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Response to Hans Kung's Remarks on Global Ethic and Human Responsibilities
A transcript of remarks by Kathleen Mahoney in response to Hans Kung's talk, Global Ethic and Human Responsibilities, from a symposium held at Santa Clara University April 1, 2005.
Sitting beside Professor Hans Küng, I feel very humble indeed, and to think that I can criticize his remarks is very presumptuous. But in any event I do have a few things I would like to say. I agree with much of what the professor has told us. I think the debate lies in some of the nuances with respect to rights and responsibilities and their relationship.
But first of all I think that it is very important to start this discussion from a baseline of understanding the Universal Declaration of Human Rights-its purposes, its standards, and its limitations-before taking on this other debate on the Universal Declaration of Human Responsibilities. When the Universal Declaration of Human Rights was drafted, the drafters clearly drew from ethical principles of the world's religions, and from liberal, socialist, and secular thinking. This is very obvious in the documents and minutes of the debates that went on at that time. The declaration was intended to reflect standards that are common to cultural traditions all over the world. I know we hear often the Universal Declaration attacked as a Western instrument, reflecting Western values, but indeed, if you look at the documents and the debates and the voting patterns, you will soon discover that it certainly does not simply reflect views of Western cultures. It was very much agreed upon in reflecting the religions and cultures and values of most of the areas of the world. I think that is a very important starting point.
It is also important to understand what the intention of the Universal Declaration drafters was not. Their intention was not to create a new philosophy or ideology, or to replace religion's political views or views on the purpose of life. In the past 60 years since the Universal Declaration was first put into place, the majority of time has been spent in trying to give more content to the rights articulated in the Universal Declaration. If you were to read the declaration you would see that the rights are very general and very vague in fact, and the major task of the United Nations and human rights organizations in the past 60 years has been to expand these standards, to expand these norms and to describe them in detail so that the world would understand what was meant by the rights. This is very evident if you look at the history of treaties coming out of the United Nations.
The Universal Declaration, of course, was not a legally binding document; it was a mere resolution, which identified civil and political rights and economic, social, and cultural rights as being important. What happened after that, as we saw starting with the race discrimination treaty, was an explanation of what it means to put equal rights into play. Similarly, shortly after, the convention on economics, social, and cultural rights and the convention on civil and political rights were expanded and described. Then came the convention on the elimination of all forms of discrimination against women, where those rights were looked at through the lens of women's experience, and all of the things that would be necessary in order for women to enjoy universal human rights were discussed in that convention. Then there is the torture convention and the convention on the rights of the child and the convention on migrant workers, on genocide, on anti-apartheid, on refugee protection, and so on. Those were the major treaties that the world signed onto in the explication of rights, and I would suggest the taking on of responsibility, in terms of seeing that those broad and general rights in the Universal Declaration would one day be implemented. In addition to the major treaties, there have been dozens of principles, guidelines, declarations, rules, and the like to set out to states how they should act when it comes to human rights matters.
The next development was regional organizations because it was thought that the global world is so massive and so different, one region from the other, that the implementation of human rights would be much more effective if it were regionalized. Europe is the best example of that and the most successful. But there are other inter-governmental organizations, such as the Organization of American States, which put their human rights document together. There is the African charter on human rights and so on. This is the way in which this evolution has occurred, and I would venture to say that we are just not there yet. We are on the brink of seeing the implementation of human rights take hold. We have spent these last 60 years developing standards, but the constant cry now is, there must be a motivation to now put those standards into play and create the laws, create the institutions, the implementing device to make them happen. Now one could say clearly that is a responsibility of states that has not yet materialized in most places of the world.
Having said all that, what else is important, it seems to me, is to understand the overall approach of the human rights project for the past 60 years. The overall approach is to define the human rights of individuals and to make states responsible for the fulfillment of those rights. The whole architecture of what I have just very, very briefly described depends on that concept. At this stage of the human rights projectwhich is still very much in its infancy, I would suggest, even though it is 60 years old, but nevertheless it is still very much in the early stages of implementationthere is worry in the human rights community that if we now upset that, or throw in a new device or a new tool, which would be an international declaration of responsibilities, we may, indeed, undermine this architecture which has been developed in the light of the individual's relationship with the state. So that is one concern.
Now, if you look at what I perceive to be the rationale for a universal declaration of responsibilities, the rationale is apparently based upon the observation that the peaceful and orderly world that we expected after the end of the Cold War, and certainly after the end of World War II, has not materialized. There has been a decline, especially very recently, a dramatic decline in respect for the rule of law. Uncertainty is the predominant trend in the world in terms of where we are going and human rights. Conflict has spread. In many, many parts of the world, violence is on the increase as opposed to where we had hoped it would be. Economic and political systems have collapsed or have failed on one hand, and on the other, we are seeing a huge development economically, which is challenging the integrity of the nation state. Modern technology has changed the world so dramatically and unexpectedly that it makes people very uncertain about how that power can be used and controlled. There is a crisis with respect to terrorism and the responses to it as we have heard from Malcolm Fraser. So there is a whole lot of uncertainty and definitely a fear of the direction that the world has taken, and as we just heard, a need for an energizing and fresh approach to the commitments that we have made in the past. Whether or not an undertaking such as this will achieve that, of course, is a question.
Other arguments that people and organizations have presented with respect to this type of approachputting out a declaration of universal responsibilitiesis that some say that duty language in and of itself, has been abused. There is a history of the concept of duty being used to silence those who would criticize the state or criticize people in positions of power. It has been used to silence dissent and actually to suppress human rights. Dissidents have been described as promoting instability and disturbing the social order. That is a duty critique. And so when human rights activists see that sort of response and that use of duty as a concept, they get very nervous about their ability to criticize, challenge, tell the truth, which is what human rights activists try very hard to do.
Duty concepts have also been used against women historically and particularly in recent times, as we see the rise of fundamentalisms all over the world. The use of the duty concept is being directed against women in terms of their struggle for equality, whether that be in the workplace or whether that be in the home. The notion of duty is most often translated to them in terms of maintaining the family and community and the power relations that have been historically based on duress to prevent them from exercising their human rights in the world. This is certainly observable in terms of the convention on the elimination of all forms of discrimination against women. This convention is one of the most reserved conventions, reserved meaning that states reserve themselves from many of its provisions. The reason that they present is that the duties of women override those provisions which would give them equality in the light of the CEDAW convention.
There are other critiques that say that the notion of duty gives political authorities the room to make demands with respect to blind and uncritical patriotism, which is the other side of the coin of silencing freedom of expression and freedom of association through the notion of duties. The answer to the argument that we sometimes hear is that human rights are being exercised irresponsibly. Human rights organizations respond to that critique by saying it is not their experience that human rights organizations or human rights activists exercise human rights irresponsibly, but rather the hallmark of the human rights movement is humanitarian and the emphasis is on protecting the most vulnerable and a community orientation.
I don't want to go on at length on the specific arguments, but I did want to comment briefly on the human rights regime and duties that already exist, because another point of view is that the human rights regime already extensively addresses duties as has been pointed out and that there is good reason not to be specific in outlining what those duties are. In fact, this debate did come up in the drafting of Article 29(1) of the Universal Declaration of Human Rights, which says that "Everyone has duties to the community in which alone the free and full development of his personality is possible." The debate around that provision was, on the one hand, that the drafters should articulate what those duties are. The other half of the debate, and the world was split on this at the time, was that if they got into specifying what duties are, they would be much too controversial; there could be no agreement. Some of the arguments I have already articulated were made at that time, that duties could be used in the hands of oppressive thinkers and oppressive governments to undermine and undercut human rights. Article 29(2) actually puts limits on the rights of individuals with the Universal Declaration of Human Rights. It allows states to limit rights if those limitations are for the purpose of securing 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. So the Universal Declaration certainly recognizes that governments can limit individual rights, but they are limited by the context of a free and democratic society.
In Canada, where I live, our constitution has within it a similar provision. Section 1 of our Constitution says that Canadian individuals' rights can be limited by government in the context of a free and democratic society as long as those limitations can be justified, are clear and transparent, and can be obviously argued in a court of law. That limitation has achieved to some really quite satisfactory degree, the balancing between individual rights on the one hand and the need for responsibility to community on the other. The Universal Declaration, which of course, our charter reflects in many respects also, as I just pointed out, has that limitation in it. So this clause in the Universal Declaration and in many constitutions of the world that are modeled on it show that states can limit rights in certain circumstances. Individuals have rights, but they are given the guidance through this provision that their rights are limited with respect to the needs of others and the community. Also, it shows that the drafters were very conscientious about the notion of responsibilities, although as I mentioned, they could not reach agreement on whether or not those responsibilities could be articulated, and so they weren't.
From a legal perspective then, it could be said that a balance has already been struck within human rights instruments, as between rights and responsibilities, that a parallel declaration on duties could very well upset this balance and create uncertainty and confusion about the meaning not just of the Universal Declaration of Human Rights, but also of many other human rights instruments. It would give power-holders an opportunity to play one document off against the other which is another fear that people have of the use that such a [responsibilities] document could be put.
Having said all of that, I do agree with the presentations that we have heard thus far in the conference, that ethics are very important; nobody would deny that. So are responsibilities; they are critically important. The issues that need to be discussed in putting together such a codeand they have to be hit head onis first of all, what needs of the community should be able to take precedence over individual rights. Secondly, how should the competing claims be reconciled? In what framework should competing claims be reconciledwith the state, with the community and with other individuals? Should they be reconciled on the basis of shared values or interests or something else? Thirdly, how do existing human rights instruments deal with responsibilities? Is a further instrument going to complement the current instruments, and how so? And how would assurances be made that an additional legal instrument could not be used to undermine this journey of the past 60 years of trying to articulate and put into place the rights and freedoms that have been, to some large extent, universally felt to be those the human condition requires in order to achieve peace and stability?
Kathleen Mahoney is chair of the Board of Directors, Rights & Democracy, Canada