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: “(to) 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 UN 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.

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 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 one’s broad perspective on human rights issues. If, for instance, you believe human rights to be God-given 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 recognised 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 (eg the right to vote, or freedom of expression) should be given greater respect than economic and social rights (eg 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.

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 Europe’s 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 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 Jamaica’s 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 man’s 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 recognises, 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 realised 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 recognised because of subjective considerations. About 45 years ago, the Jamaican Court of Appeal decided the case of AGR 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 latter’s political opinion.

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 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 Allen’s 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.

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

Finally, in the specific case of Jamaica, it may be time to redouble efforts to promote and protect human rights. Speaking in the UK House of Commons on June 23, 1999, Gerald Kaufman, a Labour MP, 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.” (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 Jamaica’s 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 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.