The Advance of Human Rights

by Fred Edwords

The Humanist magazine, November / December 1998

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Human rights theory as we know it today evolved out of the intellectual and religious ferment of Renaissance humanism and the Protestant Reformation to flourish and spread throughout the Enlightenment. And one of the first genuine juridical declarations of human rights to emerge from this process was England's Petition of Right, issued by Parliament in 1628. It outlaws forced quartering of soldiers, trial by martial law, and mandatory loans to the king. It also confirms the right to due process. Later, in 1679, Parliament passed the Habeas Corpus Act, which protects British subjects from being jailed indefinitely without charges or bail, imprisoned twice for the same offense, and forcibly transported to prisons outside the country.

This was followed by the Bill of Rights, which Parliament passed in 1689, a document that officially rendered England a constitutional monarchy where Parliament, not the king, made the laws, levied the taxes, and maintained the army. This document confirms that all subjects have the right to petition the king, all Protestants the right to bear arms, and all members of Parliament the right to freedom of speech during debate. It includes provisions against excessive bail and fines, fines and forfeitures imposed prior to conviction of a crime, and cruel and unusual punishment.

In the next century, with the flourishing of rationalism, came three major human rights documents. The first was the Virginia Declaration of Rights. Written by George Mason, it was adopted by the Virginia Constitutional Convention on June 12, 1176, and later drawn upon for the beginning paragraphs of the Declaration of Independence. It opens by proclaiming the existence of natural rights, including the right to "the enjoyment of life and liberty, with the means of acquiring and possessing property, and pursuing and obtaining happiness and safety." It then states that all power is derived from the people and all government instituted for the people. It protects against unwarranted searches and seizures and guarantees the right to face one's accusers in a speedy jury trial, the right to avoid self-incrimination, and freedom from excessive bail, excessive fines, and cruel and unusual punish meet. It also declares that "freedom of the press is one of the great bulwarks of liberty" and that "all men are equally entitled to the free exercise of religion, according to the dictates of conscience." (This latter concept was developed further by the passage in 1786 of Thomas Jefferson's Virginia Statute of Religious Freedom.)

The second major human rights document of the eighteenth century was the Declaration of the Rights of Man and Citizen, drafted by Emmanuel Joseph Sieyes and adopted by the Constituent Assembly of France on August 26, 1789. It opens with the claim that (in the translation by Thomas Paine) "ignorance, neglect, or contempt of human rights are the sole causes of public misfortunes, and corruptions of government" J and that the basic rights of "liberty, property, security, and resistance of oppression" are "natural, imprescriptible, and unalienable" as well as "sacred." It then goes on to state that, because the law is "an expression of the will of the community," all citizens have a right to participate in its formation. The specific rights enumerated in its seventeen clauses include the freedom of opinion (particularly religious opinion), speech, writing, and publishing, as well as the liberty to do "whatever does not injure another" and isn't "hurtful to society." Each person is "presumed innocent till he has been convicted" and, hence, when being captured and detained by legal authorities, should experience no more suffering "than is necessary to secure his person."

On September 25, 1789, Congress passed the first ten amendments to the Constitution of the United States-commonly called the Bill of Rights-and Virginia's ratification on December 15, 1791, made them the law of the land. These amendments proclaim freedom of religion, speech, the press, and assembly; the right to petition the government, bear arms, receive due process of law, and confront witnesses in a speedy, public jury trial; and freedom from forced quartering of soldiers in peace time, unreasonable searches and seizures, double jeopardy, self-incrimination, excessive bail and fines, and cruel and unusual punishment. In their completeness, these amendments constitute a definitive compilation of the best judicial thinking on individual human rights from the preceding two hundred years.

But the revolution wasn't over. So far, the advocacy of human rights had been limited largely to civil and political rights. That began to change with the so-called Jacobin Constitution of France which, in 1793, advanced social and economic rights, declaring that "society owes subsistence to its unfortunate citizens, either by giving them work or assuring them the means to exist if they are incapable of work."

The idea didn't immediately take off. But with the gradual spread of democratic ideals throughout the nineteenth century, the abolition of slavery and the advancement of the civil and political rights of women and children, and the rise of socialism, the groundwork was laid for a dramatic shift. And that shift came as a result of the rapid social, political, and economic transformation of Europe during and after World War 1. In many of the national constitutions drawn up since 1915, there are provisions for free education, employment, unemployment insurance, and sickness and old-age benefits.

Such progress, however, hadn't been globalized. It took the trauma of World War II -with the widespread awareness of the massive and horrific human rights violations carried out by the Nazis-to give urgency to the creation of not only a workable international council of nations but an international human rights standard. In a January 1941 message to Congress, U.S. President Franklin D. Roosevelt set forth his doctrine of the "four freedoms": freedom of speech, freedom of worship, freedom from want, and freedom from fear-principles that guided his efforts at the numerous conferences with world leaders held throughout the war. And British Prime Minister Winston Churchill promised that, "when this struggle ends with the enthronement of human rights, racial persecution will be ended."

At the founding conference of the United Nations, held in San Francisco from April 25 to June 26, 1945, representatives from Cuba, Mexico, and Panama proposed that a Declaration of Rights and Duties of Nations and a Declaration of the Essential Rights of Man be developed and adopted. No agreement ensued, however, but the adopted Charter of the United Nations includes Article 68, which charges the Economic and Social Council with the task of establishing a commission "for the promotion of human rights."

The Commission on Human Rights was established and held its first meeting in May 1946, then set to work on January 27, 1947, electing Eleanor Roosevelt as chair. The commission studied the many human rights efforts that had come before, including what leading philosophers and jurists had written; what various labor, law, religious, and world government organizations had prepared; and the drafts submitted by the governments of Chile, Cuba, and Panama, as well as that of the Ninth International Conference of American States. Through all of this, it became clear that an International Bill of Rights was needed, comprised of three elements: a broad declaration of human rights to establish a common moral standard of achievement; a more limited convention or treaty to legally bind governments to conformity with specific terms; and a machinery of enforcement.

The first of these came to fruition fifty years ago. After article-by-article discussion and debate in the U.N. General Assembly and the preparation of a final text, the Universal Declaration of Human Rights was adopted on December 10, 1948. Forty-eight countries voted in favor of the declaration, none voted against, and eight abstained. Without setting forth any claim that rights are derived either from nature or deity, the thirty articles of the declaration directly lay out a common set of standards.

Article 1 begins with the assertion that "all human beings are born free and equal in dignity and rights." The document then proclaims the right to life, liberty, security, an adequate standard of living, medical care, education, privacy, property (including "protection of the moral and material interests resulting from any scientific, literary, or artistic production" of which one is the author), thought, conscience, opinion, religion, expression, peaceful assembly and association, leisure, social security, and equal personhood before the law. It also declares

the right to move one's residence, travel, secure asylum from persecution, have or change a nationality, marry, take part in government, secure government benefits, work, join a trade union, receive a fair trial, and "participate in the cultural life of the community." And it states that no one may be held in slavery or servitude, "subjected to torture or to cruel, inhuman or degrading treatment or punishment," or arbitrarily arrested or exiled.

The second element of the International Bill of Rights- specific agreements that are binding on the ratifying countries-came into existence as four documents: the International

Covenant on Economic, Social, and Cultural Rights; the International Covenant on Civil and Political Rights; and two optional protocols to the latter. The two covenants and the first protocol were adopted by the U.N. General Assembly on December 16, 1966. The second protocol was adopted December 15, 1989.

Finally, the third element of the International Bill of Rights-a machinery of enforcement-came to be through the establishment in 1966 of the Human Rights Committee and the subsequent establishment in 1985 of the Committee on Economic, Social, and Cultural Rights.

One can get a sense of how widespread the global commitment to human rights is by noting how many countries have indicated their willingness to be bound by the covenants and, therefore, policed by the committees. The International Covenant on Economic, Social, and Cultural Rights has been ratified by 137 nations and signed, pending ratification, by sixty-one others. The International Covenant on Civil and Political Rights has been ratified by 140 nations and signed by fifty-nine others. The first optional protocol, which expands the power of the Human Rights Committee, has been ratified by ninety-two countries and signed by twenty-six. The second optional protocol, which requires all ratifying countries to abolish the death penalty, has been ratified by thirty-three countries and signed by twenty-one. To compare two countries in this regard: Canada has ratified both covenants as well as the first protocol, while the United States has merely signed both covenants. Neither country has ratified or signed the second protocol.

There is, however, more international human rights activity beyond this. In the half century since its adoption, the Universal Declaration of Human Rights has spawned a host of particularized human rights documents, resolutions, and treaties. These include the Convention Concerning Freedom of Association and Protection of the Right to Organize; the U.N. Convention on the Elimination of All Forms of Racial Discrimination; the U.N. Convention on the Elimination of All Forms of Discrimination Against Women; the U.N. Convention Against Torture; and the Convention on the Rights of the Child.

Furthermore, a number of intergovernmental and regional bodies have been created to study and promote these rights. These bodies include the European Court and Commission on Human Rights, the Inter-American Court and Commission on Human Rights, and the African Commission of Human and Peoples' Rights. But perhaps of greater significance is the fact that explicit references to the Universal Declaration of Human Rights also appear in many different national constitutions adopted in the latter half of the twentieth century.

Human rights have come a long way in the last four hundred years-not only in terms of development but also in proliferation. What was once a philosophical legal concept applied in but a few small parts of the globe to a chosen few has grown into a worldwide phenomenon affecting billions of people. And while we realize that much remains to be done, the expanding rate of human rights activity in our time can only be considered a welcome trend.

Fred Edwords is editor of the Humanist and executive director of the American Humanist Association.

Human Rights, Justice, Reform