Opinionista

The UN at 75: With human rights under siege and grand corruption on the rise, does the world body have enough teeth?

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Paul Hoffman SC is a director of Accountability Now. He was lead counsel in the Glenister litigation.

Global corruption has now become a $1-trillion-a-year industry. The UN Declaration of Human Rights, formulated 75 years ago, singles out tyranny and oppression as enemies of human rights, with no express reference to corruption. Current levels of corruption are such that they present a threat to peace and security, which needs to be countered.

It is now 75 years since the victorious powers gathered after World War 2 in San Francisco to form the United Nations Organisation (UNO). Celebrations of the milestone of 75 years are tempered by questions around the effectiveness of the organisation in the efforts to make the tenets of the 1948 Universal Declaration of Human Rights the lived reality of the population of planet Earth.

There has been a great deal of change in the world in the last 75 years. As the UNO was formed, the French and the Germans were barely on speaking terms; today they are the leading nations of the European Union with Germany reunified. In Africa, colonialism was the order of the day, now there are no colonies in Africa. The Asian Tigers were still kittens and fresh alignments such as BRICS and the Non-Aligned Movement were very much in the future when the UNO was established.

The UNO commitment to the realisation of human rights as the way to peace that is secure, progress that is sustainable and prosperity that is shared has been tested on many fronts. The rise of grand corruption and kleptocracy (very much a human rights issue as these phenomena amount to theft from the poor) and other threats to and violations of human rights still plague the world today.

On 18 September 2020 the editors of World Politics Review posed some of the hard questions:

“Globally, human rights remain under assault, whether by populist movements desperate to gain power or authoritarian governments eager to maintain it. Technology has opened up new frontiers for curbing people’s ability to express and share dissenting ideas. And broad assaults are under way on institutions like the International Criminal Court, which was established not only to offer recourse for the victims of rights violations, but to establish an international human rights benchmark. Instead, respect for human rights is being replaced by a dangerous intolerance.

“Around the world, populist authoritarians have built their movements by demonising minorities. In Brazil, for instance, President Jair Bolsonaro has revelled in his provocations, calling into question women’s rights as well as those of the LGBT and indigenous communities. In Poland, incumbent President Andrzej Duda recently ran for re-election – and won – on an explicitly anti-LGBT platform.

“Meanwhile, in China, the central government is carrying out an organised campaign in Xinjiang to strip the predominantly Muslim ethnic Uighur population of its cultural identity, including the use of concentration camps and forced labour. And in Venezuela, the government of President Nicolás Maduro was recently accused by investigators for the UN Human Rights Council of having engaged in crimes against humanity, including targeting political dissenters with arbitrary detention, torture and extra-legal killings.

“What are the most effective ways to protect human rights, and what additional steps might be taken? What role will technology play in both preserving and circumscribing human rights? And how will changes in the international order and global balance of power affect the human rights landscape?”

(It must be borne in mind that a failure to establish and maintain proper anti-corruption machinery is a human rights issue and has been at least since the SA Constitutional Court so ruled in the Glenister litigation in 2011.)

South Africa is not immune to these global trends. The disruptiveness of the EFF, led by fascist firebrand Julius Malema, is well documented. Xenophobia, or perhaps more accurately Afrophobia, is rife. The ability of the state to respect, protect, promote and fulfil the rights guaranteed to all in the state-of-the-art Bill of Rights that is Chapter Two of the Constitution is questionable after the ravages of State Capture in the Zuma era and the economic side effects of the pandemic currently sweeping the world, bringing hubris to governments everywhere.

South Africa has close connections to the establishment of the UNO and the adoption of the Universal Declaration of Human Rights. The ANC, then a liberation movement, sent a delegation and enjoyed great success in turning the world against apartheid. The Allied powers that were victorious in World War 2 saw off the threat to human rights posed by the Axis forces of Germany and Japan. The focus on protecting human rights that originated in the holistic thinking of Jan Smuts (then SA prime minister and a field marshall in the Allied forces) and others was perhaps the major and potentially the most lasting feature of the deliberations of the founders of the UNO.

Certainly, the UNO political structure has become dated with its five permanent members of the Security Council (none of them African, none of them Muslim), their veto powers and the lesser status of the General Assembly. These vestiges of the spoils of victory in World War 2 have become antiquated in the world order that has developed over the last 75 years.

The purpose of setting up the UNO was to secure peace and stability in the world. The horror of war, the death and suffering that is engendered by war and most of all the indignity of violent conflict impelled the representatives of all nations to seek a better world. The thinking behind the establishment of the UN Charter in the course of 1945 is revealed in its Preamble:

  •         To save succeeding generations from the scourge of war, which twice in our lifetime has brought untold sorrow to mankind; and
  •         To reaffirm faith in fundamental human rights, in the dignity and worth of the human person, in the equal rights of men and women and of nations large and small; and
  •         To establish conditions under which justice and respect for the obligations arising from treaties and other sources of international law can be maintained; and
  •         To promote social progress and better standards of life in larger freedom.

One of the first projects of the UNO was to draft and agree on the terms of the Universal Declaration of Human Rights. The text was prepared by representatives with different legal and cultural backgrounds from all regions of the world. The Declaration was proclaimed by the United Nations General Assembly in Paris on 10 December 1948 (General Assembly resolution 217A) as a common standard of achievements for all peoples and all nations. It sets out, for the first time, fundamental human rights to be universally protected and it has been translated into more than 500 languages.

The Preamble of The Declaration is a vivid reflection of the philosophy that motivated its adoption:

“Whereas recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world,

“Whereas disregard and contempt for human rights have resulted in barbarous acts which have outraged the conscience of mankind, and the advent of a world in which human beings shall enjoy freedom of speech and belief and freedom from fear and want has been proclaimed as the highest aspiration of the common people,

“Whereas it is essential, if man is not to be compelled to have recourse, as a last resort, to rebellion against tyranny and oppression, that human rights should be protected by the rule of law,

“Whereas it is essential to promote the development of friendly relations between nations,

“Whereas the peoples of the United Nations have in the Charter reaffirmed their faith in fundamental human rights, in the dignity and worth of the human person and in the equal rights of men and women and have determined to promote social progress and better standards of life in larger freedom,

“Whereas Member States have pledged themselves to achieve, in cooperation with the United Nations, the promotion of universal respect for and observance of human rights and fundamental freedoms,

“Whereas a common understanding of these rights and freedoms is of the greatest importance for the full realisation of this pledge,

“Now, Therefore THE GENERAL ASSEMBLY proclaims THIS UNIVERSAL DECLARATION OF HUMAN RIGHTS as a common standard of achievement for all peoples and all nations, to the end that every individual and every organ of society, keeping this Declaration constantly in mind, shall strive by teaching and education to promote respect for these rights and freedoms and by progressive measures, national and international, to secure their universal and effective recognition and observance, both among the peoples of Member States themselves and among the peoples of territories under their jurisdiction.”

It can be seen from these fine words that while tyranny and oppression are singled out as enemies of human rights, there is no express reference to corruption as a factor in the project of rolling out universal human rights so as to promote equality and dignity. Invoking the protection of the rule of law is as close as it gets. The need to address this gap is now pressing. The current levels of corruption are such that they present a threat to peace and security that ought to be countered. According to some estimates the level of corrupt activity in the world accounts for losses of more than $1-trillion every year.

Maja Groff and Joris Larik of the Stimson Centre have advocated changes in a paper published on 14 September 2020 to mark the UN75 milestone. Its abstract is instructive:

“A key strategic measure of the international community needed over the next decade is the enhancement of the international rule of law in order to reinforce multilateralism and enhance global governance capabilities. A project to significantly upgrade the existing international legal architecture should be launched upon the occasion of the UN’s 75th anniversary, making good on core UN Charter and related international commitments.

“In this paper, we propose an ambitious, yet realisable ‘International Rule of Law Package’ of reforms meant to significantly enhance the integrity of the international governance system. Key international justice institutions – the International Court of Justice, the International Criminal Court, and the UN’s Human Rights architecture – should be strengthened in terms of both their jurisdiction and effectiveness.

“In addition, the UN75 anniversary represents an opportunity to pave the way for new institutions to fill existing institutional gaps. Hence, we support the creation of an international anti-corruption court as well as an international judicial training institute to ensure the requisite capacity, skills, and knowledge across international courts.

“The international community, on this historic occasion, should begin focused discussion on such an international rule of law reform package with the goal of modernising and making more robust and legitimate the core international governance architecture, fitting it to the range of global challenges it now confronts.”

As the President of South Africa, Cyril Ramaphosa currently also leads the African Union. It is appropriate that he give attention to the suggestions made in the paper in the African context as he is already championing the strengthening of institutions at the domestic level in accordance with the tenets of UN Sustainable Development Goal #16. The rapid increase in the population of Africa, both in gross numbers and as a proportion of the world population, and its increasingly important role in world affairs, justify a well-focused intervention of the kind presaged by Groff and Larik. DM

 

 

 

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