further, it has no mechanism to report its findings. It was this failure that led to the ECHR reaching its interim judgement in June this year in favour of the appellant due to be flown to Rwanda. (See Asylum seekers’ appeal to the European Court of Human Rights: clearing the fog of disinformation, Perspectives June 18). Even if the Judicial Review due in September considers this to be legally acceptable, surely it cannot be deemed as morally so. The UK cannot disclaim responsibility for those sent to Rwanda if the UK courts later decide against it.  

In summary, we need the ECHR as much as we need the UDHR. The UK should be proud of the leading role it played in the creation of both, and it should be the fiercest of those defending them.

David Wardrop July 2022

Sleep-walking into ‘Cold War Mark 2′

Cameron Duodu

This article was written on 15 April 2022 but we failed to publish it on our blog. Now three months has passed and the UN-brokered deal on the export of foodstuffs from Ukraine has been announced, we will invite Cameron Duodu to comment on how opinions in Africa have been influenced.

The escalation of the Ukrainian war that will be the inevitable consequence of the sinking of the Russian warship Moskva sends shivers down my spine.

Of course, Russia has not admitted that the ship was sunk by Ukrainian missiles. But one doesn’t need to be a military analyst to conclude that with the increased provision of arms to Ukraine by NATO, it’s more than likely that the warship was, indeed, the victim of a deadly Ukrainian pre-emptive strike.

Russia will no doubt seek to retaliate in a spectacular manner. For although the Russian people are denied a truthful account of how the Ukrainians have been courageously fighting back, many Russians will be intelligent enough to conclude that a warship that is supposed to be the “flagship” of a major Russian naval formation, does not just “sink” because of “a fire accident on board” (as the Russian military authorities have characterised the mishap.)

Simultaneously, the Ukrainians will be pressurising NATO – especially the US – to “give us the weapons and we shall do the job!” (as the UK war leader, Winston Churchill, put it to President Roosevelt during the darkest days of the Second World War, when Britain was suffering from a devastating blitzkrieg that was similar to the ceaseless pounding that Ukraine is currently receiving at the hands of Russian tanks and artillery.

The clear danger is that “hawks” in both the Russian and Ukrainian war machines will – whether with disapproval from the higher leadership or not – stage military offensives that will take the conflict to a more dangerous level.

The most obvious path for any “hawks” anxious to give the enemy “a bloody nose”, will be to shoot down a plane – preferably one carrying civilian passengers. The fallout from such an air attack would, inevitably, be an air confrontation between Russia and NATO.

Each side knows that such a confrontation will create a situation that would be just “one minute to midnight”, “midnight” being the deployment, initially, of “tactical” nuclear weapons, which could easily trigger an all-out nuclear holocaust.

The question the world should be asking the two sides is this: what gain would such a deadly outbreak of wart bring to either side? Already, enough devastation has been caused in Ukraine as must convince Ukrainian President Zelensky that he might have badly miscalculated the cost of loudly proclaiming Ukraine’s intention to join NATO.

Of what use will Ukraine be to himself and his followers if it wins NATO membership for a country half of whose dwelling places and factories have been burnt to ashes? Indeed, of what use would a Ukraine with a “moon-like” terrain be to NATO? Yes, bravery and tenacity of purpose are worthy virtues in a nation’s leadership. But so is political cunning that does not go to the extreme length of pitting national survival itself against the achievement of a desired political goal, however worthy such a goal might be.

Russia too would be wise to pull back from the brink. The course of the war against Ukraine, so far, has demonstrated that the Russian military machine might have ignored its “clay feet” in certain areas of operation, when it moved, head-first into Ukraine. Trying to regain national pride by committing atrocities (whilst seeking to punish Ukraine for showing up Russian military weaknesses) may well be a case of using good money to chase after bad.

Certainly, by any calculation, Russian gains from a victory over Ukraine cannot make up for the economic sanctions – ever being ramped up – that the Western nations are imposing on Russia. The disquiet over relations with Russia that non-NATO Western nations are currently displaying, should tell Russia that there could be an oversize political price to pay in Europe, for the Ukrainian misadventure.

The fact that both Russia and Ukraine are victims of military and political weaknesses they did not anticipate before the outbreak of war between them, gives hope that if world leaders who seriously treasure the peace which the world has enjoyed since the end of “Cold War Mark One” were to step forward and jointly put unbearable pressure on the two sides, the war might end with a negotiated settlement that saves the faces of both countries.

At the moment, though, it is difficult to identify world leaders who could summon the moral authority to knock heads together in a bid to end this meaningless war. But with the United Nations General Assembly divided and the Security Council crippled – as ever – by the veto system, it is difficult to see who could step forward and fulfil a role which, if cleverly executed, could bring new hope to the world – especially to the young citizens of the world, to whom the sight of so much destruction caused by armed warfare, must bring great depression.

The Ghanaian journalist Cameron Duodu has followed African and international affairs since the late 1950s. He is a regular contributor to the UK and Ghanaian media, and his writings are widely syndicated.