20 Oct The Cold War isn’t over yet
The cold war ended fifteen years ago. However, in the case of international human rights law it looks like it never did. 
The International Bill of Human Rights still bears allover the marks of the struggle between liberalism and communism.
The Universal Declaration of Human Rights is, in many regards, an extraordinary document. It was the first, and unfortunately the last, time that the world could agree on a basic list of human rights. It was adopted in December 1948, with 48 votes in favor, 8 abstentions (Belarus, Czechoslovakia, Poland, Saudi Arabia, Ukraine, USSR, South Africa and Yugoslavia) and 2 non-voters.
We all know the history. The development and codification of those basic rights into a binding instrument was soon derailed by the logic of the cold war. Instead of one treaty we had two: the Covenant of Civil and Political Rights, the manifesto of liberal democracies, and the Covenant of Economic, Cultural and Social Rights, the pet-project of socialist countries. Besides these two, eventually, we had several dozens of regional and subject-matter specific agreements.
However, since the Universal Declaration, we have not been able to articulate one truly common and comprehensive understanding of what human rights are and how they should be protected.
To the risk of sounding like a Pollyanna, it seems to me that we are at a time in history where a single agreement, merging all we have done so far, and acceptable by most, if not everyone, is possible – and if that is not possible, at the very least we could settle with another declaration. After all, the world is no more split in two radically antithetical views (“everyone is free, hence everyone is equal” and “everyone must be equal for everyone to be free”). Granted, there are still plenty of enemies even of the very idea of human rights, but they are either hiding somewhere in the mountains of Central Asia, or, if they are in control of States, they do not have the chance to form a truly blocking majority. Arguably, in many ways the world today is less divided and more homogenous than it was in 1948, when the then 58 Member States of the United Nations represented a wide range of ideologies, political systems and religious and cultural backgrounds, as well as different stages of economic development. If we could do it then, why can we not today?
There are various reasons why we should do it. Indeed, such a new compact would have several benefits. For sake of brevity, I’ll mention just two: First, it would replace an astonishingly large patchwork of treaties, with different participation rates, and a panoply of international bodies and procedures (Click here to have a general idea of the human rights sprawl, and this does not include the regional level). That would greatly simplify implementation control, reduce costs, and ease the burden of reporting, a win-win situation for all. Second, while all people under colonial rule in 1948 had no chance to have a say in the shaping and adoption of the declaration, today a new instrument could be truly universally representative.
Many might think that such a project could not succeed because these days the US is not surely in the mood to negotiate new, and ambitious, international agreements. In fact, the United States is probably necessary for the success and credibility of such an endeavor. Yet, the good news is that it might have an interest in spearheading it. This might be a good occasion to do some good public relations, and patch up a very battered image; and, on this, I think, there might be ground for a bipartisan agreement. The US won the Cold War, it can also help burying it once and for all, and avoid it comes back under a different guise.
While Professor Romano’s proposal of a new universal human rights compact has appeal, I have to disagree that we are at a time in history where it is possible. One only needs to spend some time in Geneva at the new UN Human Rights Council to see that the world is indeed still split on human rights, and that the enemies of human rights are not “hiding somewhere in the mountains of Central Asia” but rather are in control of the Council, where they do have a blocking majority. Although it’s now North against South rather than liberal democracies against socialist states, the battle over civil and political rights versus economic, social and cultural rights is still being vigorously fought. And even the very concept of universality is under attack. To give just one example: if the Islamic, African and Asian groups at the Council (which make up its majority) get their way, the body’s new “universal” periodic human rights review will not be universal at all, but will vary based on the religion, “socio-cultural specificities,” and level of development of the country under review.
Elizabeth K. Cassidy
Assistant Executive Director
UN Watch (www.unwatch.org)
Geneva, Switzerland
For an even more intimate acquaintance with the ‘human rights sprawl,’ see my bibliography on ‘human rights law’ posted at PrawfsBlawg: On left, under ‘Categories,’ click on ‘Research Canons,’ from there scroll down to Thursday, October 5th, and you can download the list as a Word doc.
You know, I dealt with the CCPR and CECSR in law school quite a bit, but I never even thought to look at them through the lens of the cold war. Those treaties make a lot of sense now. Thanks for the edification!
“That would greatly simplify implementation control” — yes, but at the enormous cost of getting rid of the more effective (and more intrusive) compliance mechanisms. Most countries in the world aren’t prepared to accept a court with the power of the European Court of Human Rights. Does that mean the Europeans should get rid of it? Allowing countries to progress at somewhat different speeds, while it may be less desirable than having the slower speed up, is much better than forcing the faster to slow down.