navigating the contradictions
Taking his work experience in the UN and in the Inter-American System of Human Rights into account, Pinheiro highlights some of the main achievements and challenges in the development of International Human Rights Law in the last 60 years.
Where are we now after 60 years after the Universal Declaration of Human Rights? 1 Do we have anything to commemorate? Celebrations of declarations and treaties are often exercises in frustration, which is inevitable when we compare the ideals enshrined therein with the appalling contemporary reality. If we consider the process of setting standards and establishing legally binding conventions, the obvious answer is that there has been progress. As my former colleague Absjorn Eide recognized, “the Universal Declaration, by inspiring and shaping the conception of common values, has contributed more than any other document to open up those possibilities”. 2 The establishment of the UN Commission on Human Rights (CHR) in 1946 and later the Human Rights Council (HRC) in 2006, the International Criminal Court, and the ad hocinternational tribunals were extraordinary accomplishments. From the perspective of the democratic state and civil society, there were decisive changes. Some categories of victims – workers, women, children, gays, indigenous peoples, migrants, people with special needs and peoples of African descent – have seen their rights recognized, even if not yet fully protected.
But if we put ourselves in the shoes of the victims, there are 4 billion people excluded from the rule of law, ignorant of their rights, as the Commission on Legal Empowerment of the Poor has indicated, with many of the victims submitted to multiple human rights violations, and robbed of the chance to climb out of poverty. In fact, “only a minority of the world’s people can take advantage of legal norms and regulations. The majority of humanity is on the outside looking in, unable to count on the law’s protection”. 3 Estimates of the World Report on Violence against Children 4 suggest that 5.7 million children are forced into bonded labour, 1.8 million into prostitution and 1.2 million are victims of trafficking. While it is commonly thought that slavery ended decades ago, today there are more slaves than at any moment in history. Only 2.4% of the world’s children are legally protected from corporal punishment. Out of the 11 million babies born every year in Latin America and the Caribbean, 2 million – mostly among the poor, Afro-Latinos, rural and indigenous – will never be registered. They are born but do not exist in legal or administrative terms.
In retrospect, the 20th century was not just a period of war and conflict, holocaust, genocide, ethnic cleansing, apartheid, terrorism, and natural catastrophes – grey shadows that continue to threaten mankind. Amid those horrors, nevertheless there was unexpected progress in the struggle for human rights.
How could we imagine at the beginning of the 20th century that the supreme power of the Leviathan, the sacrosanct principle of sovereignty, could be eroded by international bodies and challenged by special rapporteurs, weakening the shield of sovereignty to protect national human rights violations? Even if this evolution has been outstanding, it has always been affected by the opposing dimension of the modern state, with its monopoly of legitimate physical violence. The state is both the major perpetrator of violations and the defensor pacis, the protector of the vulnerable. But the state is also one form of contradictory social relations; its actions and its morphology reflect this contradiction, 5 very much present in the area of human rights protection.
We were under the illusion that these contradictions in a certain way had been solved at the World Conference on Human Rights held in Vienna in 1993 by the Declaration and Programme of Action, when democracy was enshrined as the regime most conducive to promoting human rights. But democracy, we have learned à chaud in Latin America, is not a panacea that automatically dissolves authoritarianism and prevents human rights violations.
Democracy more easily promotes human rights, but both in consolidated democracies as well as in the newer ones, it is not necessarily a guarantee against human rights violations. In the South, the political transitions from dictatorship to democracy have to a considerable extent preserved the status quo instead of guaranteeing real change. Democracies in South America and Eastern Europe are often a disguise for the oppression of the poor, corruption and collusion of politicians and State agents with organized crime. In the North, the US government has condoned the use of torture against terrorist suspects and prisoners. 6 Democratic states in Europe have sotto voce collaborated with the rendition of prisoners to be tortured by third countries. 7 Right now those governments are implementing directives on the repatriation of economic and illegal migrants these host countries have economically exploited for more than a century, confining families with children in detention centers (I sadly must say that I visited some of these centers) for a period of up to 18 months. 8 Rich countries pay more than $300 billion dollars a year in agricultural subsidies, six times the value of their aid to developing countries, not complying with the spirit of the WTO agreements and dumping cheap produce in poor countries. 9 The struggle for human rights must confront these contradictions.
Having provided the context for the commemoration of the Universal Declaration, I will limit my remarks in the second part of this article to a brief analysis of two institutions I have been involved with over the last thirteen years, one regional, the Inter-American Commission on Human Rights, IACHR, where I have sat since 2004, and the other, the UN Human Rights Council (HRC) and its predecessor, the Commission on Human Rights (CHR) that I have served on from 1995 to 2008. In my conclusion, I will dare to deal very briefly with the way forward.
We are celebrating the Universal Declaration, but we must include in the commemoration theAmerican Declaration on the Rights and Duties of Man, approved three months before by the unanimous vote of the thenrecently formed Organization of American States (OAS). Despite this precedence, for 11 years no effort was made to translate the American Declaration into practice. However, in 1959, perhaps motivated by the Cuban Revolution, the OAS decided to establish the IACHR following the model that the founding states of the CHR had rejected: the members are not the representatives of state members of the OAS, but seven independent expertselected by the general assembly of the OAS, although in the first twenty years the “Commissioners” (a title with some Soviet flavour) behaved as delegates of their respective governments, protecting them from accusations. Fortunately, nowadays the Commissioners can no longer participate in any deliberations about their countries of origin.
The Commission is a quasi-judicial organ performing the role of public prosecutor of the Inter-American system. When countries fail to comply with the Commission’s recommendations, the case is referred to the Inter-American Court for Human Rights, a judicial body. In 2007, 115 cases were sent by the Commission to the Court. The binding sentences of the Court aim to vindicate the rights violated and to impose reparations and indemnities on the States that have recognised the jurisdiction of the Court, with which the governments usually comply.
There are great similarities between the Inter-American and the European Human Rights systems, but the issues considered by them in their evolution were different: most cases in the Inter-American system concerned disappearances, massacres, summary executions in the 1970s and 1980s – characteristics of theabsence of the rule of law that prevailed until the middle of the 1980s in almost the entire region. By contrast, in Europe the issues typically brought before the Court involved an improvement upon the existing rule of law. Since the creation of the Inter-American Commission, there have been successful modifications in the Inter-American human rights system that have broadened the guarantees for the population in the region. Nowadays among the 35 members of the OAS, 25 have ratified the American Convention on Human Rights, drafted in 1969, the basic document of the system, and 22 have recognized the jurisdiction of the Court. But even among those that have ratified the Convention and recognized the jurisdiction of the Court, many have been ambivalent and sometimes even hostile to them.
Only after the consolidation of authoritarian military regimes in the Southern Cone, did the IACHR begin to monitor human rights, under the pressure of reports of gross human rights violations presented to the Commission. 10 This development was very similar to what happened at the CHR; only after the denunciations of torture by the Pinochet military dictatorship and of apartheid in South Africa did the CHR begin to monitor human rights, at the end of the 1970s. The IACHR has also been inspired by the practice of the former CHR and has created posts for thematic and country rapporteurs who follow their country’s cases under discussion by the Commission or who are devoted to specific themes, make visits and prepare reports.
The real challenge for the Commission vià-vis the new democracies across the South American continent is that most political guarantees have been restored, and still there is a persistent lack of respect in regard to civil, economic and social rights for the majority of the population. Thus, the governments responsible must engage in a dialogue due to the continuation of patent human rights violations in the cases admitted by the Commission.
I would like now to discuss how the contradictory dimensions of the modern state have been reflected in the CHR and later in the HRC. It is too early to compare the Commission on Human Rights (CHR) a body which has evolved during 60 years, with the HRC, which is in its second year and 8 th regular session.
During the last decade of the CHR it was common to see some states accusing others of politicizing the Commission. But as my most dear friend Sergio Vieira de Mello observed critically in his last address to the 59th session, in April 2003, a few months before being killed in Baghdad: “most of the people in this room work for government or seek to affect the actions of government. That is politics. For some to accuse others of being political is a bit like fish criticizing each other for being wet. It has become a way to express disapproval without really saying what is on our mind”. Considering that the HRC as well as the CHR are multilateral bodies constituted by representatives of States which continue to protect their interests, the political nature of the HRC is an essential element for its functioning. It would be naive to expect that this political behaviour of the member States would change only because the structure of the body has changed.
In fact, the Commission was politicized immediately after its creation in 1946 and particularly in the 1970s and 1980s, profoundly divided between the Western and Socialist blocs. Since those times a growing abyss between the developed and developing countries became evident. Observing the votes in the HRC, this division has remained and has sometimes been more pronounced than in the case of its predecessor, the UN Commission on Human Rights (CHR). There is a generalized and increasing suspicion from the countries of the South towards any initiative from the Western European and Others regional group (WEOG).
Another preferred target for criticism have been the special rapporteurs, the “jewel of the crown” of the CHR, as Kofi Annan rightly once said, a unique mechanism in the UN, able to monitor human rights and to have some impact on the lives of the victims. Of course they have operated in a very contradictory framework and on thin ice because at the same time they are obliged to make public what they see and to try to convince the governments to comply and establish some kind of cooperation with the CHR (and now with the HRC). In a certain sense this contradiction is analogous to the other contradiction between the “repressive” face of the state, which commits human rights violations, and its “benevolent” face, which implements human rights policies: the rapporteurs are compelled to report prima facie and to try to establish a constructive dialogue with the “benevolent,” positive face. The work of the special rapporteurs is delicate and often thankless, to put it mildly, but it is essential and the system itself a great achievement which must be protected. The fight is ongoing and success is not assured.
There is now some concern about the role of civil society organizations in the HRC. During the last and 8 th session of the Council, there were repeated attempts by some countries to shut down NGOs, depending on their viewpoint. Their goal is no longer merely to challenge the principle of NGO participation or even to reduce their speaking time, but to muzzle them and to request the interruption of their speakers and the deletion of entire paragraphs from the records of the meetings.
The role of the HRC in strengthening dialogue and cooperation on human rights issues has also been reinforced, in particular “towards the prevention of human rights violations and to respond promptly to human rights emergencies,” 11 with the possibility of holding Special Sessions. Up to now, there have been seven Special Sessions: three dealt with Israel and the Palestinian Occupied Territories while the others dealt with Lebanon, Darfur, Myanmar and the right to food. It seems that the choice by the Human Rights Council to hold Special Sessions also includes criteria related to humanitarian international law, opening a more active role for the Council after natural disasters.
But the results of those Special Sessions were very meagre. For instance, the 5 th Special Session on Myanmar was a quick response to the crackdown by the military junta against the formidable protests by monks and the general population. Despite a notable consensus on adopting the resolution, the government of Myanmar merely invited the special rapporteur to make a country visit but did not implement any of the HRC’s recommendations, with no consequence at all. I think that this apparent irrelevance will be a strong stimulus for other authoritarian countries not to fear special sessions or resolutions passed by the HRC.
Undeniably there was an upgrading in the main UN interstate forum dealing with human rights. The CHR was just a functional commission (as the Commission on the Status of Women) and a subsidiary body to the UN Economic and Social Council (ECOSOC) but its successor body, the HRC, has been elevated to the status of a subsidiary body of the UN General Assembly. The most innovative mechanism established by the HRC is, of course, the Universal Periodic Review (UPR) seen as the best tool for highlighting critical human rights problems in all member states. The UPR hopefully will push the HRC to look at the degree of cooperation with human rights mechanisms and of implementation of human rights norms and standards in a universal manner. This is a fairly long-term endeavour, so one must wait to see how it will turn out.
Up to this point, I have dealt with the past and the present. What has the Angel of History foreseen for us?
A [Paul] Klee painting named Angelus Novus shows an angel looking as though he is about to move away from something he is fixedly contemplating. His eyes are staring, his mouth is open, his wings are spread. This is how one pictures the Angel ofHistory. His face is turned toward the past. Where we perceive a chain of events, he sees one single catastrophe which keeps piling wreckage upon wreckage and hurls it in front of his feet. The Angel would like to stay, awaken the dead, and make whole what has been smashed. But a storm is blowing from Paradise; it has got caught in his wings with such violence that the Angel can no longer close them. This storm irresistibly propels him into the future to which his back is turned, while the pile of debris before him grows skyward. This storm is what we call progress. 12
This thesis IX on history by Walter Benjamin can be a metaphor of the struggle for human rights, from the ruins of the past towards progress and perhaps with new catastrophes, even more destructive, in the future.
Of course my contact with the Angel of History is fairly limited and it would be too risky to make predictions about the events of the next 60 years. Let us be modest and think only about the next 10 years.
In the next decade, perhaps we will continue to navigate the contradictions, taking advantage of all of the “constructive ambiguities” in the institutionalisation of the HRC, to quote an expression of Ambassador Luis Alfonso de Alba, 13 the first president of the HRC, to implement human rights. We must never lose sight of the four billion people excluded from the joys of our celebration. It is time that the principles of the Universal Declaration and the other great human rights instruments contributed to the creation of a global safety net of rights be applicable to all persons, everywhere and beyond any cultural “exceptionalism”. 14 There are issues that must be urgently confronted all over the world such as lack of implementation of judicial decision, detention, migration, climate change, and organized transnational crime. The human rights systems in the UN or the regional bodies in the Northern and Southern Hemispheres will never be fully effective for those excluded if the countries cannot overcome the deficit in domestic legislation, the inefficiency of the judiciary, of the repressive apparatuses and the precarious implementation of rights at the national level. The obstacles to the protection of human rights will continue if the right of development and the elimination of extreme poverty and the right to food and to health, are not seriously tackled as crucial issues for the four billion in need but also for the developed world, which also contains a third world, continuously immobilized by fear, discrimination and racism. Social deprivation and economic exploitation must be considered serious violations of human rights, on a par with political oppression, torture and racial discrimination. 15 Only the indivisibility of human rights can reinforce their universality.
Definitively, as Daw Aung Sang Suu Kyi once said,
It is not enough to call for freedom, democracy and human rights. There has to be a determination to persevere in the struggle, to make sacrifices in the name of enduring truths, to resist the influences of desire, ill will, ignorance and fear […] It is man’s vision of a world fit for rational, civilized humanity which leads him to dare to suffer to build societies free from want or fear. 16
1. Another version of this text was presented at High-Level Panel on the 60th Anniversary of the Universal Declaration of Human Rights, “Where are we now? Development in the International Protection of Human Rights” 7 July 2008, Human Rights: Interpretation and Implementation, An Alumni Conference on the occasion of the 25th Anniversary of the Human Rights Centre, University of Essex. I would like to thank my friends Michael Hall, department of history, State University of Campinas, UNICAMP and Professor John Packer, director of the Human Rights Centre, University of Essex, for their comments and suggestions to this text. Of course, I am responsible for the last version. This text was prepared with the support of FAPESP and the CNPq, Brazil.
2. EIDE, A. The Historical Significance of the Universal Declaration. International Social Science Journal, UNESCO, v.50, n. 158, p. 475- 97, Dec.1998, p. 497.
3. COMMISSION ON LEGAL EMPOWERMENT OF THE POOR AND UNITED NATIONS DEVELOPMENT PROGRAM (UNDP). Making the Law for Everyone — Report of the Commission on Legal Empowerment of the Poor, New York, v. 1, 2008, p. 16.
4. PINHEIRO, P. S. Independent Expert of the UN Secretary-General for the study on violence against children. World Report on Violence against Children. Geneva: UNHRC, 22 June 2006, p. 364. Available at:
5. REY, M. T. The State as a contradiction. Capital and Class, London, v. 85, Spring 2005. Available at: <http://findarticles.com/p/articles/mi_qa3780/is_200504/ai_n13498475>. Last access on: 21 Sept. 2008.
6. See HUMAN RIGHTS WATCH. The Road to Abu Ghraib, New York, 2004. Available at: <http:/ /hrw.org/reports/2004/usa0604/>. Last access on: 21 Sept. 2008. And: GOUREVICH, P. & MORRIS, E. Standard Operating Procedure Inisde Abu Ghraib. New York: The Penguin Press, 2008, p. 368.
7. See COUNCIL OF EUROPE. Parliamentary Assembly. Committee on Legal Affairs. Secret Detentions and illegal transfers of detainees involving Council of Europe Member States: Second Report, 7 June 2007. Available at: <http://news.bbc.co.uk/1/shared/bsp/hi/pdfs/marty_08_06_07.pdf.> Last access on: 1 Oct. 2008.
8. See ORGANIZATION OF AMERICAN STATES (OEA). Inter-American Commission on Human Rights. Resolution 03/08 Human Rights of Migrants, International Standards and the Return Directive of the EU, June 2008.
9. ACTION AID, Farmgate: the developmental impact of agricultural subsidies. Report 2002. PAULO SÉRGIO PINHEIRO Year 5 • Number 9 • São Paulo • December 2008 ■ 79 Available at: <http://www.ukfg.org.uk/docs/AAFarmgate%20briefing.pdf>. Last access on: 11 Oct. 2008.
10. This evolution is magnificently documented in the book of Professor James Green to be published shortly: GREEN, J. We cannot remain silent: opposition to the Brazilian military dictatorship in the United States, 1964-85. Durham: Duke University Press, 2009. And in Portuguese: GREEN, J. Apesar de vocês: a oposição à ditadura militar nos Estados Unidos, 1964-85. São Paulo: Companhia das Letras, 2009.
11. ICC POSTION PAPERS/NATION HUMAN RIGHTS INSTITUTIONS AND THE UNHRC. GA Resolution 60/251, 22 Sept. 2006, par. 5-f.
12. See BENJAMIN, W. Theses on the Philosophy of History. Illuminations. New York: Schocken Books, p. 257-258, 1969; LÖWY, M. Walter Benjamin. Avertissement d’incendie.Une lecture des thèses Sur le concept d’histoire. Paris: PUF, 2001, p. 75.
13. Ambassador Luis Alfonso de Alba is the Permanent Representative of Mexico to the United Nations and International Organizations in Geneva and he was the first president of the Human Rights Council, chairing with great skill the process of definition of the institutionalization of that body in 2006.
14. FRANCK. Are Human Rights Universal?. Foreign Affairs, New York, v. 80, n.1, Jan.-Feb. 2001.
15. TAROOR, S. Are Human Rights Universal?. World Policy, Cambridge, v. XVI, n. 4, Winter 1999-2000.
16. KYI, A. S. Freedom from Fear Speech, 1990. Available at: <http://www.thirdworldtraveler.com/Burma/FreedomFromFearSpeech.html>. Last access on: 21 Sept. 2008. See Idem. Freedom from Fear and other writings: revised editon [with Vaclav Havel, Desmond Tutu, Michael Aris]. New York: The Penguin Books, 1996, p. 416.
ACTION AID. Farmgate: the developmental impact of agricultural subsidies. Report 2002. Available at: <http://www.ukfg.org.uk/docs/AAFarmgate%20briefing.pdf>. Last access on: 11 Oct. 2008.
BENJAMIN, W. Theses on the Philosophy of History. Illuminations. New York: Schocken Books, p.257-258, 1969.
COMMISSION ON LEGAL EMPOWERMENT OF THE POOR AND UNITED NATIONS DEVELOPMENT PROGRAM (UNDP). Making the Law for Everyone — Report of the Commission on Legal Empowerment of the Poor, New York, v. 1, 2008.
COUNCIL OF EUROPE. Parliamentary Assembly. Committee on Legal Affairs. Secret Detentions and illegal transfers of detainees involving Council of Europe Member States: Second Report, 7 June 2007. Available at: <http://news.bbc.co.uk/1/shared/bsp/hi/pdfs/marty_08_06_07.pdf.> Last access on: 1 Oct. 2008.
EIDE, A. The Historical Significance of the Universal Declaration. International Social Science Journal, UNESCO, v.50, n. 158, p. 475-97, Dec.1998.
FRANCK. Are Human Rights Universal?. Foreign Affairs, New York, v. 80, n.1, Jan.-Feb. 2001.
GREEN, J. We cannot remain silent: opposition to the Brazilian military dictatorship in the United States, 1964-85. Durham: Duke University Press, 2009.
GREEN, J. Apesar de vocês: a oposição à ditadura militar nos Estados Unidos, 1964-85. São Paulo: Companhia das Letras, 2009.
GOUREVICH, P. & MORRIS, E. Standard Operating Procedure Inisde Abu Ghraib. New York: The Penguin Press, 2008.
HUMAN RIGHTS WATCH. The Road to Abu Ghraib, New York, 2004. Available at: <http://hrw.org/reports/2004/usa0604/>. Last access on: 21 Sept. 2008.
ICC POSTION PAPERS/NATION HUMAN RIGHTS INSTITUTIONS AND THE UNHRC. GA Resolution 60/251, 22 Sept. 2006.
KYI, A. S. Freedom from Fear Speech, 1990. Available at: <http://www.thirdworldtraveler.com/Burma/FreedomFromFearSpeech.html>. Last access on: 21 Sept. 2008.
KYI, A. S. Freedom from Fear and other writings: revised editon [with Vaclav Havel, Desmond Tutu, Michael Aris]. New York: Penguin Books, 1996.
LÖWY, M. Walter Benjamin. Avertissement d’incendie.Une lecture des thèses “Sur le concept d’histoire. Paris : PUF, 2001.
ORGANIZATION OF AMERICAN STATES (OEA). Inter-American Commission on Human Rights. Resolution 03/08 Human Rights of Migrants, International Standards and the Return Directive of the EU, June 2008.
PINHEIRO, P. S. Independent Expert of the UN Secretary-General for the study on violence against children. World Report on Violence against Children. Geneva: UNHRC, 22 June 2006. Available at:
REY, M. T. The State as a contradiction. Capital and Class, Londres, n. 85, Spring 2005. Available at: <http://findarticles.com/p/articles/mi_qa3780/is_200504/ai_n13498475>. Last access on: 21 Sept. 2008.
TAROOR, S. Are Human Rights Universal?. World Policy, Cambridge, v. XVI, n. 4, Winter 1999-2000.