You are on page 1of 13


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

These two documents – the ICCPR and the ICESCR – are core treaties within the United Nations system and. So. Exemplars In addition to affirming core rights at the international level. freedom of movement. To take the case of Jamaica.At the end of this debate. These rights. for example. conscience and religion. equality before the law. the International Covenant on Civil and Political Rights (the ICCPR). the United Nations presented two basic treaty instruments for consideration by States. freedom of opinion and expression. now constitute the Charter of 2 . constitute the foundation for modern international human rights law. and numerous other rights and freedoms. freedom of thought. these instruments serve as exemplars for States that wish to incorporate human rights into their national laws. when read along with the Universal Declaration of Human Rights. and the International Covenant on Economic. now amended and enhanced by additional rights. the presumption of innocence. namely. Social and Cultural Rights (the ICESCR). 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 instruments affirm the right to life. liberty and security of person.

From among the numerous examples in this category. The post-war years have also witnessed recognition of human rights within regional groupings. have adopted the American Convention on Human Rights (1969). and the Convention on the Rights of Persons with Disabilities. the International Convention on the Elimination of all Forms of Discrimination against Women.Rights and Freedoms. Obstacles 3 . Human rights instruments have also concerned themselves with specific issues and groups. while African States have taken up the African Charter on Human and Peoples’ Rights (1981). countries within the Organization of American States. our guiding rules on the rights of persons in the country. some European adopted the European Convention on Human Rights (1950). reference may be made to the International Convention on the Elimination of All Forms of Racial Discrimination. including Jamaica. the Convention on the Rights of the Child. Similarly. Shortly after the United Nations presented the Universal Declaration of Human Rights.

But. If. though human rights have received increasing respect from States since World War II. but. the starting-point in addressing them may determine one’s broad perspective on human rights issues. then you may be inclined to the view that human rights are immutable. In the alternative. But if. significant obstacles remain on the road to the full achievement of these rights. 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. do they come from the Christian God. you believe human rights to be Godgiven entitlements. in contrast. you argue that the recognition of human rights is actually a secularist construct. that they are. if so. in some instances. or from the divine creator of another religion. it is open to argument that the conceptual foundations of the modern human rights project lack firmness and precision. for instance. In the first place. and indeed you may believe that. and have always been fixed by God. 4 . then you may consider that these rights may evolve as society changes. undoubtedly correct answer to these questions. Why do we all have a claim to basic human rights? Are human rights entitlements presented by an omniscient Supreme Being to humanity? And.

g. generally speaking. however.human rights must be in the vanguard. and achieve a life of independence and self-fulfilment. The then Soviet Union.g. and they had a particular perspective on human rights. in the ascendancy. the right to vote. or freedom of expression) should be given greater respect than economic and social rights (e. the so-called negative rights. Western Powers tended to regard civil and political rights as constituting the main rights to be recognized in practice. Western Bias? A second conceptual problem concerns the putative Western-bias in human rights issues. the Western Powers were. this perspective was open to challenge on ideological grounds. Specifically. The theory was that when the State hold back. maintained that there was no convincing reason to assume that civil and political rights (e. During the Cold War. the individual will come forward. for instance. the Western Powers and allies gave their firmest support to rights that required governments to exercise restraint. the right to employment. 5 . bringing about improvements in society in the name of personal dignity. When the main human rights instruments were adopted following World War II. or the right to food). Thus.

whether human rights must be universally accepted as the same everywhere. Universal Rights? Arguments about the Western bias in human rights also tend to merge into another conceptually question. argued that some of the underlying assumptions of Western human rights rules were culturally inappropriate when applied in some parts of the world. individualistic orientation of human rights was also challenged by some Asian States. And they make every effort to convince the international community that such is the case. 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. and it stands at the heart of a number of practical problems in human rights law today.The Western. 6 . This debate – universality of human rights versus relativism – has long been a staple concern of human rights literature. which tend to show greater respect for group rights versus individual rights. These latter States. namely. or whether different cultures are entitled to have different human rights. The European critics start from a universalistic premise: the death penalty is always and everywhere inhuman and barbaric.

Jamaica had also adopted a similar approach to the question of flogging and whipping. the Committee spoke in firm. inhuman and 7 . corporal punishment constitutes cruel. This relic of slavery was subject to considerable criticism from international bodies. Jamaica -. for a variety of socio-cultural reasons.On the other hand. in the matter of the death penalty. My point for the moment is not to reargue the pros and cons of the death penalty. until the passage of abolition legislation in 2013. including the United Nations Human Rights Committee. Jamaica was heard by the United Nations Human Rights Committee. it is just to point out that. Jamaica has adopted a relativistic perspective in contrast to Europe’s universalism. when the case of Errol Pryce v. Jamaica retained flogging and whipping as possible forms of punishment for certain crimes.perhaps without even articulating the matter in these terms – starts from a relativistic position. Thus. it may be all right for some societies to abolish the death penalty. in 2004. In brief. Flogging and Whipping For quite some time. but we will retain it. however brutal it may be. universalistic language: “(I)rrespective of the nature of the crime that is to be punished. For us.

Communication No. then. then this will.degrading treatment or punishment…” (UN Human Rights Committee. some civil and political rights do not require the State to spend money: if the State recognizes. your expression or your political views. in effect. if the State leaves you alone with your thoughts. Resource Constraints Another set of obstacles to the full recognition of human rights arises from resource constraints. for instance. When Minister of Justice Mark Golding steered the Law Reform (Flogging and Whipping) (Abolition) Act through the Senate in 2013. he was. the freedom of movement. He was also indicating that. It was time for a change. on a day-to-day basis. So too. Jamaica was prepared to join the international community in banning this manifestation of man’s inhumanity to man. the State incurs no expenses as you enjoy this human right. 8 . 793/1998). in the normal run of events. our national peculiarities. At the broadest level. abandoning Jamaica’s view that our national life. and Minister Golding deserves credit for doing the right thing. required us to flog and whip grown men as punishment. on this matter at least. require no expenditure from the State.

G. Subjective Factors Sometimes. too. though. however. Byfield on the basis of the latter’s political opinion.Byfield v. while promoting economic. it is often the case that these rights are not realized in practice. acknowledge that the provision of these rights may turn on the level of development of the country seeking to provide these rights. Because economic.The same does not apply. social and cultural rights require the State to spend considerable sums to provide basic services. This approach is inevitable. discriminated against Mr. Here. With this consideration in mind. the Jamaican Court of Appeal decided the case of A. a matter concerning whether the then Minister of Education Edwin Allen had. with respect to economic. 9 . this implies that the State must take practical steps to ensure that these rights are fully available to you. social and cultural rights. In the event that the State acknowledges your basic right to health care. social and cultural rights. human rights may not be fully recognized because of subjective considerations. in effect.. About 45 years ago. the United Nations and the OAS. or your human right to employment. given the resource challenges shared throughout the global South. the wish and the reality may be far apart. Edwin Allen (16 WIR 1).R.

Within our schools.  Freedom from discrimination on ground of religion. on a subjective appreciation of the facts. The Jamaican Charter of Fundamental Rights and Freedoms includes provisions that seek to ensure:  Equitable and humane treatment by any public authority (including. turning 2-1 in Allen’s favour at both first instance and on appeal. 10 . Byfield selected as the Head Teacher of the then new Trench Town Senior School. I am sure.The Court found in favour of Minister Allen. and thus denied that there was untoward discrimination in the Minister’s decision not to have Mr. schools funded by the State). For present purposes. As in the case of Byfield v. the issue should always turn on what is in the best interests of the child. from the human perspective. issues concerning human rights arise frequently enough. and they must be especially carefully not to take measures that could be interpreted as discriminatory. it may be sufficient to note that this decision was a close call.  The right to freedom of religion. These stipulations seem clearly to suggest that schools must be especially sensitive in their treatment of children. Much turned. Allen. but. the final adjudication of the matter may turn on a subjective appreciation of the facts. it seemed. and  The right of every child to the protection required to be given to minors.

this may damage the cause of human rights. should be careful not to discriminate against even the politically motivated human rights group – for. When the membership of a particular human rights group is predominantly of one political perspective.Politicisation Yet another obstacle on the road to the full recognition of human rights concerns the politicisation of rights issues. they too have their human rights. the State may. then that will be their own self-inflicted wound. The State. In the area of human rights. it may be problematic when human rights groups come to be identified substantially with one political party. and if so. however. publicly identify the political biases of the human rights groups. to be sure. for it merely indicates that the political process has been called upon to address particular issues. But it may be that this is a risk that the human rights group is prepared to take. for. New Prison 11 . At the same time. 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. as a matter of fairness and justice. however. “Politicisation” is not necessarily a bad thing.

In respect of every offer. We are the poster country for bad prisons.parliament. we really do not need to hear this from visitors. House of Commons on June 23. destructive way we currently treat human beings who have run afoul of the law. given the brutal. it is a matter of grave concern that Jamaica has fallen so far below basic human rights standards in its treatment of prisoners. But. 1999). but.K. And the human rights bodies that are often in the vanguard of criticising the Government about prison conditions (with good cause) should actively 12 . In light of the conditions prevailing in Jamaican prisons. nasty.” (www. it may be time to redouble efforts to promote and protect human rights. noted that: “One of Her Majesty’s inspectors of prisons went (to Jamaica) and reported that the prison conditions were the worst that he had ever seen.Finally. 1999. international perceptions about those conditions. even if we are inclined to believe that other countries have worse conditions than we do. Gerald Kaufman. the devil will be in the details. Speaking in the U. in the specific case of Jamaica. a Labour MP. To be frank. the Government should accept post haste international offers for assistance to construct a new facility. and Jamaica’s human rights obligations. that said. we should cut through the political arguments and put up a new prison as a matter of urgency. June 23. House of Commons.

but they require us to put the interests of human beings uppermost in our minds. He is a former Jamaican Ambassador to the USA and the Organization of American States. Stephen Vasciannie is Professor of International Law at the University of the West Indies. 13 . Mona. and has also served as a Deputy Solicitor General of Jamaica. Human rights issues do not usually generate easy questions.encourage the Government to accept the recent offer by the British Prime Minister in respect of a new prison.