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Lecture by the President of the Republic, Dr Danilo Türk, at Touro Law School

New York, 24.9.2008  |  speech


The President of the Republic, Dr Danilo Türk, delivered a lecture entitled “Sixty Years of the Universal Declaration of Human Rights: Key Points of the Universal Declaration”:


Sixty Years of the Universal Declaration of Human Rights: Key Points of the Universal Declaration
New York, 24 September 2008


The President of the Republic of Slovenia, Dr Danilo Türk delivers a lecture at Touro Law College on the 60th anniversary of the adoption of the Universal Declaration of Human Rights (FA BOBO)Thank you very much for this welcome and for this lovely introduction. I should say, on behalf of my delegation, that I am very pleased that each of its members was introduced, including Ms. Sanja İtiglic, who is our ambassador to the United Nations and who has helped in organising this event.

I would like to say that as a former law professor I am always pleased if I have an opportunity to "torture" people in the classroom for a while with some of my current thinking on legal issues. Today in this beautiful scholarly environment, it will be my duty and my pleasure to say a few words about human rights at the age of sixty, sixty meaning the 60th anniversary of the Universal Declaration of Human Rights. Of course, human rights is a much older concept but as a part of international system it is fairly recent, so we are talking about sixty years as an anniversary within which we can discuss the question of how far have we progressed with the idea of human rights internationally.

I understand that normally you allow a speaker to speak for about what 30 minutes or so and then there is a period of discussion and I would be of course very interested in your views and your comments and questions if you have any.

This morning I addressed the General assembly of the United Nations and I have put the human rights at the centre of my speech, not because I wanted to speak about a particular sector of United Nations activity, but because I wanted to take an example of transformational energy which human rights have and which was extremely instrumental for the United Nations and for global cooperation. In 1948 when the Universal Declaration of Human Rights was drafted the World was of course a much worse place than it is today. It is not ideal today, but it is better than it was in 1948. You should just think about the fact that this was very soon after the World War II and much of the world was physically destroyed, that in Europe that was the time of Stalinist dictatorship, which affected not only Soviet Union, but a large part of Europe. There were very only few democracies, colonialism was the rule in large parts of Africa and in parts of Asia and thinking about human rights at that time was not a particularly realistic thing in terms of short-term effects. And there were many sceptics at that time. There was a discussion among philosophers organized within UNESCO, who thought that there is not enough conceptual base for a universal approach to human rights, that philosophically the cultures of the world are so different that obviously it is very difficult to establish a common understanding necessary for subsequent legislation. And that sceptical view was very powerful.

Nevertheless, the people who drafted the Universal Declaration on Human Rights took a different approach and I think that that different approach is very important for the United Nations and for global cooperation of today. They took an approach of optimism and activism, they were optimists and activists, they knew that the world will have to change, and one way of doing it is to improve human rights performance and to make human rights real. They took an optimist approach. They were characterized not only by activism, but also by the belief that things will improve. That prevailed and that led to something that transformed the United Nations and many societies around the world.

Subsequent constitution making around the world was deeply effected by the Universal Declaration of Human Rights. Much of the constitutional regulation in all newly independent countries was inspired by the Universal Declaration. Many international treaties were concluded and much happened in terms of implementation of human rights.

So things have improved, but of course things are not ideal and if we look at the discussions today, we can find critical views on where the UN and the world is with human rights. Perhaps I should quote you a speech, that was made yesterday by President George Bush of the United States. I am not sure how many of you have read the speech or seen elements of the speech. You may have noticed that in his speech he spoke about the 21st century which requires a confident and effective UN. So, he made a rather strong pro-multilateral point in his speech. Starting from there, then he said the following: "Where members failed to uphold their obligations, there must be strong action. For example, there should be an immediate review of the human rights council, which has routinely protected violators of human rights". In other words, president Bush has criticized the body of the UN, which is central in the system, when it comes to human rights.

The Human Rights Council is seen as an organ, which as President Bush said, "routinely protected violators of human rights". Obviously, the Human Rights Council consists of member states of the UN who get elected to the Council. Elections and states are essentially political in nature. It is impossible to think of states or elections as something non-political. And as a result of that political reality we get a composition on the Human Rights Council, which is mixed. There are those who are true and serious champions of human rights, there are those countries, which do a lot for human rights at home and internationally, but there are also member states who are less committed to human rights, who have reservations, who sometimes get elected in order to protect themselves against human rights criticism. This is a political reality, which has also to be taken into account. And in the UN there will be a need to further discuss this problems and see how best to reduce the level of political selectivity, which exists in any political process, including in the process of the UN`s intergovernmental bodies dealing with human rights. By reducing selectivity the human rights performance of the UN would further improve.

I have quoted this example to show that the discussion on human rights continues, that different opinions are likely to continue, and that we are likely to expect the diversity of opinion on how good, strong or serious human rights action by the UN is in the future as well. In these discussions, I believe, it will be critical to keep in mind that whatever criticism is levelled these days this should be understood against the background of the entire evolution on human rights since 1948. And if we take a quick look at that evolution, we would see that the progress made is remarkable. This is an incredible progress.

The evolution since 1948 consists essentially of two phases. Phase one was the phase during which the legislative process was the main activity, the adoption of treaties, development of standards in the field of human rights and so forth. There were, as you know, two covenants: one on civil and political rights, the other on economic, social and cultural rights, both adopted in 1966 and both entered into force in 1976. That was one example of treaty making in the UN. Today, there are seven basic treaties and a number of other treaties and a large number of declarations and other legal instruments, which are defining the current human rights standards. That legislatively work is largely done, it has been an important work and it is completed. That work took most of the time of UN bodies between 1948 and early 1970's. In that period of time, in parallel, the question of implementation was put more and more at the centre of UN process. In the phase two the question of implementation is dominating the human rights discussions and the human rights work in the UN.

Let me briefly recall some of the main phases of that process of strengthening of implementation. If one looks at the entire evolution between 1948 and today one can discern four phases in which the process of implementation has developed. And perhaps it is useful to recall that the Universal Declaration of Human Rights itself has an important provision, which says a great deal about the question of how one does make sure that human rights become reality. In Article 28 of the Universal Declaration we find a formula saying that "everyone is entitled to a social and international order in which all of his human rights can be fully realised". In other words, the Universal Declaration itself identified an entitlement of every person to a social order within states and to international order, which would make it possible for human rights to become fully realised. The talk is about full realization and about a long-term process involving a great deal of change and development of social and international order. That was recognized already in 1948.

However, the implementation process that followed in the immediate aftermath was much narrower. In the beginning it was completely dominated by lawyers and it was reduced to questions of treaty-making and treaty-monitoring. The legislative process, which I mentioned before, included the creation of expert bodies, which essentially are part of treaty system. The seven major treaties created expert bodies, which are essentially doing two things: they are considering periodic reports by member states, by states parties to those treaties, and they are also dealing with complaints procedures. In other words, individuals from countries that have ratified those treaties, who have exhausted their internal legal remedies, have access to the bodies established by those treaties. This type of procedure is not uniformly established by all the new treaties and is optional. Nevertheless, it represents a basic feature of the treaty system in the field of human rights today. Development of the treaty system is one way of moving towards realizations of human rights. Realization of human rights depends on treaties themselves, on ratification of those treaties by states, on the implementation done through legal mechanisms and on review and the complaints procedures, which exist at the international level.

That was how the process started. And what I would like to submit today is that these are the kind of things that make a great deal of fascination among lawyers; lawyers like this type of mechanisms. However, we have to recognize that these mechanisms are far from sufficient if one wants to address the entire human rights problem in all its dimensions. It is not enough to have treaties, it is not enough to have periodic reporting, it is not enough to have complaints procedures, much more is needed. Now, what that more is? What is needed? That's a big question to which UN is seeking an answer. And that answer is coming in pieces.

The phase two, which includes that first piece of additional implementation approach, started in mid 1970's. At that time, the UN Commission on Human Rights started to appoint special rapporteurs to deal with some of the most serious violations of human rights in various countries around the world. Actually, the landmark, the watershed was in 1975 when the UN appointed a special repporteur on Chile. As you know there was a coup d' etat in Chie in 1973 as result of which the practises of torture and involuntary disappearances became so prevalent that the UN had to do something. So this is when the special rapporteur was appointed and he reported about the massive violations that were taking place in Chile at that time. That was an important change because it was recognized that there may be situations which are so bad that require a special expert designated to study those violations, to report about them internationally and to work for international action to keep in the process of removal of those violations. The UN discovered that this kind of work requires a lot of time, that is politically very sensitive and very conflictual, and that results are not coming quickly. There were rapporteurs on a number of other countries, including Afghanistan, which was a very important case in 1970's and 1980's. There were different other procedures to deal with the question of disappearances in Argentina, the consequences of civil war in Guatemala and in other places.

In addition to that, there were thematic procedures that were established on issues such as enforcement of involuntary disappearances, on independence of the judiciary and so forth. In that second phase, in addition to what had already existed, in terms of treaty-monitoring, there were additional special procedures which started to emerge.

The third phase started in 1993 when the UN appointed the High Commissioner on Human Rights. The idea of the High Commissioner on Human Rights was not new at the time. It has been around for a very long time, and in 1993, soon after the Cold War the international political conditions allowed a decision to have such an institution in the UN system and to have a person appointed for that job. And as a result of the appointment of the High Commissioner for Human Rights there were various new mechanisms established.

I would like to point out especially one type of activity - the UN field offices on human rights, which started with the first High Commissioner, Mr. Jose Alaya-Lasso, who was appointed in 1994 and who convinced the government of Colombia to accept the idea of UN human rights office in Bogota - an office that would follow all the aspects of human rights problems in the country. Colombia has had military confrontations for a very long time with various guerrillas groups, and as results of that there have been human rights violations of different kinds. The legislation did not always take care of human rights and there were other reasons why an office like this was necessary. Of course, to convince a sovereign government to accept an international institution on its territory to look into human rights situation in that country is a major achievement. Sometimes these types of achievement gets forgotten or underestimated, but I think it is important to give credit to Jose Alaya-Lasso, who convinced the government of Colombia to accept that office and to engage with the UN in very detailed discussion on both, violations of human rights and the need to improve the legal system of the country. That office still exists and it has done a lot of good work. It has often been in very serious conflict with the government, but somehow it was possible to maintain that office and to maintain the dialogue and improve the situation to some extent. This is an example of phase three.

Phase four is actually much more recent. That is the phase, which was started in 2005 with the creation of Human Rights Council. Let us recall, in passing, that the Human Rights Council is the body criticized by president Bush. The Council came into being in 2005 as a result of an expectation that the UN needs a new organ, which would be central in the UN system to deal with human rights, and that would essentially perform two sets of tasks. It would conduct a universal periodic review, it would look into human rights situation in every country around the world. That review should be universal and periodic and should be organized on the basis of the principle that reviewers are reviewed first. In other words, countries that are sitting on the Human Rights Council would be reviewed first and then others would follow. And that review would generate a discussion on human rights situations in all member states of UN. That was felt would be helpful to reduce or, later, even remove, the degree of selectivity, which has been prevailing in the discussions on the human rights in different countries around world.

The second aspect of the mandate was to establish appropriate or to continue, streamline and develop further appropriate special procedures including special rapporteurs on different country situations and thematic rapporteurs as well as other special procedures.

That was the vision motivating the UN in 2204-2005 when this body was established. In about three years after the establishment of this organ we know that the process of implementation continues to be difficult. There has been some progress with regard to the organization of universal periodic review. The methodology of that review is improving, but of course it is far to early to speak about anything definitive, let alone about definitive success.

Here I would like to add something of my own opinion with regard to the expectation concerning the universal periodic review. I think that that type of implementation oriented activity can be successful over time if three conditions are met.

First, the universal periodic review should allow and develop real dialogue with the state under review. This is not always the case, and this is difficult to achieve, because states, s when reviewed, sometimes feel to be under unjust criticism or even attack. This is a real problem and one, which should not be underestimated. In 1990is I was the Ambassador of Slovenia to the UN and I remember the situation when the group of our experts came to present a report on the convention on status of women. We thought that we are doing pretty well, that Slovenia is a nice country, which has decent policies and decent levels of success for which we should be praised. That was our perception. And when we met the experts they had several dozen of questions. They were really probing and criticizing us and the feeling on the side of our government was that that we are exposed to unwarranted criticism. Later on, we looked at those questions once again and we thought they were not too bad, that in fact a dialogue like that was useful. That came as a result of a lot of thinking. And what I'm trying to say is that even if a country has a decent human rights record and is reasonably open to discussion you are likely to have misunderstandings and difficulties in establishing a genuine dialogue between the national government and the UN body. So dialogue is one important consideration for the Human Rights Council and its universal periodic review. It can be achieved only with a lot of patience and over time.

The second requirement to make the universal periodic review useful is to make it possible to deal with specific issues beyond legislation. Very often the states reporting to the UN they reduce their reports to the situation of their laws. They say: "well, we have enacted such and such laws and therefore things are OK". Of course the implementation of those laws has to be brought before the UN body and that requires work. How does one get to a good representative sample of issues that characterizes implementation of a particular law? For the example on media, on freedom of expression and other similar matters. There I think the UN has to do a lot of work to figure out how specific practical aspects would be brought in a systematic fashion before the Human rights council.

And finally the third requirement is continuity. There has to be the universal periodic review has to be organized in a way, which would allow continuous work both in preparation of the reports, the consideration of report itself and subsequently in the process of follow up. UN is not very good in organizing this kind of continuity and I think that universal periodic review is an opportunity to do more. Of course NGO's can be very helpful in that regard, in the preparation of a report and the debate on the report and also subsequently in the follow up.

The other mayor aspect of the Human Rights Council's work are special procedures. There are at present nine country mandates which were renewed or newly established by the Human Rights Council in the last three years in: Burundi, Cambodia, Democratic People's Republic of Korea, Haiti, Liberia, Myanmar, Somalia, the Sudan and Palestine. And there are 26 thematic mandates which are covering a variety of issues ranging from human rights defenders, disappearances, questions of arbitrary executions and so forth. So there is a large number of thematic mandates constituting special procedures, which allow rapporteurs to open up any question of a serious violations of human rights anywhere in the world if it falls within the substantive mandate of the rapporteur. For the example, Manfred Nowak, the special rapporteur on torture made himself extremely well known international personality when he visited the prisons in Brazil and in other places, or when he criticized certain practices that affected the situation in Iraq in the recent years. Torture is a problem globally and obviously it's very meaningful for the UN to have a special rapporteur on that and to look into problems anywhere in the world.

Thematic special procedures are continued to be important. It's very good that they were not reduced, that they continued as part of the UN system and that they are conducted under the auspices of the Human Rights Councils.

In addition to that, what makes the current evolution of Human Rights Council meaningful are the field offices. I mentioned the beginnings of the field offices practice in 1990s. Today there are a few more, all-together eleven county offices that were established under the authority of UN. Here, sometimes one comes to interesting situations.

I would like to mention one specific example on which I worked as a UN official, specifically in the period between of 2002 and 2005: the UN human rights field office in Nepal. That example is interesting in my opinion because it was very well known that Nepal was in a state of a civil war for many years. The Maoist insurgency was widespread, it resulted in massive violence, the government's response to that was brutal. And the situation as a whole required international attention. Of course political circumstances of Nepal are such, that any kind of international political involvement in the county is difficult. Not only because of domestic issues. Some of them were fundamental: Nepal was a kingdom and there was a strong political current in the country to move constitutionally from the stage of kingdom to a republic. This kind of change is something that obviously belongs to the decision making of the people concerned. It is very difficult for international institutions to get involved in this sort of questions. But even more importantly, Nepal is sandwiched between two great powers of Asia, between India and China and it makes it very difficult for any international body to start with initiatives which are political in nature. So the political part of the UN could not do very much regarding that situation, although it was clear that if it was allowed to continue that may lead to a humanitarian disaster and political complications which would end up on the agenda of the Security Council.

At the same time it became possible for the High Commissioner for human rights to get involved in Nepal. Nobody could quite explain why that happened, but for some reason, the government of Nepal, the government of 2003/2004 accepted that human rights represent an objective platform upon which it can expect advice and cooperation on issues involving constitutional change. That happened, nobody could say with certainty why that choice was made, but the government of Nepal made that choice and the High Commissioner for Human Rights established an office with the specialists on constitutional issues and specialists on the human rights issues of different kinds. That office started to work with the government and eventually assisted in the process of change in constitution and other political matters, which now have produced a new government and a new kind of hope for Nepal.

I'm not suggesting that situation is resolved now but certainly it is better than it was in the period when the UN was looking for ways in which it would help. As Assistant Secretary-General for Political Affairs at the time I could test the limits of political efforts in the context of preventive diplomacy. But there are various ways in which UN can get involved in matters, which are essentially within domestic jurisdiction of a national state. Sometimes this can be done - and is welcome - on the basis of electoral assistance. Electoral assistance is something that has many technical aspects, some of which UN can do perfectly well. On other occasions international assistance requires good offices, through very discrete work of the Secretary General of the UN. Finally, there are cases like Nepal where human rights represents an opening upon which UN involvement can be proposed and which than helps in changing things for the better.

This example tells us that the picture is complex and that there is hope, there is progress and that we should use the spirit of the drafters of Universal Declaration of Human Rights, the spirit of optimism and activism and understand the current situation on human rights as calling for further international action. UN is obviously not a perfect instrument, but it has to develop serious practices witch are meaningful, witch are helpful and which produce change over a period of time.

Obviously, there are many things that remain open. I should mention in this context, the concept of responsibility to protect which is something you are familiar with. The idea of sufficiently early international involvement in protection of people against a treat of massive violations of human rights or genocide is an old one. This concept was developed in the UN and adopted in the formal statement by the summit of the occasional of the 60th anniversary of the organization in 2005, but has not been given practical application as yet. The closest example to what could be done was the effort of the former secretary general of the United Nations Kofi Annan, who had, as you know, finished his two terms and retired from the United Nations in 2006, and was involved in the first months of 2008 in a situation in Kenya, where he intervened in a very discrete diplomatic operation that eventually brought about the constitutional arrangement for power sharing. That has stabilized the situation in Kenya, at least for the time being. That situation carried with it seeds of possible genocide. The fact that this problem was addressed affectively with diplomatic means should be source of hope for those who believe, those of us who believe that international action in the field of human rights is meaningful and can be effective.

Of course if you wish to discuss these further in terms of how that was done in case of Kenya I will be happy to do it in the questions of the answer period. By way of conclusion, I wish to say, that there is at least one example which shows that responsibility to protect is a meaningful concept which can be develop further and can be given practical application.

Finally, I would like to say that the agenda of implementation of human rights is an unfinished agenda. If one compares the situation today with the wording of the universal declaration of 60 years ago, one can see that progress was made, but we are nowhere near to the ideal of universal realization of human rights, which the Declaration says requires. We are not yet near the establishment of the social and international order in which human rights can be fully realized. Such an order does not exist as yet. We are moving toward such an order slowly, incrementally, with small steps, with trial and error, but we are moving in a right direction and I remain optimistic.

Thank you very much.
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