Ambiguity is the scourge of human rights law. For decades, lawyers have chiselled away at declarations and conventions, seeking to clarify in terms of black and white the obligations of states towards their citizens. With the passing of time, additional international treaties were drafted specific to different demographic slices, such as women or children or people with disabilities with the aim of further cementing in crystal clear terms the universality of rights as they apply to all peoples.
An insidious process now threatens to cloak those lucid words in a nuanced shade of grey. Efforts have been made by some member states of the Human Rights Council including China, Cuba and Pakistan but led by the Russian Federation, to push through a process to legitimise the concept of “traditional values of humankind” as the basis for human rights law.
In September 2009 a Human Rights Council Resolution presented by the Russian Federation called for the establishment of a one-off expert panel to discuss how a better understanding of traditional values can contribute to human rights protection and promotion. The resolution scraped by with the support of only 26 of the 47 member states. One of the key conclusions of the subsequent panel held a year later as voiced by the UN Independent Expert in the field of Cultural Rights, Ms Farida Shaheed was the “danger in making something as undefined and constantly evolving as “traditional values” the standard for human rights.” Nevertheless, the Russian Federation saw fit to disregard such advice and submitted a follow-up resolution in March 2011 seeking to further entrench the concept of traditional values in the work of the Council. Once again it was the most controversial of that session, and passed with just 24 of 47 votes. The resolution welcomed the outcomes of the expert panel but then for the first time, formalised the following statement as the position of the Human Rights Council:
The Human Rights Council […]
3. Affirms that dignity, freedom and responsibility are traditional values, shared by all humanity and embodied in universal rights instruments;
This operative paragraph appears innocuous enough. However, what should be most worrying for human rights activists - especially those gathering in New York in next month for the 2013 UN Commission on the Status of Women which has elimination and prevention of all forms of violence against women and girls as its priority theme this year - is what is excluded from this position, and for no given reason. The resolution supposedly draws from the 2010 expert panel. The expert panel included just two substantive sessions. . The first was entitled “Human dignity and equality” and the second, “Freedom and responsibility through the prism of different cultures and traditions”. Despite reiterated warnings from experts and states alike that traditional values were not only difficult, but dangerous to define, and that tradition and culture can be used to undermine the universality of human rights principles, only three of the four concepts from those panel discussions found their way into the resolution’s language presenting the supposed position of the Human Rights Council; dignity, freedom and responsibility. The concept to get the cut? Equality.
Sidestepping the concept of equality in a debate about traditional values, and doing so without explanation or rationale demonstrates the dangerous path down which the Russian Federation and its supporters are determined to push the concept. And without equality at the core of human rights discussions, the very universality of human rights is threatened.
The 2011 resolution goes on to task the Advisory Committee, often referred to as the independent think-tank of the Human Rights Council, composed of independent members, to conduct a study on how “traditional values of dignity, freedom and responsibility” – but not equality - can contribute to the promotion and protection of human rights”.
The Russian member of the Advisory Committee drew up the first draft of this study and shared it with the rest of the Committee in February 2012. As was feared, the universality of human rights came under attack. The first of two very worrying assertions reframed human rights as something that is dependent on one’s behaviour rather than something innate;
“Human rights arise from the dignity and freedom of the individual and his or her responsible behaviour in respect of society and other people”.
It continues to say that “these universal values are criteria that should be used in determining the level of respect for and promotion of human rights”. The decades-old principle of universality has in one short study been rendered conditional on responsible behaviour, a term as subjective as “traditional values”. The task of adjudicating responsible behaviour conjures up a chorus of dissenting voices, from members of Pussy Riot, to the Egyptian female protester whose assault was captured on video, to Wodjan Ali Seraj Abdulrahim Shahrkhani, to Malala Yousafzai, to the 23 year old student brutally gang-raped on a bus, to NedaAngha-Soltan and to many other unnamed, invisible people. Each of them has had their “behaviour” judged and condemned, often with horrifying consequences. Responsible behaviour when judged is judged by people in power. No wonder that women and members of minority groups often fall into the irresponsible category.
The second worrying assertion is the promotion of traditional values above human rights law. The study, which when adopted is intended to guide the work of the Council states that;
“All international human rights agreements, whether universal or regional, must be based on, and not contradict, the traditional values of humankind. If this is not the case, they cannot be considered valid”.
Laws that are based on traditional values allow for the promulgation of further ambiguous and therefore threatening terms. This was the case with the insertion in Tunisia’s draft national constitution, now removed, that women have a “complementary” role to men. In addition, anyone from a demographic group that has not held a position of power to influence majority traditional values stands to have these laws unfairly used against them. Ethnic, religious and linguistic minorities and other minorities along lines of sexual orientation or political persuasion are most likely to have their rights stripped if they are not deemed to act in a “traditional enough”, or “responsible enough” manner.
The draft study also takes the stance that traditional values are wholly positive, enthusing for example, over the traditional role of families without a pause for reflection on their role in honour killings, forced and marriages, FGM, infanticide, virginity tests, witchcraft accusations and inheritance laws amongst others.
The process led by the Russian Federation and allies would be less insidious but for the way it has been conducted. Outcry from civil society, who have been largely sidelined from the process to date caused an entirely new, much more measured draft presented in August 2012. The process was deemed “hijacked” by Catholics groups. The Advisory Committee requested further time to present a final draft to the Human Rights Council in March 2013. Threatened by the more balanced report, the Russian Federation decided to push through another resolution in September 2012 without waiting for the final draft. This resolution disregards concerns about negative impacts of traditional values and instead calls for states to submit “best practices in the application of traditional values while promoting and protecting human rights and upholding human dignity” to be summarised by the High Commissioner for Human Rights, Ms. Navi Pillay and presented to the Council in September 2013. According to the International Service for Human Rights, Russia held just one single negotiation with other states, long enough to hear the resolution be “heavily criticised”, before ceasing further negotiations. It was adopted with just 25 votes of 47.
The debates scheduled to take place in Geneva, March 12-13 will inevitably see renewed vigour by some states to reinstate traditional values principles from the discredited first draft above the cautioning approach of the second. What remains to be seen is whether this movement can gather force in the newly shaped Human Rights Council following elections at the General Assembly late last year. Nine of the 25 states who voted in favour of the most recent traditional values resolution had their terms expire at the end of 2012, and amongst them were the strident voices of China and Cuba and protagonists, the Russia Federation. In comparison, only five of the states (Mauritius, Hungary, Mexico, Belgium and Norway) who voted against the resolution in September 2012 will not be able to vote in 2013.
Will the states for whom universality and clarity of international human rights law is better cloaked in ambiguous, regressive concepts, stripped of the principle of equality, have the strength to move forward without the Russian Federation at the helm? The key may reside with member states from Latin American such as Chile, Uruguay, Peru and Guatemala who have been criticised for abstaining whilst simultaneously voicing apprehension and concern about the resolutions. An optimist might say however, that they are showing the Russian Federation how these contentious processes should be done – listening, engaging and allowing for revisions and second drafts before placing a decisive vote. However, rights advocates need to secure their keenly anticipated no votes and stronger stances to bring to an end this re-emergence of regressive, inegalitarian concepts.
In a world in which gender and minorities know no national boundary or regional bloc, it is an indictment of outdated power structures and diplomatic politicking that concepts threatening equality on all levels of society remain at the heart of UN politics in 2013.