Monday, October 31, 2005

The Universal Declaration of Human Rights

*All human rights for all*

It's a great document that I think generally withstands the test of time since its inception in 1948. And I urge every single person to click on the above link and to read through the short document to find out what rights a person is (theoretically) entitled to. And I would challenge anyone to find something objectionable in it (I disagree with the marriage and family thing but that's just me).

Human Rights are not meant to be used as some form of Western Imperialism and even if Human Rights were to be imposed, it is not necessarily bad because it does not restrict but give every individual the capacity to maximise her happiness and her functions. That is what Human Rights is about, the acknowledgement of the individual and the power to set him free.

Which leads me to point out the last two Articles in this Declarations, 29 and 30:

Article 29.
(1) Everyone has duties to the community in which alone the free and full development of his personality is possible.

(2) In the exercise of his rights and freedoms, everyone shall be subject only to such limitations as are determined by law solely for the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality, public order and the general welfare in a democratic society.

(3) These rights and freedoms may in no case be exercised contrary to the purposes and principles of the United Nations.

Article 30.
Nothing in this Declaration may be interpreted as implying for any State, group or person any right to engage in any activity or to perform any act aimed at the destruction of any of the rights and freedoms set forth herein.

This is what in debate we term aborogation and derogation of rights articles. The idea is that no single right allows you to infringe upon the rights of any other person or group. So as J.S. Mills puts it, "The right to move my fist, ends at your nose". On the freedom of speech, Justice Holmes stated that there was no right to shout fire in a crowded theatre.

For those who know me or who read my blog on a semi-regular basis, I think rights should only be aborogated when there is actual physical violence threaten. Others disagree and argue that the propensity for harm is sufficient. And that's a perfectly reasonably stance to take, especially when one considers the triple 7 bombings in Britain. My only concern is that the decision or the law should be drafted as narrowly as possibly so Nelson Mandela would not have been caught by it.

Because if you consider the whole concept of the separation of powers, it is premised on the idea that because power corrupts, you SHOULD NOT trust the government and the branches of the government SHOULD NOT trust each other. Institutional checks and balances, no need to depend on the goodness of your leaders. It would not have been difficult for the American Founding Fathers to draft a constitution that worked on the basis of trust. When our leaders drafted our constitution, they could have done so similarly, heck, consider that the UK till recently never even had a constitution (they had history though which taught them the need to check absolutism).

Similarly the notion of civil disobedience has gotten a tremendously bad reputation in this region and in my opinion, that has to do more with a desire to stay in power leading to a deliberate misintepretation of what it means. On one extreme end, you've got a situation like Mugabe's Zimbabwe where oppression and the rule of Mugabe IS the law. Where starvation is used as a political tool to force districts to vote for him. Where widespread intimidation and violence is used against political opponents and opposition supporters. Given an absolute incapicity to change the law in a legitimate structural and procedural fashion (because the Man controls everything), it cannot be wrong to disobey the law in order to get your voices heard and move towards change.

Even in a less extreme situation, consider Rosa Parks. The laws as it stood in the USA during the 50's was that of 'Separate but Equal' (a laughable concept if only it did not cause so much real hurt). You had Jim Crow laws and segregation and a US Supreme Court that still at that time upheld the constitutionality of those laws. Now, you had a perfectly working democracy (except that the blacks were not quite allowed to vote), and you had the rule of law. But you were still treated as a second-class citizen. Rosa Parks refused to obey the law and move to the back of the bus to sit in the blacks-only section, she refused to abide by the humiliation of these laws. Yes, she technically broke the law, but very very few of us today would consider her actions 'criminal' in the sense of it being 'Immoral' (note the capitalisation, I'm refering to critical morality in this instance).

Civil disobedience does not mean violence or non-peaceful methods. In fact, nearly all violent methods and organisations have failed. Ghandi succeeded, Malcolm X failed while Martin Luther King Jr succeeded. The ANC only succeded when they renounced terrorism, as did the PLO. So it does not mean the creation of anarchy. And it is something the Natural Lawyers and Positivists understand. The natural lawyers will say Lex Injusta non est lex (an Unjust law is not Law) and that it should be resisted except when resistance creates greater societal discord. The positivists always held that there was no necessarily connection between law and morality and that the law can be immoral (Hitler's Germany etc.).

There can be and has been legitimate debate on the extent of Human Rights, e.g. provision of welfare, the role of capital punishment, the right of a nation to a pre-emptive strike, sexual rights, the right to end one's life. But I feel that the rights as enunciate in this Universal Declaration are not and should not be contraversial.


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