[A paper presented as an invited address to the Human Rights Fiftieth Anniversary Celebration, held by the Canadian Human Rights Commission, the United Nations Association, and Kla-How-Ya, at the Vancouver Aboriginal Friendship Centre, 8 December 1997.]
Thank you Elders, Chiefs, conference organizers, and guests, for allowing me the honour of speaking to you today. The title I've given my talk is Fifty Years of Human Rights: The Universal Declaration on Human Rights and its Legacy. My role, as I understand it, is to sketch some of the background to some of the other issues and documents that will be discussed today. And the place to start is with the Universal Declaration.
It is understatement to say that the experience of World War II was monolithic in its impact, not only because of the specific outcomes that befell the various protagonists and antagonists, but for the psychological and social psychological dynamics it triggered. However atrocious the work of the Nazis may have been, it is useful to recall that their control over Germany did not come about as the result of any revolutionary coup. They were a duly elected government, duly elected officers of a nation state.
And yet the Nazis' aspirations were so perverse, and their means of achieving them so hideous, that two questions lingered after the war officially ended: "How could it have happened?"; and "How can we ensure it doesn't happen again?". The question of how it happened has been the subject of scores of analyses that continue to this day. The issue of how to ensure it would never happen again has also been approached in many ways over the years, but one of the first was the effort by the then-new United Nations to proclaim a basic, universal, set of human rights, i.e., rights that are universal to us all by virtue of being human.
Now, nothing that happens at the United Nations happens quickly, so I take it as an indication of the high priority that was attached to the project that a mere three years after the War ended - December, 1948 - the Universal Declaration of Human Rights was passed by the General Assembly of the United Nations. The Universal Declaration has itself been the subject of much more commentary than I can summarize here, by many people more brilliant than I. There also have been many more specific developments that could be construed as "amendments" to the Universal Declaration - such as the Covenants on Genocide; Economic, Social and Cultural Rights; and Civil and Political Rights. I'd prefer not to talk about these, or my time here will be nothing more than an inventory of human rights documents. Instead, I would like to use my time to talk in more general terms about what the Universal Declaration has meant. In a 15-minute talk, I figure I have time to make about two points - one that speaks to the strengths of the Universal Declaration, and another that speaks to its weaknesses.
The first point requires me to draw your attention to the fact that the Universal Declaration is not in any sense "law," as something like Canada's Criminal Code or Indian Act are, with all the legislative teeth that goes with them. [see footnote 1] It is simply a declaration, and adherence to its principles are voluntary. And yet, in its legal innocence, the Universal Declaration continues to be one of the best known, most frequently cited, and most revered documents that the United Nations has ever produced. It is an assertion of a set of standards that the people of the world can have a right to demand, and to which they can point when the behaviour of their nation state governments falls below the standard called for in the Universal Declaration.
It is also a document that, despite its non-binding content, is cited in court decisions, has shaped the form of subsequent treaties, has been included in the Constitutions of new nation states, and has been used as a measure of the performance of nation state governments (e.g., in the manner that Amnesty International uses the Universal Declaration to define and locate human rights abuses). Stated simply, the declaration has come to be a part of the global conscience, thanks to no other devices than that it had the moral authority to strike a resonant chord with those citizens and governments around the world who care about human rights, and its continued use as a standard over time.
But if the greatest strengths of the Universal Declaration are in the ways it has come to permeate the human spirit, then its major weaknesses are in the limitations it has embodied in doing so. Such weaknesses, I believe, are inherent to any such document. In the interests of making a statement of principle, and in gaining some protection, concepts are laid out and defined, categories are created, and the understandings that underlie a document are cast in stone. But such documents are created in a context, and the context may or may not stand the test of time. As the context changes, the document becomes constraining, and we become aware of the limited mindset that underlay its existence.
In the case of the Universal Declaration, some have argued that it is no accident the Universal Declaration came immediately after WWII, but before the Cold War. It was a time of war victory-afterglow, especially for Britain, France, Canada and the United States and they put their then-dominant ideology on the line, at a time of moral zeal and self-righteous confidence, unfettered by any real opposition. [see footnote 2} And, as is now commonly held, it is clear that the understandings that underlay the Universal Declaration was the understanding of rights that underlay the Western world's liberal democratic traditions where all the world's glory, and all the world's infamy, occur in a nation state context, so that the main legal objects to be considered are the nation state and the individual citizen, and the only rights to be considered are those that individuals hold within that nation state context. [see footnote 3}.
Of course, nation states are not the only entities that make up the world. Indeed, yet another way to look at the globe is in terms of the peoples that occupy it, and whose spatial existence as peoples may or may not be linked to the boundaries of nation states. In the case of the world's Indigenous peoples, it is more often than not the case that they do not. Locally, for example, we need look no further than the Coast Salish peoples on whose traditional territory I now stand, whose traditional dominion extends from British Columbia to northern California, i.e., involving two nation state governments as well as at least four provincial and state governments. The converse is also true, not only in Canada, but elsewhere as well - where many Indigenous peoples, each with their own traditions and priorities, all fall under the jurisdictional umbrella of one nation state government. How well does the Universal Declaration reflect those situations - where a people are divided, or grouped, by relatively arbitrary nation state boundaries that affect them not only as people, but also as peoples? The answer is "Not very well at all."
It is noteworthy that at the time the Universal Declaration was proclaimed (1948), there were few who were casting their eyes on the plight of Indigenous peoples. Even in so ostensibly progressive a country as Canada, the more hugely oppressive features of the Indian Act - where it was illegal to hire a lawyer, or even to raise money to hire a lawyer, to assert Aboriginal jurisdictional rights; and where the Potlatch and other Aboriginal practices were illegal, for example - were not removed until the 1950s, i.e., years after the Universal Declaration was proclaimed.
It was not until the Cold War that some of the socialist countries started to discuss notions of group rights, or collective rights, as rights that exist over and above individual rights. They saw that when the Universal Declaration was used to champion human rights, it championed individual rights over the rights of the collective, and many had difficulties with the Universal Declaration's lack of balance in that regard. This, of course, brings us to the huge debate the Universal Declaration inspired over the universality or cultural relativity of conceptions of human rights, which I know better than to start addressing here, in the limited time I have available. Suffice it to say that I believe that both individual and collective rights not only exist, but can co-exist, and that the development of instruments that champion collective rights - and particularly the rights of Indigenous peoples - will probably end up being one of the great challenges of what I hope will be a pluralist, tolerant, and mutually respectful 21st century.
I hesitate to make anything more in the way of a conclusion than that, since my role here today is not to tell the whole story, but merely to tell you about Chapter 1. I hope, therefore, that I have appropriately set the stage for our next speaker, who will discuss the United Nations Draft Declaration on the Rights of Indigenous Peoples. Thank you for your kind attention.
1. According to Eleanor Roosevelt, who was United States representative to the General Assembly and Chairman of the United Nations Commission on Human Righst during the drafting of the Universal Declaration, it "is not, and does not purport to be a statement of law or of legal obligation;" it is instead, she continued, "a common standard of achievement for all peoples of all nations." [return to text]
2. The vote by which the Universal Declaration was passed in the UN General Assembly was 48-0, although eight nation states abstained. [return to text]
3. I always find it interesting that this occurred despite the fect that the classic example the UN was addressing and trying to overcome the Holocaust was not really a war of State versus individuals, but of a State run by one people (the self-identified Aryan Race) at the expense of and to the detriment of another people (the Jews). [return to text]