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