CHAPTER 5

Do “Universal” Human Rights Always Apply? And Do they Apply Everywhere?

5.1 Do Poor Countries Have the Same Duties as Rich Countries under the Covenant?

The UN has decided that no country is too poor or undeveloped to respect, protect and fulfil human rights obligations. The fact that a country is poor is not a good excuse for it to avoid striving to ensure that everyone enjoys adequate food, health, education, housing, and so forth. The Covenant does authorise poor countries to take more time than rich ones to ensure that all of their people have access to improved social services (for example, better education and health care). A poor country is not expected immediately to ensure the same level of economic, social and cultural benefits that a rich country can afford. But even the poorest State Party is required by the Covenant to ensure that its people receive the highest level of Covenant rights that the country’s resources will permit.

The second paragraph in Article 2 of the Covenant says this:

“Each State Party . . . undertakes to take steps . . . to the maximum of its available resources . . . [to achieve] progressively the full realisation of the rights recognised in the present Covenant by all appropriate means . . . ”.

Paragraph 3 of Article 2 allows a certain leeway for less developed countries regarding the “economic” rights of foreigners (such as the right to work), but does not authorise limits on their social or cultural rights: “Developing countries, with due regard to human rights and their national economy, may determine to what extent they would guarantee the economic rights recognised in the present Covenant to non-nationals”.

Fuller attainment of a right may depend upon the availability of adequate financial and other resources. However, a lack of resources does not relieve a State Party of its obligation to ensure at least a minimum level of economic, social and cultural rights for all. This view has been expressed by the UN Committee on Economic, Social and Cultural Rights, in a document called a “General Comment”. General Comments (described more fully in Chapter 10) are guides produced by the CESCR to help States Parties to understand their obligations under the Covenant more clearly. General Comment No. 3, written in 1990, is called “On the Nature of States’ Obligations”. Its purpose is to help States to understand what they must do to comply with Covenant Article 2. It explains in practical terms that the concept of progressive realisation has limits; that in spite of resource constraints, States must ensure that at least minimal levels of each of the rights are met. General Comment 3 provides several examples of these minimum state obligations—for example, primary health care and primary education.

To help decide whether a State Party’s actions or failures to act may violate Covenant obligations, one can ask at least three questions:

1. Has the State taken the necessary steps right away to achieve its minimal essential obligations? For example, the State must ensure that no one dies from hunger—a minimum requirement of the right to food—and it must halt any discrimination in the way the benefits of each Covenant right are distributed.
2. Does the State lack the ability to take immediate or progressive action because of circumstances beyond its control?
3. Or is the government simply unwilling to try to fulfil its obligations, despite having resources available that would enable it to act positively?

5.2 Are Exceptions Made for States that Suffer from War or Natural Disasters?

If a State claims that it is unable to carry out its human rights obligations for reasons beyond its control, it has a duty to prove to the UN that this claim is true. For example, if a nursing home for elderly people is closed temporarily due to earthquake damage, that action might be beyond the control of the State. But if a State cancels an entire programme that assists poor elderly people, without substituting a new one, that action provides strong evidence that the State is unwilling to comply with its Covenant obligations. A violation of the Covenant has probably occurred.

5.3 Do Some Rights Apply in Some World Regions but Not in Others?

Some governments occasionally claim that certain human rights (often freedom of expression and freedom of association) are “foreign” and do not apply in their country or region. Rulers who make these claims may be supported by local military, business or religious elites, because denial of these rights may help all of them to maintain their power. When respect for particular democratic, legal or social rights is inconvenient for those in authority, they may argue that universal human rights are inappropriate. They might exaggerate the extent to which international human rights conflict with religious beliefs, or with national or regional “values”.

Yet at a series of world conferences organised by the UN during the 1990s involving almost every nation, all participating governments confirmed that human rights are universal, belonging to everyone, everywhere. During these global gatherings, governments from every part of the world continually promised to promote universal human rights more effectively, including those rights that are guaranteed by the Covenant. The locations and main themes of some of these Conferences were: Rio de Janeiro, Environment and Development, 1992; Vienna, Human Rights, 1993; Cairo, Population, 1994; Copenhagen, Social Development, 1995; Beijing, Women, 1995; Istanbul, Housing, 1996. These world conferences produced detailed recommendations and plans of action aimed at improving the lives of people. Some NGOs have incorporated these lists of recommendations and commitments by States into their campaigns and lobbying work.

The ways that universal human rights are applied in a country must be sensitive to regional and local cultures and traditions. Human rights law should take precedence, however, when a custom or tradition involves serious human rights violations. Examples include slavery, torture and piracy, which in the past were practised and even approved of in many cultures and countries. Customs that seriously violate the human rights of women, children, indigenous peoples or anyone else should not override universally agreed human rights.

The work of community-based human rights groups in every part of the world shows that ordinary people regard human rights as important. Values that underlie human rights can be found in virtually every culture and civilisation, religion and philosophical tradition. On the other hand, competing customary values are present in many cultures. In some countries, a continuing dialogue may be needed, involving human rights experts and activists who want to respect and preserve religious and cultural beliefs as much as possible, but in a manner that is compatible with universal human rights.

Serious efforts should be made to apply and interpret human rights in ways that respect local customs and beliefs, so long as the efforts do not undermine or destroy the enjoyment of a right. But people can and do decide to change aspects of their own cultures. Humans like to have the freedom to choose which new ideas to adopt and to decide which aspects of tradition they wish to retain. We note that universal human rights, such as those in the Covenant, are now sought and supported by peoples from all over the world.

Because of the political climate in some countries, people advancing human rights may decide not to use the language of human rights in much of their advocacy. Many who work in development assistance programmes, for example, in the education field, in health care, or as lawyers, may instead choose words and arguments based on good development practices or on concepts of fairness and human dignity.