FEATURES

The Universal Declaration of Human Rights at 60:
Reflecting on the 'Magna Carta for All Mankind'

A detailed exposition of the genesis of the Universal Declaration of Human Rights and its adoption and adaptation by various jurisdictions, and its application in Singapore.
The adoption without dissent (though with 8 abstentions) ¹ by the UN General Assembly of the Universal Declaration of Human Rights ('UDHR')² on 10 December 1948, was nothing short of providential, given it was not aborted by the onset of the Cold War, where ideological consensus among nations was fracturing. The Lebanese delegate Charles Malik considered the UDHR's adoption 'really something of a miracle' and many NGOs described the UDHR as achieving 'the very near impossible'.³ It was a provisional document, containing political-moral aspirations rather than binding legal obligations, though some UDHR norms have certainly attained the status of universally binding customary international law,⁴ as Singapore courts have recognised.⁵

Mrs. Eleanor Roosevelt, the US delegate who headed the Commission on Human Rights charged with drafting the UDHR, hoped this imperfect document, this milestone in a continuing journey, 'might become the Magna Carta of all men everywhere'.⁶ Certainly, the UDHR has influenced the drafting of constitutions and constitutional rights jurisprudence⁷ in many jurisdictions since its inception. Indeed, the 1966 Constitutional Commission referred to its property rights clause in discussing the possibility of including a modified variant in the Singapore Constitution.

On the 10th of December 1948, Mrs. Roosevelt observed: 'the Arabs and the Soviets may balk - the Arabs for religious reasons and the Soviets for political ones'.⁸ Saudi Arabia had trouble with article 16 and article 18 which related to equal rights in marriage and the freedom to have and to change a religion, respectively. It broke ranks with other Muslim nations like Syria, Iran, Turkey and Pakistan, however, in not supporting the UDHR. The Soviet bloc was concerned that this instrument might violate their national sovereignty, earning the stinging rebuke from French delegate Rene Cassin that the Nazis in the 1930 had raised sovereignty arguments before the League of Nations to shield their abhorrent gross human rights abuses. When the President of the General Assembly, Herbert Evatt called for the vote, Burma was the first country to vote in support of the UDHR.

When détente rigidified in the 1950s, it took almost 20 years before the adoption of the International Covenants on Civil and Political Rights (ICCPR) and Covenant on Economic, Social and Cultural Rights (ICESCR) in 1966. Cumulatively, these two treaties together with the UDHR constitute the 'International Bill of Rights' which frame the burgeoning corpus of human rights norms today. A decade would pass before these treaties came into effect in 1976.

The UDHR is the only human rights document bearing the word 'universal', as opposed to 'international.' This is attributable to the global reach of Article 2,⁹ which encompassed not only colonial powers but colonial territories. This strong egalitarian commitment was one reason why apartheid-era South Africa refused to adopt the UDHR. It is also not a sexist document as references to 'all men' were replaced by the more inclusive 'all people', largely owing to the interventions of the Indian delegate Mrs. Mehta, with Soviet support.¹⁰ However, the universality of the UDHR has since been criticised as being unrepresentative as many African and Asian nations were uninvolved in its drafting; thus, UDHR norms embody particularist 'western' liberal values, a form of cultural imperialism or European triumphalism. Former Malaysian Premier Mahatir Mohammad called for a review of the UDHR in 1998, in setting communitarian 'Asian values' against the perceived individualism engendered by rights discourse.

This is an inaccurate view of history for various reasons. First, the UDHR was a product of the failure of European collectivism and the ensuing barbarism of the totalitarian, racist and genocidal Nazi state. It was a prudential response to history, an appreciation that the Holocaust¹¹ was the 'expression of secular hubris, of human power intoxicated by the technology at its disposal and unrestrained by any sense of ethical limit'.¹² It in fact constituted a return to the natural law heritage which seeks to temper the cruelties of positive edicts. Second, the UDHR was not the ethnocentric product of a single author, but had many authors from various Asian, African, Islamic, Confucianist, Marxist, Catholic backgrounds and traditions. Indeed, two leading figures in the drafting process were the Chinese delegate, PC Chang, an expert in Confucianism and Charles Malik, a Thomist natural lawyer. What was produced, after broad consultation, was a consensus document, not doctrinal agreement.

Neither the UDHR nor human rights requires a commitment to a radical secularism, a perception that has provoked a reaction in the form of theocentric documents grounding human rights in God, such as the Cairo Declaration of Human Rights in Islam.¹³ The atheistic Soviet bloc vehemently opposed proposals to refer to 'God' in the UDHR. The eventual compromise was the adoption of an 'agnostic' or open-ended, plural conception of human rights, as most delegates considered, rightly, that questions of God and philosophy could not be decided by vote,¹⁴ just as morality cannot be decided by mathematics. Eleanor Roosevelt attributed the source of rights to 'a divine Creator' who had placed 'a divine spark in men' but appreciated that other people wanted Article 1 of the UDHR to be 'expressed in such a way that they could think in their particular way about this question'.¹⁵ Thus it was drafted in a way to accommodate many bases for human rights; the success of the UDHR may be partially owing to the fact that it did not require one to abandon all religious and philosophical norms in capitulation to a secular idolatry.

Neither do UDHR norms demand a commitment to radical individualism, where an excessive focus on rights turns liberty into narcissistic licence. This has propelled private efforts to refocus attention on responsibilities such as the Interaction Council's 1998 Universal Declaration of Human Responsibilities¹⁶ as well as a draft Declaration on Human Social Responsibilities.¹⁷ This was to remedy the perception that a rights focus had become a synonym for cultivating egoism, antagonism and licentiousness. Rights in themselves are self-centred and an incomplete moral language; they must be considered in conjunction with other-centred responsibilities and virtue.

However, there are various types of duties, which may be owed by an individual to a state and by an individual to another individual. Both types were referenced by Rajah J in Chee Siok Chin v PP,¹⁸ an unlawful assembly case concerning a demonstration by four protestors outside the CPF Building in August 2005. An example of a duty owed to a state is here evident:
Rights inevitably and invariably entail some responsibilities … In Singapore, Parliament has through legislation placed a premium on public order, accountability and personal responsibility … Free speech is neither impaired nor impeded by ruling out [threatening, abusive and insulting speech] … Disseminating false or inaccurate information or claims can harm and threaten public order ...¹⁹

Duties owed to the state may be abused, such as a duty to obey the Fuhrer, where anything contrary to this was not allowed. The concept of duties owed by one individual to another are reflected in this extract:

Freedom of action invariably ends where conflicting rights and/or interests collide. Contempt for the rights of others constitutes the foundation for public nuisance. All persons have a general right to be protected from insults, abuse or harassment. Those who improperly infringe or intrude upon such a right to draw publicity to their cause, regardless of the extent and sincerity of their beliefs, must be held accountable for their conduct.²⁰

Thus, in exercising the right to free speech, you must respect the rights of other people. This is an example of an innocuous duty owed to others. No man is an island, entire of itself, each is a piece of the continent, a part of the main, and social duties are a facet of living in a civilised community, rather than a savage Hobbesian 'state of nature'.

The UDHR does not envisage a liberal Enlightenment atomistic individual but rather an individual situated in community. Article 1 of the UDHR starts with 'brotherhood' and Article 29 concludes with a reference to community, public goods such as public morality and democracy well as the rights of others, against which rights are balanced.
Indeed, the Singapore government, 'like the vast majority of countries, subscribes to the Universal Declaration of Human Rights, but universality applies only to a core of basic human rights',²¹ beyond which there is no consensus; further, human rights are to be interpreted and enforced according to each country's specific historical, social and economic circumstances. The 2007 ASEAN Charter, which Singapore has signed, affirms that human rights, like the rule of law and democracy, are facets of good governance. Since 1995, Singapore has become socialised to the process of making state reports and entering into dialogue with human rights treaty monitoring committees.²²

Then Attorney-General Professor Walter Woon stated in May 2008 that it was a 'misconception that Singapore officialdom is against human rights'; what is opposed is 'the assumption of some people that when they define what are human rights, that decision is the decision of the rest of humanity'.²³ A clear example is that of formulating contentious claims to 'same-sex marriage' as a human rights issue, where there is no national or international consensus on this area of profound moral disagreement. At the 1993 Vienna World Conference, then Foreign Minister Wong Kan Seng said that no country had rejected the UDHR, observing:

Most rights are still essentially contested concepts. There may be a general consensus. But this is coupled with continuing and, at least for the present, no less important conflicts of interpretation. Singaporeans, and people in many other parts of the world do not agree, for instance, that pornography is an acceptable manifestation of free expression or that homosexual relationships is just a matter of lifestyle choice. Most of us will also maintain that the right to marry is confined to those of the opposite gender.²⁴

There is a need to distinguish between core legal human rights and contested political claims - there are tests of legal validity in relation to international human rights law sources, which are primarily treaty law and customary international law. An absence of quality control²⁵ and a less than rigourous approach towards identifying rights runs the risk of trivialising human rights, through such putative rights such as a 'right' to sexual preferences or a 'right' not to be killed in a war.

Given the moral force of 'rights' and its legitimating power, certain activists unsurprisingly deploy human rights terminology to advance their preferred political agendas. As Hall perceptively notes, the attempt to label contentious policy preferences such as same-sex 'marriage' a 'human right' is no more than a political strategy designed to insulate a morally contentious interest from public debate and to silence dissent; it seeks to 'load the dice of public discourse heavily in favour of a desired outcome'. ²⁶

Human rights language becomes cheapened, as 'little more than an illiberal rhetorical card'.²⁷ This fudges the line between law and political rhetoric and undermines the credibility of the human rights movement by seeking to present a fractious issue, such as homosexual parenthood or renting wombs, as a legal claim to achieve a sort of rhetorical fait accompli, without the requisite level of consensus. It is an attempt to avoid a debate and may endanger the consensus underlying accepted core human rights.

On its 60th anniversary, the UDHR remains the accepted cornerstone of normative human rights standards, covering both civil and political rights as well as socio-economic rights. This is a consensus which should be consolidated and elaborated, preserved from dilution by the making of extravagant and controversial politicised claims. Indeed, not only has the UDHR been referenced in Parliament,²⁸ increasingly, public law arguments are framed in terms of UDHR rights by counsel, as in the case of Nguyen Tuong Van v PP²⁹ and Re Gavin James Millar QC,³⁰ either to accentuate the importance of an existing right, to import substantive content to an existing right or possibly to ground an independent right. From a previous cursory treatment of UDHR norms,³¹ Singapore courts are evolving a more sophisticated and nuanced approach towards ascertaining whether an international instrument which is not a treaty, such as the UDHR, embodies binding customary international law ('CIL').

Four questions must be answered. First, the status of the norm must be ascertained and this must be 'clearly and firmly established before its adoption by the courts'.³² In Nguyen, article 36(1) of the Vienna Convention on Consular Relations (to which Singapore was not then a party) was found to embody CIL for various reasons indicating consensus: it was incorporated into standard operating procedure, Singapore adhered to the practice of notifying consular officials where one of their nationals was arrested and the prosecuting officer did not raise any objections to the view that it embodied custom.

Second, what rules govern the reception of CIL into the domestic legal order? Singapore adopts a monist approach such that CIL directly applies as part of Singapore law without an intermediate act of incorporation. Third, is an accepted CIL rule breached on the case facts? In Nguyen, while the prohibition against torture, cruel and inhumane treatment was accepted as CIL, the Court held there was no consensus to show death by hanging was cruel and inhumane. Lastly if a norm is a CIL norm which is breached on the facts, what place in the hierarchy of legal norms does it assume? Is it a common law rule, to be trumped by statute law or a constitutional law norm, against which inconsistent statutory norms are void? This question remains to be settled.
The UDHR is the most translated document in the world today; it has apparently been translated into 360 languages of the 6912 living languages today. Human rights law is an international language but needs to be translated into a local dialect to gain legitimacy amongst domestic stakeholders. This endeavour must be done without compromising global standards, while allowing for legitimate differentiation in practice, without devolving into an apology for power. The UDHR was adopted 60 years ago with the goal to save 'succeeding generations from the scourge of war', as part of the new foundation to ensure a peaceful and just world order. It is our inheritance to safeguard, strengthen, or lose, and will continue to shape political and legal discourse in Singapore in the 21st century.

Professor Thio Li-ann³³
National University of Singapore,
Faculty of Law
E-mail: lawtla@nus.edu.sg

Notes

1 There were 8 abstentions from the Soviet Bloc, Saudi Arabia and South Africa.

2 G.A. res. 217A (III), U.N. Doc A/810 at 71 (1948).

3 Paul Gordon Lauren, The Evolution of International Human Rights: Visions Seen (University of Pennsylvania, 1998, at 237.

4 Hurst Hannum, The Status of the Universal Declaration of Human Rights in National and International Law (1995-1996), 25 Ga. J. Int'l & Comp. 287 at 314.

5 [2005] 1 SLR 103.

6 Mary Ann Glendon, A World Made New: Eleanor Roosevelt and the Universal Declaration of Human Rights, (New York: Random House, 2002) at 231.

7 Eg, Article 20(1), Constitution of Romania: '(1) Constitutional provisions concerning the citizens' rights and liberties shall be interpreted and enforced in conformity with the Universal Declaration of Human Rights, with the covenants and other treaties Romania is a party to'.

8 Mary Ann Glendon, A World Made New: Eleanor Roosevelt and the Universal Declaration of Human Rights, (New York: Random House, 2002) at 163.

9 Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. Furthermore, no distinction shall be made on the basis of the political, jurisdictional or international status of the country or territory to which a person belongs, whether it be independent, trust, non-self-governing or under any other limitation of sovereignty.

10 Johannes Morsink, The Universal Declaration on Human Rights: Origins, Drafting and Intent, (University of Pennsylvania Press, 2000) at pp. 92-129.

11 Ian Kershaw, The Extinction of Human Rights in Nazi Germany, in Historical Change and Human Rights, Olwen Hufton ed., (Basic Books, 1995), 217.

12 Michael Ignatieff, Human Rights as Politics and Idolatry (Princeton & Oxford: Princeton University Press, 2001) at p.8.

13 5 August 1990 (Islamic Conference of Foreign Ministers).

14 Johannes Morsink, The Universal Declaration on Human Rights: Origins, Drafting and Intent, (University of Pennsylvania Press, 2000) at 285.

15 Mary Ann Glendon, A World Made New: Eleanor Roosevelt and the Universal Declaration of Human Rights, (New York: Random House, 2002) at 42.

16 Interaction Council, text available at: http://www.interactioncouncil.org/udhr/declaration/udhr.pdf.

17 UN Commission on Human Rights, Promotion and Protection of Human Rights: Human Rights and Human Responsibilities, Ann. I, UN Doc. E/CN.4/2003/105 (2003); see also John Knox, Horizontal Human Rights Law (2008) 102(1) AJIL 1.

18 [2006] 1 SLR 582.

19 Chee Siok Chin v PP [2006] 1 SLR 582 at para 135.

20 Chee Siok Chin v PP [2006] 1 SLR 582 at para 136.

21 Letter dated 17 Sept 2008, Permanent Mission of the Republic of Singapore to the UN Office at Geneva, addressed to the President of the Human Rights Council, A/HRC/9/G/7, 24 Sept 2009.

22 Convention for the Elimination of All Forms of Discrimination against Women ('CEDAW'); Convention of the Rights of the Child ('CRC') and the Convention for the Prevention and Punishment of the Crime of Genocide. Singapore's reports to the CEDAW and CRC committees are available on the website of the Ministry of Community Development, Youth and Sport.

23 See Politics, Law and Human Rights 'Fanatics', AG Walter Woon, TODAY (Singapore), 30 May 2008 at p.6.

24 Foreign Affairs Minister Wong Kan Seng, The Real World of Human Rights, 16 Vienna 1993, Singapore Government Press Release No: (20/JUN, 09-1/93/06/16) reproduced in [1993] Sing. J. L. S. 605.

25 Philip Alston, Conjuring Up New Human Rights: a Proposal for Quality Control (1984), 78 AJIL 607-621.

26 Politics, Law and Human Rights 'Fanatics', AG Walter Woon, TODAY (Singapore), 30 May 2008 at p.6.

27 Stephen J Hall, The Persistent Spectre: Natural Law, International Order and the Limits of Legal Positivism (2001) 12(2) EJIL 269-307, at 304.

28 54 Singapore Parliament Reports, 22 Feb 1990, col. 1047 at col. 1108 (NCMP Lee Siew Choh in criticising detention without trial argued that freedom from arbitrary arrest was a basic human right enshrined in the UDHR); 69 Singapore Parliament Reports, 1 June 1998 at col. 59, Misuse of Drugs Amendment Bill; (NCMP JB Jeyaretnam arguing caning was 'illegal under the UDHR'); 76 Singapore Parliament Reports, 15 Aug 2003 Land Acquisition Act, col. 2458 (Opposition MP Chiam See Tong arguing that nominal compensation for compulsorily acquired land constituted a human rights violation); 84 Singapore Parliament reports, 28 Feb 2008 (Budget - Ministry of Foreign Affairs) ( NMP Professor Thio Li-ann urging that the UDHR serve as the minimal normative basis for any ASEAN human rights regime).

29 Article 5 of the UDHR was invoked in an attempt to argue that death by hanging constituted a violation of the norm prohibiting torture, cruel and inhumane treatment in such manner to be a deprivation of life which was 'not in accordance with law' as required by article 9(1), Singapore Constitution: Nguyen Tuong Van v PP [2005] 1 SLR 103. For a comment, see Li-ann Thio, The Death Penalty as Cruel and Inhuman Punishment before the Singapore High Court? Customary Human Rights Norms, Constitutional Formalism and the Supremacy of Domestic Law in PP v Nguyen Tuong Van (2004), (Winter 2004) 4 (2) Oxford University Commonwealth Law Journal 213 -226 and CL Lim, The Constitution and the Reception of Customary International Law: Nguyen Tuong Van v PP [2005] SJLS 218-233.

30 [2008] 1 SLR 297. Here article 10 of the UDHR was invoked to argue that not granting a Queen's Counsel admission to the Singapore bar to argue a case against a Senior Counsel in a defamation suit was a violation of the equality of arms principle, as a facet of a fair trial guarantee. The Singapore Constitution does not contain a right to a fair trial. For an analysis of this case, see Thio Li-ann, Reading Rights Rightly: The UDHR and its Creeping Influence on the Development of Singapore Public Law (Dec 2008) SJLS (forthcoming).

31 In Colin Chan v PP [1994] 3 SLR 662 at 681I-682A, in relation to an invocation of article 18 UDHR (the religious freedom clause) in underscoring the importance of religious freedoms in the face of a ban on religious publications, Yong CJ said: 'The ban was therefore described by the appellants as being…irrational, oppressive, unreasonable, overboard, a violation of the freedom of religion as enshrined in the Constitution and also a violation of international declaration of human rights. All things being said, I think the issues here are best resolved by a consideration of the provisions of the Constitution, the Societies Act and the Undesirable Publications Act alone'.

32 Nguyen Tuong Van v PP (2005) 1 SLR 103 at 127, para 88.

33 Ph.D. (Cambridge), LLM (Harvard); BA (Oxford)(Hons), Barrister (Gray's Inn, UK) Professor of Law, National University of Singapore, Nominated Member of Parliament (Eleventh Session).