Why Rights are Universal
In the wake of the vicious and inhuman acts committed in World War II, there was a general consensus within the international community that human rights needed to be better recognised and protected. Whilst nations had committed in principle to working together towards this end under the auspices of the United Nations, the United Nations Charter did not sufficiently set out these rights.
In an effort to address this deficiency, the United Nations General Assembly sought to create the first comprehensive statement of human rights for the world and, after much debate and discussion, the Universal Declaration was unanimously adopted by the General Assembly on 10 December 1948. The Universal Declaration consists of 30 articles and importantly, its recognition and acceptance has come to be accepted as a central tenet of membership to the international community. Indeed, as a number of new nations were created in the post-war period, there was a readiness to sign onto the Universal Declaration and the rights contained therein, which has further boosted the status of this first international human rights treaty. The Universal Declaration can thus rightly boast to be “universal” and is, for this reason, the most important document of its kind.
Whilst the Universal Declaration has undoubtedly raised the profile of human rights, it was essentially only an advisory declaration and did not establish a mechanism for enforcing these rights. The United Nations has gone onto discuss this need for several more decades; although within Western Europe, where there was a greater consensus on the precise definition of human rights, this enforcement mechanism was realised more quickly.
The Council of Europe, which was also established as part of the post-World War II reconstruction, using the Universal Declaration as a guide, produced a Convention for the Protection of Human Rights and Fundamental Freedoms, which came into force on 3 September 1953. In addition to the human rights themselves, the Convention significantly established several institutions to enforce the obligations entered into by contracting nations. The principal institution set up to assess alleged infringements of human rights protected by the Convention was the European Court of Human Rights. Now a contracting nation could bring an action against another contracting nation before the Court. Perhaps more importantly, it was also now possible for an individual to bring an action against a contracting nation before the Court. It should be noted that this significant remedy, referred to as the right of individual petition, was extended once more to the Cayman Islands in early 2006. The emergence of the Court as a framework for the collective enforcement of human rights; along with the later Protocol to the Convention which ensured that the Court’s jurisdiction was mandatory for all contracting nations; together represent a tangible and meaningful supplement to the assertion that human rights are universal.
Soon after its inception, the Convention provided a template for the human rights chapters in many of the newly independent Commonwealth countries. However, through the work of the Court, a wealth of case law has been generated that provides greater direction and clarity on the interpretation and application of the Convention rights. As a result, whilst the chapter on fundamental rights included in the most recent draft Constitution for the Cayman Islands encompasses all of the rights contained in the Convention, these rights are articulated in far greater detail to reflect much of the Court’s jurisprudence. Accepting some differences in construction, it is still evident that the human rights recognised in constitutions across the Commonwealth are, for the most part, similar; a fact that serves to further illustrate the universality of human rights.