INTRODUCTION

• National Experiences
• The implementation of human rights through national constitutions, courts, commissions and other institutions
• International Covenant on Civil and Political Rights in China
• Human rights in the implementation of peace agreements: The example of Bosnia
• Conclusion: Is the Declaration rhetoric or reality within Member States?

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INTRODUCTION

On December 10, 1948, the Universal Declaration of Human Rights (UDHR) became the first comprehensive international agreement to articulate the fundamental and inalienable rights of all human beings. The UDHR — which covers civil, political, economic, social and cultural rights — represents the basic constitutional platform of the human rights movement. That movement is based not only on human rights norms, but also on the national and international institutions in which the norms are imbedded. The United Nations is the primary example of an institution which has provided both a forum and a spur for the development of the universal human rights movement. The UDHR and subsequent instruments of the universal human rights system were drafted within organs of the United Nations and adopted by its General Assembly. Among those instruments are numerous international treaties, which, after being ratified by governments, create legally binding obligations. The human rights movement is also based on the individual, group and organizational actors who seek the full realization of these norms through the functioning of these institutions. During its first half century, a wide range of human rights defenders and practitioners have prompted and guided the development of the human rights movement nationally and internationally.

The fiftieth anniversary of the UDHR provided an ideal opportunity for members of the United Nations to reflect on the principles, institutions and actors which have shaped the human rights movement and will shape it in the years to come. With that in mind, the the Friedrich Ebert Foundation and United Nations Studies Program of Columbia University convened in Glen Cove, Long Island, a high-level retreat for the delegates to the 53rd General Assembly of the United Nations. Encouraged by Secretary-General Kofi Annan and High Commissioner for Human Rights Mary Robinson, and assisted by the Office of the High Commissioner for Human Rights, the Jacob Blaustein Institute for the Advancement of Human Rights, the Ford Foundation and the United Nations Association of the USA, the organizers brought together a diverse group of participants from governments, non-governmental organizations and international institutions to share their wealth of experiences, observations, and knowledge about human rights.

The objectives of the conference were ambitious. Participants were asked to consider to what extent the Universal Declaration of Human Rights was rhetoric or reality within Member States; identify ways in which international partnerships contribute to building human rights communities; reevaluate the boundaries of non-intervention in light of recent responses by the international community to human rights violations; examine the relationship of human rights to sustainable development; question whether private business interests are compatible with

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human rights interests; and assess the relevance of the proposed declaration of human rights defenders in the context of current and future realities. By thoroughly reviewing the progress made to date and the current global context of the universal human rights movement, the conference yielded essential insights into the future of the movement and what is needed by its proponents to respond effectively to the forces which have already begun to shape the next century.

National Experiences

The full realization of human rights depends first and foremost on the laws and policy of member states. The human rights treaties which governments ratify transform the standards of achievement of the Universal Declaration of Human Rights into obligations of the state. States are required under international law to bring their domestic law into conformity with their contracted international commitments. They internalize human rights treaty norms by making international norms part of their pre-existing national legal and political orders, by adapting national law to the international norms, or by adopting entirely new constitutions based on human rights treaty norms. As states are ultimately responsible for protecting human rights, the efficacy of international human rights treaties depends essentially on the status or force given to them within national law. Three types of national experience illustrate the great variety of responses by member states to their human rights obligations: creation in the smallest of countries (Andorra) of national institutions to make international human rights justiciable; ratification of the International Covenant on Civil and Political Rights (ICCPR) by the largest country (the Peoples Republic of China); and the application of special human rights provisions of a framework agreement for peace in a war-torn country (Bosnia and Herzegovina).

The implementation of human rights through national constitutions, courts, commissions and other institutions

As the Secretary-General pointed out above, the UDHR has served as the founding document for all UN human rights instruments, as well as the model for many national constitutions, laws, policies and government practices. Its provisions, many of which have become part of customary international law, have provided reference points for courts, commissions, parliaments, and other institutions inside states which may or may not have ratified any of the multilateral human rights treaties. Governments have looked to the work of the international human rights supervisory bodies for advice on bringing their legal and political systems into conformity with the principles found in the UDHR, illustrating the considerable efficacy of the international legal system.

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Andorra is one state that has chosen to incorporate international treaty norms into its existing national legal system and follow the recommendations of international treaty bodies in implementing its human rights obligations. When it replaced its thirteenth-century constitution in 1974, for example, Andorra sought assistance from the European Court of Human Rights in drafting a new constitution that incorporated principles found in the European Convention for the Protection of Human Rights and Fundamental Freedoms. The government maintains that the strength of international legal instruments and the efficacy of international legal mechanisms strongly influence the degree to which human rights are protected on the national level. While those who suffer human rights violations are often the weakest members of society, their ability to seek redress on the international level is the last resort to break the cycle of their own victimization. Hoping that by knowing their rights Andorrans will be empowered to claim them on the national or international levels, the government requires schools to make human rights education part of their curriculum.

Thailand, another state which has long purported to accept the universality of human rights, has relatively recently begun to demonstrate its commitment to international legal principles in practice. Last year it acceded to the International Covenant on Civil and Political Rights (ICCPR), soon it will accede to the International Covenant on Economic, Social and Cultural Rights (ICESCR), and recently it adopted a national plan of action to guide it as it joins the international community of states who promote and protect human rights. The Thai government views the degree to which human rights are protected on the national level not so much as a function of external factors, such as the strength of the international human rights system; but rather, as a function of internal political, cultural and historical factors. Once an absolutist monarchy, Thailand is now a constitutional monarchy with a consolidated democratic system — meaning that it has regular elections, a relatively free press, a growing civil society, and a general respect for the rule of law. Many Thais see their culture as moderate and consistent with universal human rights norms — features which some attribute to the strength of Buddhism in the country. Thailand is also thought to be more receptive than other South East Asian societies to the international human rights movement — which some in the region view as dominated by western, neo-imperialist values — because it does not have a colonial history. Thailand views itself as ready to take on international human rights commitments, but maintains that each country should do so at its own pace and in its own way.

International Covenant on Civil and Political Rights in China

The People's Republic of China has chosen to honor international treaty norms which are similar to its national legal norms, rather than make international

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norms part of its national legal and political order. This means that the Chinese government looks to national instruments and mechanisms for guidance in making international legal commitments, rather than looking to international instruments and mechanisms for guidance in formulating national law. The Chinese government spent two decades conducting research on its own legal system before signing the ICCPR on October 5, 1998, to commemorate the 50th anniversary of the UDHR and the fifth anniversary of the Vienna Conference on Human Rights. Government legal experts found Chinese law to be compatible with each article of the ICCPR and, in some cases, more protective than the international standard. China has acceded to seventeen human rights conventions in the same manner, including the ICESCR (which it signed last year), the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), the Convention on the Rights of the Child, the Refugee Convention, the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT), and the Convention on the Elimination of All Forms of Racial Discrimination (CERD).

Like some other governments that have been slow to ratify international human rights treaties, China says that its lengthy deliberative process reflects the seriousness with which it takes its international commitments. The government says that China's citizens enjoy an unprecedented level of human rights today not because of external factors, such as the strength of the international human rights system, nor because of gradual political, cultural and historical changes inside the country, but because of the successful 1949 revolution. The state, which according to the Chinese constitution defines and grants the rights of citizens through legislation, has reformed the complex legal system in recent years — adding hundreds of laws and thousands of administrative rules. Since criminal law was introduced in 1979, lawyers have gradually been allowed more time with their clients and 47 legal aid centers have opened nation-wide — changes intended to better protect the rights of citizens. The government acknowledges that China's human rights system is less than perfect and maintains that it is continually working to improve the well-being of its citizens. In reference to its new Hong Kong citizens, the central government of China has informed the Secretary General of the UN that the territory will continue to be a party to those human rights treaties, including the ICCPR, to which it was a party under British rule.

Human rights in the implementation of peace agreements: The example of Bosnia

The peace accords signed at Dayton to end Bosnia's war reflect the desire of those facilitating the process to make human rights the basis of the settlement. The accords provide that the country's new legal system will uphold the highest human

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rights standards. They incorporate broad human rights standards and establish legal structures for their implementation: including a commission to handle property claims by refugees and internally displaced persons; and a commission to handle other human rights claims composed of an Ombudsman's Office and a Human Rights Chamber. These legal institutions, while technically domestic, will function with international assistance for the first five years as Bosnia-Herzegovina undergoes the difficult triple transition from conflict to peace, from a command to a market economy, and from an authoritarian to a democratic form of governance. The success of each of these transitions and their ability to improve human rights conditions will depend on the extent to which the rule of law is credibly established in Bosnia-Herzegovina.

The new Bosnian constitution also includes an impressive number of human rights provisions, commits the state to becoming a party to more than twenty human rights treaties, and makes the European Convention for the Protection of Human Rights and Fundamental Freedoms law directly applicable in the country's courts. It too establishes legal structures for the implementation of human rights norms, including a Supreme Court, a Federal Ombudsman's Office and a Human Rights Court. While the emphasis placed on human rights as a crucial component of the post-conflict peace-building process sets a positive precedent, a number of important lessons can be learned from the unexpected difficulties it has created in Bosnia-Herzegovina. The human rights standards embraced in the accords and the constitution are so broad that detailed plans for their implementation are still needed, and so progressive that they are unlikely to be fully implemented in the immediate future. Moreover, the human rights structures established by the accords and the constitution are well-constructed individually, but they overlap in their jurisdiction.

While the desire to be accepted as part of Europe — as symbolized by membership in regional organizations such as the Council of Europe — motivates all sides in the tripartite Bosnian government to implement the provisions of the Dayton agreement, national authorities tend to give those concerning human rights last priority. This is not only because the human rights provisions are the most difficult and expensive to implement, but because their relative significance is not yet widely understood. Government officials as well as the general public need human rights education if the ambitious commitments made in the accords and the constitution are eventually to be realized rather than remain forever aspirational. National and international efforts to address the war’s legacy of human rights abuses, war crimes, and crimes against humanity have the potential, if widely publicized inside the country, to advance the process of creating a human rights culture in Bosnia-Herzegovina.

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Conclusion: Is the Declaration rhetoric or reality within Member States?

The fact that, as Kofi Annon has said, „human rights are foreign to no culture and native to all nations" — the fact that they are universal — is illustrated by the ability and eagerness of governments to describe their policies, practices and institutions using the rhetoric of human rights. It is true that governments incorporate human rights norms into their laws, participate in international human rights bodies, accede to international human rights treaties, adopt national plans of action, conduct exhaustive studies of their own national laws to locate parallels with international standards, base their constitutions on human rights principles, and create numerous human rights institutions. However, they still fail to implement fully universal human rights standards. The considerable progress made by many governments in the area of human rights should be appreciated, but should not divert attention away from the considerable progress yet to be made by all of them. Views diverge regarding the extent to which the ability of a government to protect and promote the universal human rights of its citizens is dependent upon cultural, historical, economic, geographic and demographic variables. Nevertheless, it is widely agreed that democratic, participatory governments based on the rule of law are the most successful at promoting and protecting human rights.

Different governments may confront different obstacles in guaranteeing their citizens the full enjoyment of their human rights and thus utilize different methods for advancing toward that goal; but, the goal itself should be the same for all governments. More and better benchmarks are needed to measure government progress. Demonstrating good faith in reporting to human rights bodies, complying with the recommendations of those bodies, and welcoming human rights emissaries were seen as good, but inadequate, ways for governments to show their commitment to human rights standards. Exhibiting receptivity toward and respect for national and international civil society, particularly human rights defenders, is one more way governments illustrate their willingness to comply with their international obligations to protect and promote human rights. Many maintain that non-traditional methods for encouraging compliance — such as conditioning development assistance and membership in regional organizations on human rights performance— are important and effective tools that should be utilized more often in the future. The strong correlation between a well-developed national civil society and a government's commitment to human rights justifies the conclusion that one of the most effective ways for inter-governmental and international non-governmental organizations to assist governments in honoring their human rights commitments is to encourage and form partnerships with national civil society organizations.