So which is the most important?

Transcription

1 Sixty years of the United Nations Universal Declaration of Human Rights So which is the most important? Sixty years of the United Nations Universal Declaration of Human Rights Jubilee booklet, jointly published by the Ministry of Integration and Gender Equality and the Ministry for Foreign Affairs

2 Layout: Ministry for Foreign Affairs, Press, Information and Communication Department Photos: Maria Friberg, courtesy Galleri Charlotte Lund, Stockholm Printed by: EDITA, Västerås, 2008 ISBN: Article no: Telephone (switchboard): The booklet can be downloaded from The Swedish Government website:

3 So which is the most important? Jubilee booklet, published by the Ministry of Integration and Gender Equality and the Ministry for Foreign Affairs

4

5 Contents Much has changed but the fundamental ideas are the same - Carl Bildt and Nyamko Sabuni... 5 A feeling s throw from the precipice Kristina Lugn... 6 The first UN declaration on the rights of the individual... 8 The foundations for freedom, justice and peace Similar protection systems throughout Europe Human rights in Sweden Dialogue promotes understanding and respect Religions must command respect rather than demand it Asma Jahangir Not so stupid as to claim that my way is the only way Jonas Gardell The United Nations Universal Declaration of Human Rights A prerequisite for commitment Great danger that we create truths that fail to stand up to scrutiny - Hans Blix We can, of course, make use of our right to contradict Thomas Hammarberg Rare for motorists who have exposed others to danger to cite freedom of movement in their defence Martin Scheinin So which is the most important? I hope I never need to choose Elisabet Fura-Sandström The common theme no distinction The principles must be reaffirmed Mary Robinson The equal value of all people is often followed by a little but - Hans Ytterberg Human rights conventions Glossary... 45

6 4 Photo: Maria Friberg

7 Much has changed but the fundamental ideas are the same The United Nations General Assembly adopted the Universal Declaration of Human Rights on 10 December The Declaration established a set of common basic values both with regard to the view of human beings and to the relationship between the state and the individual. It also set standards for human rights, which take precedence over political, economic, cultural and religious differences. Now that the Universal Declaration is sixty years old, we want to emphasise once again that these fundamental norms are universal and binding for all the world s states. All states have an obligation to safeguard the equal value and rights of all people. Sweden must be a clear voice for human rights in the world. Because of this, we are giving priority to human rights work during our Chairmanship of the Committee of Ministers of the Council of Europe in 2008 and our EU Presidency in At the national level, our long-term objective is to ensure full respect for human rights in Sweden. Much has changed in the sixty years of working to realise the Universal Declaration. Much has clearly improved, but the picture is not entirely positive. Nor does everyone always see the same picture. In this booklet, a number of people from Sweden and other countries give their highly personal views on various articles of the Universal Declaration. They have written about Article 2 on equal treatment, Article 18 on freedom of worship and Article 19 on freedom of expression. These are all fundamental human rights, and they are as burningly topical today as they were sixty years ago. Carl Bildt Minister for Foreign Affairs Nyamko Sabuni Minister for Integration and Gender Equality 5

8 People live only a feeling s throw from the precipice. All of us live only a thought leap from the Big Dipper. I now find myself only a blow kiss from the funeral parlour. With me I have a child who is calling from all the corners of the world. Kristina Lugn Member of the Swedish Academy (Goodbye, Have a Good Life! 2003) 6

9 Photo: Maria Friberg 7

10 The first UN declaration on the rights of the individual All human beings are born free and equal in dignity and rights. This is a firmly established human rights principle. It applies throughout the world, irrespective of country, culture or context. Human rights are rights that states, through international agreements, must guarantee individual people. These rights serve to limit the state s power over the individual. The state and the entire public sector are responsible for promoting and protecting these rights. For this reason, every right of the individual imposes an obligation on the state. Human rights cover many aspects of life. Their purpose is to enable everyone to live a decent life, and they include rules about people s right to life, their rights to their own thoughts and religious beliefs, the protection of the family, freedom from torture and slavery, the right to education, equality, freedom of expression and the right to take part in the management of their countries. the experiences of the Second World War led to the emergence of the idea, among the UN member countries, that the international community must assume joint responsibility for the human rights of the individual. The promotion of human rights is therefore one of the UN s objectives and the UN is one of the world s

11 most important actors for implementing and monitoring human rights. The General Assembly adopted the Universal Declaration of Human Rights on 10 December It is a unique international document. It was the first declaration about the rights and freedoms of the individual to be adopted by the United Nations. The Declaration establishes that the rights apply to everybody, irrespective of race, skin colour, sex, language, religion, political opinion or social status. This is stated in Article 2 of the Declaration. Three of the writers contributing to this brochure discuss what this has meant for human rights work internationally, in Europe and in Sweden.

12 The foundations for freedom, justice and peace The world has changed over the past sixty years since the adoption of the Declaration. But the ideals that inspired those who drew up the guidelines for the work still apply today. The Universal Declaration has served as a source of inspiration for the human rights conventions that have subsequently been drawn up. The introduction, describing the purpose and objectives of the Declaration in general terms and as general principles or values, reads as follows: 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, 10

13 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 co-operation 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 realization 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. 11

14 Similar protection systems throughout Europe Alongside the development of UN systems for the protection of human rights, similar regional systems have also emerged. The Convention for the Protection of Human Rights and Fundamental Freedoms was adopted in 1950, one year after the establishment of the Council of Europe. Today all the member states of the Council of Europe have acceded to the Convention and the Council of Europe monitors its compliance in the member states. States obligations to live up to their commitments can be examined in an independent court, the European Court of Human Rights, in Strasbourg. Over time, the Convention has been extended through additional protocols. The rights in the Convention and additional protocols include the right to life, a prohibition against torture, the right to freedom and personal safety, the right to a fair trial, the right to respect for private and family life, freedom of thought, conscience and worship, freedom of expression and association, the right to take part in meetings, prohibitions against discrimination, the right to education and the right to the protection of property. the european union names, as one of its purposes, the promotion of respect for the dignity of human beings, freedom, democracy, equality, 12

15 the principle of the rule of law and respect for human rights. Sweden wants to help to develop EU tools to promote human rights and will also work actively to promote increased transparency in these efforts. During its Presidency of the EU in autumn 2009, Sweden will act to further deepen joint efforts for human rights, both internally and externally. Several issues that are part of the internal competencies of the EU involve human rights. The EU Agency for Fundamental Rights has existed since The purpose of this independent agency is to serve as an expert body on fundamental rights issues. The Agency is to support the EU Institutions and Member States to enable them to take more thorough and extensive account of the fundamental rights enshrined in the EU Charter. When the Treaty of Lisbon enters into force, this Charter of Fundamental Rights will become legally binding for the EU institutions and member countries when they apply EU legislation and regulations. This will create clearer protection of rights such as freedom of expression, freedom of worship and the prohibition of discrimination. 13

16 Human rights in Sweden Sweden has undertaken to comply with most of the conventions on human rights drawn up in the UN and the Council of Europe. Sweden is therefore obliged to promote and protect the various rights in the country. The Government and government agencies have the primary responsibility for ensuring that human rights are respected. But the public sector as a whole, i.e., municipalities, county councils and courts, are also responsible. Realisation of human rights is often a matter of whether a government has taken sufficient action via legislation, education, social support and other measures. The state must establish the responsibilities of, and restrictions on various actors that apply in society and must, of course, combat violations of these rights. Human rights are reflected in large parts of the Swedish legal system but they are often not clearly visible. The protection of these rights is prescribed in our Constitution, in laws and regulations. in a national action plan for Human Rights (Government Communication 2005/06: 95), the Government adopts a coherent approach to human rights issues. The long-term objective is to ensure full respect for human rights in Sweden. The Government has also established a Delegation for Human Rights in Sweden. Its func- 14

17 tion is to support government agencies, municipalities and county councils in their endeavours to ensure full respect for human rights in their activities. There are several other important actors, such as the various anti-discrimination ombudsmen and NGOs. Protection against discrimination in Sweden has been strengthened in a number of respects through the new anti-discrimination act and the forthcoming incorporation of the different anti-discrimination ombudsmen into a single agency, responsible for all forms of discrimination. Among other things, discrimination on grounds of age and transgender identity or expression will become a criminal offence. 15

18 Dialogue promotes understanding and respect Like freedom of expression, freedom of worship is a human right. Everyone has the right to a belief and to practise it. In recent years, the debate on freedom of expression and freedom of worship has intensified, both internationally and in Sweden. This has had farreaching consequences in many countries, at both the political and economic levels. Individuals have sometimes been subjected to violence and harassment. Freedom of worship is one of the key human rights. Individuals share the right to profess and practise their religion or belief. Freedom of worship also means that individuals are entitled to change religious beliefs, or not to have any beliefs at all. An open dialogue on these issues internationally and in Sweden, across regional and religious borders, promotes understanding and respect from all sides. 16

19 Photo: Maria Friberg 7

20 Religions must command respect rather than demand it Article 18 of the Universal Declaration of Human Rights remains, even today, a badly kept promise. A number of societies are still not convinced that freedom of thought, conscience and religion includes the freedom to change one s belief or indeed not to have one. Criticism of religions rather than advocacy of religious hatred are denounced with greater zeal and passion. The level of tolerance for freedom of religion or belief as well as for freedom of expression is rapidly decreasing. In my experience, both freedoms are central in promoting an environment for greater liberty and creativity. THERE ARE SEVERAL misconceptions about religiosity, too. Often, leaders of public opinion link religious intolerance to poverty. In other words, they presume that the poor remain in homogenous surroundings, have little tolerance and are quick to imbibe extreme religious views. This assumption has no basis. Poverty is a curse and is dreaded for a number of reasons but also because those trapped into it are more vulnerable to exploitation often against their better sense. Similarly, there are numerous examples where the under-privileged are exploited, abused and misused in the name of religion. A prime example is the thousands of so-called religious fighters, being prepared to fight jihad often with their bare bodies. The leadership remains well protected and, with notable exceptions, their own children are kept 18

21 Article 18 Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance. off the battle ground. Stereotypes, both positive and negative, are misleading too, e.g. portraying all Muslims as extremists and all Christians as liberals. Religions and beliefs are about seeking spiritual truth, yet expressing the true impression of religions and beliefs is tough. The space for discourse on religions and beliefs has shrunk. In some societies the slightest denunciation of religiosity is dangerously risky and in many others, highly controversial. Religions must command respect rather than demand it and this approach, in my view, would pave the way for tolerance and ultimately for freedom of religion or belief. Asma Jahangir UN Special Rapporteur on freedom of religion or belief 19

22 Not so stupid as to claim that my way is the only way Some years ago, a Norwegian humanist organisation applied for permission to, like Christian churches that ring their bells and Muslim mosques calling to prayer, shout over a loudspeaker There is no God! There is no God! all over Oslo once a week. I smile every time I hear that story. Because I think it s healthy to have my belief put into perspective. In ancient societies, atheism did not really exist. In Jesus time in Palestine, it was possible to stop being a Jew, and there are even descriptions of surgical operations that restored the foreskin of men who no longer wanted to follow the covenant. But this did not mean that they stopped believing, only that they switched to another religion. Atheism was punishable by death throughout the Roman empire. This was because an individual who denied God s existence risked incurring the wrath of the gods on everyone collectively. It also explains why you could stone or kill anyone who broke the law the punishment for the deeds of the sinner could otherwise strike the whole community. freedom of worship is an extremely modern idea. Coming from a traditionally Baptist family, I have ancestors who were forced to leave the country because of their beliefs. And today in 2008, I have friends who have fled their countries of origin so as to avoid having to believe. In the church I went to as a child, one of the most wellloved hymns was Your love, O God, is broad like beach and meadow. It contains a line that at least in a church context is so extraordinary and radical. You leave us free to see you or reject you, You give us room to answer yes or no. Just as the world has developed over the past few decades, this is an equally important part of freedom of worship as 0

23 the right to believe. The freedom to actually say no to God. I myself am a deeply believing, avowed Christian. But I am not so stupid that I claim that my way of viewing God is the only possible way. What I am saying is that it is one possible way. In the 13 th century, the Muslim mystic Ibn Arabi expressed the idea that to each human being, God has given one of his infinite number of names of God. Each one of us bears a unique imprint of God and together we make up a score that only God can sing. what each of us can do is to seek the name of God that God has specifically given to us, to seek the contours of God s imprint on ourselves and to respect that our neighbour s search, of necessity, must be unlike ours, since the name of her god has a different tone, a different colour, a different tinge from ours. The form and depth of God s imprint on her is different, its surface engraved otherwise. Let us therefore never strive for consensus, to be entirely in agreement. God is an enigma that we are not meant to understand, a hymn of praise to the impossible, a desperate and wild hope that, despite everything, we are not alone in a desolate and empty universe, that we are never, ever entirely abandoned. If she exists at all. Jonas Gardell Comedian, author, playwright

24 The United Nations Universal Declaration of Human Rights Article 1 All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood. Article 2 Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. Furthermore, no distinction shall be made on the basis of the political, jurisdictional or international status of the country or territory to which a person belongs, whether it be independent, trust, non-self-governing or under any other limitation of sovereignty. Article 3 Everyone has the right to life, liberty and security of person. Article 4 No one shall be held in slavery or servitude; slavery and the slave trade shall be prohibited in all their forms. Article 5 No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. Article 6 Everyone has the right to recognition everywhere as a person before the law. Article 7 All are equal before the law and are entitled without any discrimination to equal protection of the law. All are entitled to equal protection against any discrimination in violation of this Declaration and against any incitement to such discrimination. Article 8 Everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by the constitution or by law. Article 9 No one shall be subjected to arbitrary arrest, detention or exile. Article 10 Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him.

25 Article 11 (1) Everyone charged with a penal offence has the right to be presumed innocent until proved guilty according to law in a public trial at which he has had all the guarantees necessary for his defence. (2) No one shall be held guilty of any penal offence on account of any act or omission which did not constitute a penal offence, under national or international law, at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the penal offence was committed. Article 12 No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks. Article 13 (1) Everyone has the right to freedom of movement and residence within the borders of each state. (2) Everyone has the right to leave any country, including his own, and to return to his country. Article 14 (1) Everyone has the right to seek and to enjoy in other countries asylum from persecution. (2) This right may not be invoked in the case of prosecutions genuinely arising from non-political crimes or from acts contrary to the purposes and principles of the United Nations. Article 15 (1) Everyone has the right to a nationality. (2) No one shall be arbitrarily deprived of his nationality nor denied the right to change his nationality. Article 16 (1) Men and women of full age, without any limitation due to race, nationality or religion, have the right to marry and to found a family. They are entitled to equal rights as to marriage, during marriage and at its dissolution. (2) Marriage shall be entered into only with the free and full consent of the intending spouses. (3) The family is the natural and fundamental group unit of society and is entitled to protection by society and the State. Article 17 (1) Everyone has the right to own property alone as well as in association with others. (2) No one shall be arbitrarily deprived of his property. Article 18 Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance.

26 Article 19 Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers. Article 20 (1) Everyone has the right to freedom of peaceful assembly and association. (2) No one may be compelled to belong to an association. Article 21 (1) Everyone has the right to take part in the government of his country, directly or through freely chosen representatives. (2) Everyone has the right of equal access to public service in his country. (3) The will of the people shall be the basis of the authority of government; this will shall be expressed in periodic and genuine elections which shall be by universal and equal suffrage and shall be held by secret vote or by equivalent free voting procedures. Article 22 Everyone, as a member of society, has the right to social security and is entitled to realization, through national effort and international co-operation and in accordance with the organization and resources of each State, of the economic, social and cultural rights indispensable for his dignity and the free development of his personality. Article 23 (1) Everyone has the right to work, to free choice of employment, to just and favourable conditions of work and to protection against unemployment. (2) Everyone, without any discrimination, has the right to equal pay for equal work. (3) Everyone who works has the right to just and favourable remuneration ensuring for himself and his family an existence worthy of human dignity, and supplemented, if necessary, by other means of social protection. (4) Everyone has the right to form and to join trade unions for the protection of his interests. Article 24 Everyone has the right to rest and leisure, including reasonable limitation of working hours and periodic holidays with pay. Article 25 (1) Everyone has the right to a standard of living adequate for the health and wellbeing of himself and of his family, including food, clothing, housing and medical care and necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control. (2) Motherhood and childhood are entitled to special care and assistance. All children, whether born in or out of wedlock, shall enjoy the same social protection. 4

27 Article 26 (1) Everyone has the right to education. Education shall be free, at least in the elementary and fundamental stages. Elementary education shall be compulsory. Technical and professional education shall be made generally available and higher education shall be equally accessible to all on the basis of merit. (2) Education shall be directed to the full development of the human personality and to the strengthening of respect for human rights and fundamental freedoms. It shall promote understanding, tolerance and friendship among all nations, racial or religious groups, and shall further the activities of the United Nations for the maintenance of peace. (3) Parents have a prior right to choose the kind of education that shall be given to their children. Article 27 (1) Everyone has the right freely to participate in the cultural life of the community, to enjoy the arts and to share in scientific advancement and its benefits. (2) Everyone has the right to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author. Article 28 Everyone is entitled to a social and international order in which the rights and freedoms set forth in this Declaration can be fully realized. Article 29 (1) Everyone has duties to the community in which alone the free and full development of his personality is possible. (2) In the exercise of his rights and freedoms, everyone shall be subject only to such limitations as are determined by law solely for the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality, public order and the general welfare in a democratic society. (3) These rights and freedoms may in no case be exercised contrary to the purposes and principles of the United Nations. Article 30 Nothing in this Declaration may be interpreted as implying for any State, group or person any right to engage in any activity or to perform any act aimed at the destruction of any of the rights and freedoms set forth herein. 5

28 A prerequisite for commitment To take part in public debate, people must have free access to information and be able to say what they think. Freedom of expression is a fundamental human right and a prerequisite for being able to fight all forms of oppression. If people are to be able to participate in public debate and political life they must be free to receive information and say what they think. The link between freedom of expression, poverty and a lack of respect for the individual s economic, social and cultural rights is core. Those who are unable to enjoy their right to education or, for example, to speak their minority language in their dealings with public authorities, for example, have greater difficulty in exercising their freedom of expression and are hampered in their ability to participate in the management of society. 26

29 Photo: Maria Friberg 7

30 Great danger that we create truths that fail to stand up to scrutiny The Universal Declaration of Human Rights represents a major qualitative step forward for humanity and for international standards setting. This year marks the 60th anniversary of the adoption of the Declaration, with the atrocities of the Second World War still fresh in people s minds. The discussion on the fundamental rights of human beings was not new in 1948, but never before had such a clear-cut document declaring the freedom and dignity of all human beings been adopted by the nations of the world. Article 19 of the Declaration sets out the universal principle of freedom of opinion and expression. Everyone has the right to their opinions and to express them to others. In addition, everyone has the right to obtain and search freely for information and ideas. Freedom of expression is a fundamental prerequisite for democracy. It is through dialogues and discussions that great ideas are born and carried through into practice. A free press is fundamental to the ability to obtain information and ideas freely. But freedom of expression is not unproblematic. In democratic societies, there are restrictions on the freedom of expression of individuals and groups to protect other citizens and society at large. For example, in most societies it is against the law to threaten to kill or harm the health of a person, to slander or spread offensive untruths about other people, and to incite criminal activity. These restrictions may be considered necessary to safeguard the effectiveness of society. The balance between the public interest and the inalienable rights of individuals to express their opinions should, however, be continuously discussed and reviewed.

31 Article 19 Everyone has the right to freedom of opinion and expression. This right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers. The danger is great that we will create conventional truths that fail to stand up to scrutiny and challenge. Openness and free discussion is the most effective remedy. I have spent the greater part of my professional life on the international stage and the principle applies there as well. Closed processes based on one-sided information are all too often allowed to guide key decisions. The results can be disastrous. still today, sixty years after the Universal Declaration was adopted, a large proportion of the world s population does not enjoy freedom of opinion and expression and access to a free press. Freedom House s latest freedom index shows, for example, that more than 60 per cent of the world s population still enjoy these rights to only a limited extent. Thirty per cent are considered to completely lack access to freedom of expression, free press and opinion-forming. And so we have a long way to go before fundamental human rights apply in practice to everyone in the world. Despite this, we have good reason to celebrate the progress that has been achieved over the last 60 years. Let us hope that this progress will continue. Hans Blix Chair of the international Weapons of Mass Destruction Commission (WMDC) and President of the World Federation of United Nations Associations (WFUNA), former executive chairman of UNMOVIC ( ), Director-General of the IAEA ( ) and Swedish Minister for Foreign Affairs ( ).

32 We can, of course, make use of our right to contradict It goes without saying if we can t put our opinions forward, then all other rights are also threatened. Freedom of expression, therefore, is fundamental. The Universal Declaration states that Everyone has the right to freedom of opinion and expression. This right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers. This right is still being violated. People are harassed, persecuted or imprisoned because they say or write something that irritates those in power. Laws are made that prohibit certain political or religious beliefs. an even More common practice is for those in power to prevent the possibility of people expressing opinions that will be heard. This involves different forms of censorship. Inconvenient newspapers are prevented from being printed or distributed and radio stations are not given access to radio frequencies. Permission to hold demonstrations is refused. Internet permits are regulated and bloggers are watched. The purpose is often to scare people into silence, to bring about self-censorship. True media freedom requires more than formal freedom. The aim is not to allow only a few major private corporations to establish themselves in the market; the aim is that each and every person should be able to be heard. Monopoly tendencies and partial in- 0

33 terest among the media have, in a number of countries, stifled the possibility of many voices being heard. Like all other freedoms, freedom of expression has legitimate limits. The principle is that this freedom must not impinge on the human rights of others. Distributing child pornography is prohibited; this is a further violation of the child, who has already suffered exploitation. Incitement to racial hatred is also unacceptable. NOR ARE inciting criminal activity, acts of war or treason permitted. But the precise dividing line is thin. The Convention for the Protection of Human Rights and Fundamental Freedoms attempts to define the exceptions to freedom of expression that are necessary in a democracy to, for example, protect everyone s safety. The risk is that exceptions that have been defined in this way will be broadly interpreted by those who wish to silence a critical debate. The European Court of Human Rights, which interprets the Convention, has therefore established that freedom of expression also covers information that could offend, shock or disturb. The message is that all of us not least those in positions of power must endure inconvenient or even unpleasant opinions. We can, of course, make use of our right to contradict. In other words: debate rather than censorship. Thomas Hammarberg Council of Europe Commissioner for Human Rights

34 Rare for motorists who have exposed others to danger to cite freedom of movement in their defence Freedom of expression is a cornerstone of democracy. Without public discussion and criticism, without effective options to reveal and learn about things that are unpleasant for those in power, there is no political accountability and no democratic form of government. The public space is crucial for the existence of a civil society that controls the political elite. Freedom of expression is often the human right that suffers early and serious infringements or outright violations when authoritarian governments, regardless of their political hue, feel threatened. But by the same token, freedom of expression is one of the human rights that is most often abused. And perhaps the human right that is most often used to legitimise irresponsible, or indeed illegal, behaviour. It is rare for motorists who have exposed others to danger to cite freedom of movement in their defence. But freedom of expression means that it is quite common that incitement to discrimination or to violence against an ethnic group, or the profound invasion of personal privacy are justified by citing freedom of expression. the responsible exercise of freedom of expression requires professionalism, and on this basis journalists are right in emphasising that the responsibility inherent in a correct interpretation of freedom of expression should be secured though the professional group s self-monitoring, not through the laws or regulations of states or international organisations. In the fight against terrorism, and especially after the acts of terrorism in New York, Madrid and London, even the western world has fallen prey to the temptation to use criminal measures against people it doesn t like, on the basis of their public expressions of opinion.

35 Proposals are presented recommending control of the Internet and libraries to eliminate technical information that can be used by terrorists, for example, instructions on how to make a bomb. Some countries have criminalised not only incitement to violent crime but also symbolic expressions that constitute apologies for, or glorification of, terrorism. Such laws or proposals are dangerous, especially as long as the international community does not effectively check on what states define as terrorism. Fictitious accounts, graphic patterns or historical documentation of facts all risk being criminalised in some countries if they happen to have a certain content that in the specific context is interpreted as supporting what the state has defined as terrorism. there is no sharp dividing line for what can legitimately be regarded in legislation and court orders as incitement to serious crime and therefore quite rightly is subject to criminalisation. Many countries have, for example, criminalised the denial of the Holocaust committed by Nazi Germany. Such measures are not in violation of freedom of expression if they fulfil two conditions: (a) the reaction is decided by courts and in accordance with rigorous criminal law procedures, and (b) the court in question is convinced that the concrete action, that seemingly took the form of denying certain historical facts, in reality constituted a conscious attempt to incite other people to violence or discrimination. In my view, these conditions are all too often ignored in the current discussion on new restrictions to freedom of expression in the fight against terrorism. Martin Scheinin Special Rapporteur for the UN Commission on the Protection and Promotion of Human Rights and Fundamental Freedoms while Countering Terrorism, and Professor of International Law at the European University Institute (EUI) in Florence. Member of the UN Committee on Human Rights in Professor of Constitutional and International Law in 1998 August 2008, and Director of the Institute for Human Rights at Åbo Akademi, Finland.

36 So which is the most important? I hope I never need to choose Is it possible to rank human rights? Can we decide, once and for all, which right is the most important? Is the right to life more important than the right to freedom? Or vice versa? Learned lawyers discuss this now and again. Personally, I have come to the conclusion that neither the right to life not the right to freedom comes first. What is most important is the right to think freely and to be able to express one s thoughts. This is my opinion and is not necessarily an opinion shared by the European Court of Human Rights, where I work. let Me explain my line of reasoning. Freedom of expression is a prerequisite for a democratic and open society, which in itself forms the basis of the rule of law and respect for human rights, all human rights. Democracy without freedom of opinion and expression is an illusion. Human rights without democracy are impossible. It must be possible to freely discuss all one s thoughts and ideas, however shocking, provocative or perverse they may be. On the other hand, freedom of expression is not unlimited. If it were, it could be used against the whole purpose of democracy and openness for example to sustain an oppressive regime of terror and fear. Those who use their freedom of expression to incite the use of violence against other people must expect a forceful reaction from society. That s where the line is drawn. There is, of course, a conflict between freedom of expression on the one hand, and the protection of private life on the other. What is one person s right to say or write may wound another person, and even destroy his or her life. Here it is up to the legislator to strike a balance of interests. 4

37 things MaY VarY somewhat between different societies and at different times, depending on such factors as history, culture and tradition. In new, fragile democracies, where people have just freed themselves from the shackles of totalitarian oppression and are still in the process of seeking a sustainable model for building their societies, it may be permissible to be somewhat tougher against those giving expression to subversive, fascist, fundamentalist or non-democratic ideas, but only for a transitional period. so which is the Most important? Life? Freedom? Democracy? I hope I never need to choose. It is clear from the above that I put freedom of expression first. I only wish if it ever came to this that I would be as principled and courageous as Voltaire once was: I do not agree with a word you say, but I will defend to the death your right to say it. Elisabet Fura-Sandström Judge at the European Court of Human Rights Footnote: This quote is attributed to Voltaire, but the words are those of Evelyn Beatrice Hall and are to be found in a book about Voltaire, published in

38 The common theme no distinction Discrimination occurs when one person is treated less favourably than another person in similar circumstances. Discrimination is not compatible with the principle of the equal value and rights of all people. The prohibition against discrimination is now a fundamental element of all key UN human rights conventions and of the Convention for the Protection of Human Rights and Fundamental Freedoms. 36

39 Article 2 Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. Furthermore, no distinction shall be made on the basis of the political, jurisdictional or international status of the country or territory to which a person belongs, whether it be independent, trust, non-self-governing or under any other limitation of sovereignty. 7

40 The principles must be reaffirmed Article 2 of the Universal Declaration of Human Rights affirms that: Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. The significance of this short statement, stressing the words Everyone and without distinction of any kind... cannot be stressed enough. It means that all people, everywhere, are entitled to all human rights. For me, Article 2 is the premise on which all other human rights principles are based. But we should remember that sixty years ago, on 10 December 1948, some governments did not vote at the United Nations in favour of adopting the Universal Declaration precisely because of their opposition to Article 2. For example, the government of South Africa was at that time under a political system not prepared to recognise the inherent dignity and equal rights of all members of the human family as proclaimed by the Universal Declaration. fortunately, Much has changed for the better over the six decades since the Declaration was adopted: colonialism, apartheid and the cold war have ended. Democracy has spread to every region. Mass communications and advances in technology have connected billions of people, giving them access to information and allowing them to participate in issues impacting their lives as never before. Yet in many ways our world is similar to the world of There are too many places where either the letter or the spirit of Article 2, like the other provisions of the Universal Declaration, are still not respected. Women continue

41 to suffer from violence, harassment and economic exploitation because of their gender. Minorities continue to face discrimination of all kinds. Billions of people who are impoverished and without influence, continue to be excluded from the social and economic benefits of development. Over the coming months, civil society organisations, governments, universities, faith-based groups, companies and others around the world have an opportunity to reaffirm the importance of human rights as our common birthright and help set a positive agenda for human rights for the 21st century. The principles of equality and non-discrimination as first set out in Article 2 of the Universal Declaration must be reaffirmed and placed at the heart of that agenda. the elders the group of leaders brought together last year by Nelson Mandela - of which I am proud to be a member have launched the Every Human Has Rights campaign to celebrate the 60 th anniversary of the Universal Declaration throughout One of the themes we are highlighting is freedom from exclusion. We want to listen to the voices and concerns of members of communities who are because of identity-based discrimination related to differences of religion, ethnicity, race, language, culture, sexual orientation, or socio-economic class excluded in one way or another from society s decision-making processes. We believe these voices must be heard and governments reminded that societies that value diversity are stronger than those that do not. I encourage you to learn more about the campaign and get personally involved by visiting Mary Robinson President Realizing Rights: The Ethical Globalization Initiative Member of the Elders

42 The equal value of all people is often followed by a little but Strictly speaking, the United Nations Universal Declaration of Human Rights is not legally binding. However, large parts of it have been so widely accepted as principles that, despite the fact that reality is somewhat different, they must now be regarded as constituting generally binding customary law. Article 2 of the Declaration is also special in this context. It contains a prohibition against discrimination that runs as a common theme throughout the system of legally binding instruments protecting human rights built by the international community on the basis of the Universal Declaration. The prohibition against discrimination means, quite simply, that there is absolutely no difference between people and people and formulates, in legal terms, the foundation of all human rights, that is, that all human beings are born free and equal in dignity and rights (Article 1). the prohibition against DiscriMination is BaseD on the insight that this equality, in reality, is often an illusion. When Alice B. Toklas died penniless in Paris in 1967, this was largely a result of the fact that she was left with no legal rights when her life-long partner the world-famous US writer and art collector Gertrude Stein, died. At that time, it was quite obvious that she and Gertrude had been living together as a couple for 34 years, even in the eyes of those around them. But unlike the heterosexual wives of geniuses (as Gertrude called them), who had enjoyed, with their husbands the geniuses Alice s fantastic cooking over the years in their joint home in Paris, Alice had no rights to matrimonial property when Gertrude suddenly died. Her similarity to the wives of geniuses in value did not entitle her to any equivalent rights at all. Thus, under the principle of Article 2, this was discrimination. 40

43 Even in sweden today, discrimination is often concealed by separating value from rights. Even in the Swedish Constitution, in Chapter 1, Section 2 of the Instrument of Government, the word rights has been omitted and only a plain value remains. Whether this matters? I think so. Casual references such as: the equal value of all people, everyone of course has the same value, the basis is naturally that all people are of equal value are often followed by sometimes explicitly stated, but often tacitly a little but :.. but anyway, gender equality has now gone too far, but a normal relationship is still that between a man and a women, and but it will cost too much to make the entrance hall accessible to wheelchairs. It is clear to me that neither the prohibition against discrimination nor the Universal Declaration work on their own. It is governments, organisations, ordinary people, who together must use them and defend them, nationally and internationally. Especially in the international arena, efforts in recent years have often been a matter of rescuing what has already been achieved rather than moving positions forward. Strong forces are striving to weaken both the prohibition against discrimination and the entire global system of mechanisms protecting human rights. in its Most shameless forms, these political power struggles are expressed in attempts to relativise the rights, mainly of women, children and homosexuals, to equal rights and opportunities. Former UN Secretary-General Kofi Annan is said to have stated that government representatives are the only people he has heard arguing for cultural differences or traditional values as reasons for accepting a different (read discriminating) interpretation of what respect for human rights demands. We are all jointly responsible for forcefully repudiating such attempts and defending what all the UN member states solemnly declared in Vienna in 1993: All 4