REFLECTIONS ON HUMAN RIGHTS

Stephen Vasciannie

The post-World War II era has witnessed striking growth in support for
human rights. This is not at all surprising for, given the carnage of the Second
World War, and bearing especially in mind the atrocities of the Holocaust,
States have been compelled, as a matter of humanity, to show deference to
basic rights of persons.

United Nations
Accordingly, the United Nations Charter indicates in Article 1(4) that one
of the purposes of the organization is: (t)o achieve international cooperation
in promoting and encouraging respect for human rights and fundamental
freedoms for all without distinction as to race, sex, language or religion.
Starting with this foundation in the U.N. Charter, the United Nations
General Assembly passed the Universal Declaration of Human Rights (1948), as
a means of setting out the core commitments of all States in the area of human
rights. The years immediately following the Universal Declaration of Human
Rights also witnessed considerable debate across ideological lines as to the
scope and definition of the basic human rights to be protected by International
Law.
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At the end of this debate, the United Nations presented two basic treaty
instruments for consideration by States, namely, the International Covenant on
Civil and Political Rights (the ICCPR), and the International Covenant on
Economic, Social and Cultural Rights (the ICESCR).
These two documents the ICCPR and the ICESCR are core treaties
within the United Nations system and, when read along with the Universal
Declaration

of

Human

Rights,

constitute

the

foundation

for

modern

international human rights law.

So, for example, these instruments affirm the right to life, liberty and
security of person, equality before the law, the presumption of innocence,
freedom of movement, freedom of thought, conscience and religion, freedom of
opinion and expression, and numerous other rights and freedoms.

Exemplars
In addition to affirming core rights at the international level, these
instruments serve as exemplars for States that wish to incorporate human
rights into their national laws. To take the case of Jamaica, the assurances set
out in the Universal Declaration of Human Rights were broadly incorporated
into Chapter III of our Constitution at the time of independence. These rights,
now amended and enhanced by additional rights, now constitute the Charter of
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Rights and Freedoms, our guiding rules on the rights of persons in the
country.
The post-war years have also witnessed recognition of human rights
within regional groupings.

Shortly after the United Nations presented the

Universal Declaration of Human Rights, some European adopted the European

Convention on Human Rights (1950).
Similarly, countries within the Organization of American States,
including Jamaica, have adopted the American Convention on Human Rights
(1969), while African States have taken up the African Charter on Human and
Peoples Rights (1981).
Human rights instruments have also concerned themselves with specific
issues and groups.

From among the numerous examples in this category,

reference may be made to the International Convention on the Elimination of

All Forms of Racial Discrimination, the International Convention on the
Elimination of all Forms of Discrimination against Women, the Convention on
the Rights of the Child, and the Convention on the Rights of Persons with
Disabilities.

Obstacles

But, though human rights have received increasing respect from States
since World War II, significant obstacles remain on the road to the full
achievement of these rights.

In the first place, it is open to argument that the

conceptual foundations of the modern human rights project lack firmness and
precision. Why do we all have a claim to basic human rights? Are human
rights entitlements presented by an omniscient Supreme Being to humanity?
And, if so, do they come from the Christian God, or from the divine creator of
another religion.
In the alternative, could it be that the human rights project proceeds on
from a secularist core? Do we all have basic human rights because mankind
has agreed that irrespective of religion each person is entitled to a basic
level of dignity and respect?
There is no ready, undoubtedly correct answer to these questions; but,
the starting-point in addressing them may determine ones broad perspective
on human rights issues. If, for instance, you believe human rights to be Godgiven entitlements, then you may be inclined to the view that human rights are
immutable, that they are, and have always been fixed by God.
But if, in contrast, you argue that the recognition of human rights is
actually a secularist construct, then you may consider that these rights may
evolve as society changes, and indeed you may believe that, in some instances,

human rights must be in the vanguard, bringing about improvements in

society in the name of personal dignity.

Western Bias?
A second conceptual problem concerns the putative Western-bias in
human rights issues. When the main human rights instruments were adopted
following World War II, the Western Powers were, generally speaking, in the
ascendancy, and they had a particular perspective on human rights.
Specifically, Western Powers tended to regard civil and political rights as
constituting the main rights to be recognized in practice.
Thus, the Western Powers and allies gave their firmest support to rights
that required governments to exercise restraint, the so-called negative rights.
The theory was that when the State hold back, the individual will come
forward, and achieve a life of independence and self-fulfilment.
During the Cold War, however, this perspective was open to challenge on
ideological grounds.

The then Soviet Union, for instance, maintained that

there was no convincing reason to assume that civil and political rights (e.g.
the right to vote, or freedom of expression) should be given greater respect than
economic and social rights (e.g. the right to employment, or the right to food).

The Western, individualistic orientation of human rights was also

challenged by some Asian States.

These latter States, which tend to show

greater respect for group rights versus individual rights, argued that some of
the underlying assumptions of Western human rights rules were culturally
inappropriate when applied in some parts of the world.

Universal Rights?
Arguments about the Western bias in human rights also tend to merge
into another conceptually question, namely, whether human rights must be
universally accepted as the same everywhere, or whether different cultures are
entitled to have different human rights. This debate universality of human
rights versus relativism has long been a staple concern of human rights
literature; and it stands at the heart of a number of practical problems in
human rights law today.
To return to the case of Jamaica, we are often criticised by some
countries (especially members of the European Union) for retaining the death
penalty within our national law.

The European critics start from a

universalistic premise: the death penalty is always and everywhere inhuman

and barbaric.

And they make every effort to convince the international

community that such is the case.

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On the other hand, Jamaica -- perhaps without even articulating the

matter in these terms starts from a relativistic position. For us, it may be all
right for some societies to abolish the death penalty, but we will retain it, for a
variety of socio-cultural reasons. My point for the moment is not to reargue the
pros and cons of the death penalty; it is just to point out that, in the matter of
the death penalty, Jamaica has adopted a relativistic perspective in contrast to
Europes universalism.

Flogging and Whipping

For quite some time, Jamaica had also adopted a similar approach to the
question of flogging and whipping.

In brief, until the passage of abolition

legislation in 2013, Jamaica retained flogging and whipping as possible forms

of punishment for certain crimes. This relic of slavery was subject to
considerable criticism from international bodies, including the United Nations
Human Rights Committee.
Thus, in 2004, when the case of Errol Pryce v. Jamaica was heard by the
United Nations Human Rights Committee, the Committee spoke in firm,
universalistic language:
(I)rrespective of the nature of the crime that is to be punished, however
brutal it may be, corporal punishment constitutes cruel, inhuman and
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degrading treatment or punishment (UN Human Rights Committee,

Communication No. 793/1998).
When Minister of Justice Mark Golding steered the Law Reform (Flogging
and Whipping) (Abolition) Act through the Senate in 2013, he was, in effect,
abandoning Jamaicas view that our national life, our national peculiarities,
required us to flog and whip grown men as punishment.
He was also indicating that, on this matter at least, Jamaica was
prepared to join the international community in banning this manifestation of
mans inhumanity to man.

It was time for a change, and Minister Golding

deserves credit for doing the right thing.

Resource Constraints
Another set of obstacles to the full recognition of human rights arises
from resource constraints. At the broadest level, some civil and political rights
do not require the State to spend money: if the State recognizes, for instance,
the freedom of movement, then, on a day-to-day basis, the State incurs no
expenses as you enjoy this human right. So too, if the State leaves you alone
with your thoughts, your expression or your political views, then this will, in
the normal run of events, require no expenditure from the State.

The same does not apply, however, with respect to economic, social and
cultural rights. In the event that the State acknowledges your basic right to
health care, or your human right to employment, this implies that the State
must take practical steps to ensure that these rights are fully available to you.
Here, though, the wish and the reality may be far apart. Because economic,
social and cultural rights require the State to spend considerable sums to
provide basic services, it is often the case that these rights are not realized in
practice.
With this consideration in mind, the United Nations and the OAS, while
promoting economic, social and cultural rights, acknowledge that the provision
of these rights may turn on the level of development of the country seeking to
provide these rights. This approach is inevitable, given the resource challenges
shared throughout the global South.

Subjective Factors
Sometimes, too, human rights may not be fully recognized because of
subjective considerations. About 45 years ago, the Jamaican Court of Appeal
decided the case of A.G.R..Byfield v. Edwin Allen (16 WIR 1), a matter
concerning whether the then Minister of Education Edwin Allen had, in effect,
discriminated against Mr. Byfield on the basis of the latters political opinion.
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The Court found in favour of Minister Allen, and thus denied that there
was untoward discrimination in the Ministers decision not to have Mr. Byfield
selected as the Head Teacher of the then new Trench Town Senior School. For
present purposes, it may be sufficient to note that this decision was a close
call, turning 2-1 in Allens favour at both first instance and on appeal. Much
turned, it seemed, on a subjective appreciation of the facts.

Within our schools, issues concerning human rights arise frequently

enough. The Jamaican Charter of Fundamental Rights and Freedoms includes
provisions that seek to ensure:
Equitable and humane treatment by any public authority (including, I
am sure, schools funded by the State);
Freedom from discrimination on ground of religion;
The right to freedom of religion; and
The right of every child to the protection required to be given to minors.
These stipulations seem clearly to suggest that schools must be especially
sensitive in their treatment of children, and they must be especially carefully
not to take measures that could be interpreted as discriminatory.

As in the

case of Byfield v. Allen, the final adjudication of the matter may turn on a
subjective appreciation of the facts, but, from the human perspective, the issue
should always turn on what is in the best interests of the child.

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Politicisation
Yet another obstacle on the road to the full recognition of human rights
concerns the politicisation of rights issues. Politicisation is not necessarily a
bad thing, for it merely indicates that the political process has been called
upon to address particular issues. In the area of human rights, however, it
may be problematic when human rights groups come to be identified
substantially with one political party.
When the membership of a particular human rights group is predominantly
of one political perspective, this may damage the cause of human rights; for,
the wider public looking on may come to the view that the positions of the
group are predetermined by the desire to score political points for their
political party.
But it may be that this is a risk that the human rights group is prepared to
take, and if so, then that will be their own self-inflicted wound.

The State,

however, should be careful not to discriminate against even the politically

motivated human rights group for, they too have their human rights.
At the same time, the State may, to be sure, publicly identify the political
biases of the human rights groups, as a matter of fairness and justice.

New Prison
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Finally, in the specific case of Jamaica, it may be time to redouble efforts to

promote and protect human rights. Speaking in the U.K. House of Commons
on June 23, 1999, Gerald Kaufman, a Labour MP, noted that:
One of Her Majestys inspectors of prisons went (to Jamaica) and reported
that the prison conditions were the worst that he had ever seen.
(www.parliament.uk, House of Commons, June 23, 1999).
To be frank, we really do not need to hear this from visitors. But, that said,
it is a matter of grave concern that Jamaica has fallen so far below basic
human rights standards in its treatment of prisoners.

We are the poster

country for bad prisons, even if we are inclined to believe that other countries
have worse conditions than we do.
In light of the conditions prevailing in Jamaican prisons, international
perceptions about those conditions, and Jamaicas human rights obligations,
the Government should accept post haste international offers for assistance to
construct a new facility. In respect of every offer, the devil will be in the details,
but, given the brutal, awful, nasty, destructive way we currently treat human
beings who have run afoul of the law, we should cut through the political
arguments and put up a new prison as a matter of urgency.
And the human rights bodies that are often in the vanguard of criticising
the Government about prison conditions (with good cause) should actively

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encourage the Government to accept the recent offer by the British Prime
Minister in respect of a new prison. Human rights issues do not usually
generate easy questions, but they require us to put the interests of human
beings uppermost in our minds.
Stephen Vasciannie is Professor of International Law at the University
of the West Indies, Mona. He is a former Jamaican Ambassador to the
USA and the Organization of American States, and has also served as a
Deputy Solicitor General of Jamaica.

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