Seventy Years of Aspiration: Rights Charters and the Universal Declaration of Human Rights
It was a gathering of activists masquerading as deep thinkers. Ostensibly, it was to celebrate seven decades of the Universal Declaration
of Human Rights, one devised in the aftermath of a traumatised world and easier to do so for that fact. But this
gathering on Lonsdale Street, Melbourne which featured irritatingly optimistic speakers showed the lamentable weaknesses
in the human rights project. Human rights continues to be ever susceptible to personalisation and haggling, a
manipulated concept that all too often serves the select.
Human rights remains as much fashion and political statement. In Australia, the idea that such rights have truck with
the political classes is a very flimsy notion indeed. A country that praises itself constantly as a paragon of freedoms
and liberties is bound to find common ground with those people’s democracies who insist on keeping political prisoners
and confining individuals indefinitely. Australia’s record on matters regarding the UDHR remains abysmal: indefinite
detention regimes outsourced and funded on tropical Pacific islands; permitted, open-ended control regimes for those who
have served their time in prison yet still remain a matter of interest to the state; and various infractions committed
after September 11, 2001 in anti-terrorist operations.
Rights documents, be they the universal declaration itself or a charter that might embed those provisions, is also
politically difficult to sell. When Prime Minister Kevin Rudd received the report from Father Frank Brennan on having a
Human Rights Act he insisted, rather uncharitably, that he had been served a shit sandwich. (Scatological references
were a favourite theme with him.) Despite going through the exercise of having such a consultation committee, the
project for a human rights act would be shelved; the sense that Australia remains resistant to such abstract notions as
free speech and privacy remains strong. Many thanked their stars that the decision by Rudd had essentially set back the
discussion of rights in Australia by a generation.
The Charter of Rights movement is yet another grouping of human rights activists and lawyers in Australia attempting to
encourage the country’s citizens to embrace something tantamount to a Bill of Rights. It uses the bland measures of
advertising and mild condescension, more in the hope that citizens will succumb to the sheer power of persuasion.
But even these advocates cannot, nor want to see the implications of having a firm, entrenched civil and political
rights document immune from the predations of Parliament. Shen Narayanasamy, Human Rights Campaign director at the lobby
group GetUp!, managed a sneer at the idea of free speech, largely because it was the sort that might be embraced by affronted conservatives
and self-satisfied bigots.
Lee Carnie of the Human Rights Law Centre, a fellow panellist, argued that any charter would necessarily have to be subordinate to the wishes of Parliament. The “legislative dialogue
model”, as it is termed, still privileges the role of that all-powerful, and often erratic body, one that can imprison,
separate from the judiciary, any citizen or resident who supposedly impugns and impairs its functions. Parliament,
notably one run by majoritarian instincts, remains a constant threat to the liberties of the citizenry.
Such views seem to come from the harsh bottlebrush of Australian suspicion: we have rights, but these are revocable by
the whim of the legislature; we have rights, but these are susceptible to modification by judicial and parliamentary
fiat. The result is a rather meagre appreciation for the very idea of rights, one stifled by process.
What, then, are Australians left with? The Universal Declaration, or what lawyers suggestively term “soft law”, comes to
mind. As “soft” law, it should not be treated as irrelevant and without utility; its crawling influence has been
significant and long lasting, even if removed from any direct enforceable mechanism. It is not the stuff to make black
letter lawyers swoon; in some cases, it causes them considerable bowel disruptions of discomfort.
In the words of Michelle Bachelet, UN High Commissioner for Human Rights, “It has withstood the tests of passing years, and the
advent of dramatic new technologies and social, political and economic developments that its drafters would have
foreseen.” As the United Nations information site claims, “the UDHR has inspired a rich body of legally binding international human rights treaties.” With confidence the
organisation insists that “more than 80 international human rights treaties and declarations, a great number of regional
human rights conventions, domestic human rights bills and constitutional provisions” have been birthed in that vortex of
inspired drafting.
Scepticism and criticism of it remain. It has been accused of ethnocentrism, Western-oriented tendencies and
presumptuousness. Ajamu Baraka sees the document as nobly inspired but hopelessly applied, historically bound and shackled to bad habits of history. “The historic project temporarily diverted by the war as a
result of the German bringing the horrors colonial domination unleashed by the European invasion of what become the
‘America’s’ in 1492, back to Europe, and applied to other Europeans.” (He avoids any mention of Japanese brutalities and
the World War undertaken in the East which had its own variant of domination at play.) His suggestion is one of
decolonising the declaration.
Aspirational gloss has always been central to such a document; application continues to be, if not poor, then
non-existent in some cases. We are left with the imperfect callings of soft law, one that seeks to move and germinate,
rather than becoming, in of itself, an enforceable document it can never hope to be.
Dr. Binoy Kampmark was a Commonwealth Scholar at Selwyn College, Cambridge. He lectures at RMIT University, Melbourne.
Email:bkampmark@gmail.com
[1] Michelle Bachelet, “70th Anniversary of the Universal Declaration of Human Rights,” Office of the High Commissioner,
Statement, Dec 7, 2018, https://www.ohchr.org/en/NewsEvents/Pages/DisplayNews.aspx?NewsID=23983=E
ends