The problem

Mankind today has a number of great normative texts setting out the fundamental rights and freedoms that ought to be enjoyed by every individual on earth, and correlatively the self-limitations that states should adopt in order to guarantee these rights and liberties. It is no coincidence that these texts were drawn up under the aegis of the organization that brings together almost all states in the international community: the United Nations. The texts are known, if not to all, at least to many: the 1948 Universal Declaration of Human Rights, the 1966 Covenant on Civil and Political Rights, with its accompanying Optional Protocol (which provides for the right of individuals to make complaints concerning violations of the Covenant by governments), and the Covenant on Economic, Social and Cultural Rights, also of 1966.

The first document in this trilogy binds all states in the world; but not with those relatively heavy bonds deriving from true legal norms. It binds them through its moral and political weight, and through the authority derived from the fact that it constitutes a set of natural-law principles to which the states of the world are invited to adhere. The Covenants have different advantages. Precisely because they are actual treaties, they bind only those countries that have explicitly accepted them through the formal procedure of ratification or accession. They are therefore stronger in that they lay down binding legal imperatives, but at the same time they are also weaker in that they involve only those states that have agreed to observe them, some 90 out of 171 states.

The three documents seek to address the whole of mankind with a single voice. And they do indeed provide the same broad parameters of behaviour for all states. But it would have been unrealistic for them to set forth rigidly the same scheme of relationships between governments and individuals for all countries in the world; they could not, in other words, have projected onto the world stage the same model of society and the same model of state. Suffice it to note that the documents were drawn up by states of vastly diverse kinds: some industrialized; others developing; some with market economies, others with planned economies; pluralist states and one-party states; states with official national religions and others that were secular; military regimes and civilian regimes; monarchies and republics; autocratic governments and parliamentary democracies. It would have been unlikely that any of the "fathers" of those great treaties would have agreed to the adoption by the world community of a system of government or model of society that was the radical negation of their own domestic regime. It is unrealistic to imagine a state collaborating in the setting up of an international normative framework destined to be used by others to deny the legitimacy of its own domestic political system.

Accordingly, the decalogues set up at the international level in no way "favour" any of the various political or governmental systems I have just mentioned. They quite rightly do not attempt to make the internal political situation in the various countries fit some absurd Procrustean bed. Each country is left free to adopt the institutional arrangements and political system most congenial to it, those which best reflect its people's needs and its national traditions. All that the texts demand is respect for certain minimum standards concerning relations between the citizen and the state: respect for certain essential human rights, certain essential freedoms and the right to self-government. Each country is free to decide how to bring about this self-government (through a multi-party system or a single party; by proportional or first-past-the-post electoral systems, or on the basis of the "blocked single slate"). Each country also has the right to decide how it will organize the periodic consultations necessary to appoint its ruling bodies, just as each state may decide how it will allow for citizen participation in government. Equally, each state may place restrictions on the fundamental rights and freedoms of its citizens for reasons dictated by requirements of public order or national security, morality or health. Finally, each state has the right to choose its own economic and social system - whether this be capitalist, socialist or of some other kind - so long as it respects and promotes certain rights enjoyed by individuals in the sphere of economic and social relations.

As can be seen, then, the international decalogues are very flexible. This flexibility is accentuated by the well-recognized limitations inherent in the supervisory mechanisms provided for at the international level. The states bound by the Covenants thus enjoy a large measure of manoeuvre.

Despite all this, the fact remains that the Declaration and the two Covenants set forth rules of universal scope, which are supposed, at least so far as their general thrust is concerned, to be valid for all states in the world, and which have as their beneficiaries the five thousand million inhabitants of the earth. But is this relative universality real? Are these rules, these universal precepts, perceived and implemented in the same way throughout the world, or do greater differences and divergences exist than those already allowed by the rules themselves?

One could easily reply that this search for universality is vain or otiose: not even within the most homogeneous group of states - the members of the Council of Europe - can one discern identical views on many crucial problems. Dissimilar views have even been taken by the two international organs responsible for ensuring the proper implementation of the European Convention on Human Rights: the European Commission and Court of Human Rights. By way of illustration, I shall mention the infamous "five techniques to help interrogation" used by the British Security Forces in Northern Ireland in 1971: while the European Commission held in 1976 that the techniques amounted to torture proper¹, the European Court found in 1978 that they did not cause a suffering so intense as to constitute torture, and rather amounted to "inhuman or degrading treatment"². Similarly, the refusal of British authorities to remove from the birth certificate of a male transsexual a reference to his being a female at birth - a reference that produced a good deal of adverse consequences for the social and working life of the person concerned - was unanimously regarded by the European Commission in 1984 as a breach of the "right to respect for one's private life", whereas the European Court, by a majority vote, took the opposite view in 1986³. Plainly, such differences of opinion cannot be eliminated, nor indeed are they to be deprecated: human rights make up such a complex, multifaceted and intricate matter that divergences are inevitable, when it comes to the implementation of those rights.

The questions I have raised do not aim at establishing whether there exists complete uniformity in the interpretation and application of human rights standards. By raising those questions I intended rather to look at the basic approaches and perceptions taken by states in the area of human rights, in order to see to what extent they diverge or converge.

Before addressing these questions, I shall briefly dwell on two possible answers that would constitute easy ways out.

First, the questions raised above could be dismissed outright by those who still believe in the famous proposition by Joseph de Maistre: "I have met in my life French, Italians, Russians, etc.; I even know, thanks to Montesquieu, that one can be Persian; but nowhere have I met in my life the man; if he does exist, this is without my knowing"⁴. It follows logically from this proposition that, as individuals and groups are different - by definition - there cannot exist any similarity of application or even perception of human rights standards in the various nations of the world. And yet, close analysis of the present condition shows, as I shall point out below, that convergences do indeed exist and that many states tend to take the same basic view of human rights.

Another answer to the above questions might be found in the work of the French philosopher Jean Hyppolite. In 1964 Hyppolite wrote of the paradox whereby our epoch is at the same time the one in which the "existential sense of universality" is strongest, partly because "all regions of the earth have now been discovered and have come into relationship with each other", and also the one in which there has been the clearest "decline in universal foundations and standards"⁵. And yet, this answer, right in itself, is not enough: there are specific reasons, peculiar to human rights, that militate against this universality.

Divergences in philosophical conceptions and cultural traditions

Let me say immediately that universality is, at least for the present, a myth. Not only are human rights observed differently - certainly to differing degrees - in different countries; but they are also conceived of differently. I shall seek to identify the principal points on which the various countries of the world still seem far apart: in other words, the points at which the effort at world unification, pursued in developing the three great documents, has still not been accomplished.

Firstly, there are profound divergences in the philosophical conception of human rights. The Western countries continue tenaciously to defend their "natural-law" view of human rights - the one they put forward when the three great texts were being drafted. For them, human rights are innate in individuals, are an intrinsic factor in the "quality of the human person", and hence precede any state structure and must be absolutely respected by governments. A state that violates them in its laws and its actions breaches one of the very prerequisites of civil coexistence between states and may legitimately be brought to account.

For the Socialist countries, by contrast, human rights exist only in society and in the state, and only to the extent that they are specifically recognized. They do not pre-exist the state, but rather are accorded by it. The state may therefore limit them when circumstances so require.

Another important divergence concerns different cultural and religious conceptions. For the West, proclaiming human rights means above all protecting the sphere of individual freedom against the overweening power of an invasive state. This concept - which, as is well known, goes back to Locke - was very effectively brought out by Benjamin Constant in his famous essay on Freedom ancient and modern (1819)⁶ - an essay in which many see a moderate reduction of the lofty principles proclaimed in 1789. "For the ancients", wrote Constant, "freedom was constituted by active, constant participation in the commonwealth. Our freedom ought to consist in the peaceful enjoyment of private independence. . .⁷ [I]ndividual autonomy is the foremost modern need"⁸. For the ancients, freedom "consisted in the collective, but direct exercise of various parts of the whole sovereignty; in discussing in the public forum war and peace, in concluding treaties of alliance with foreigners, voting on laws, in pronouncing judgments, in examining accounts", and so on; the ancients, though, "accepted as compatible with this collective freedom the individual's complete subjection to the authority of the whole"⁹. It is precisely this subjection that man today forcibly rejects. Today, the individual delegates to others the exercise of political power: what concerns him is 'safety in private enjoyment" ("la sècurité dans les jouissances privèes")¹⁰; Constant characterized freedom as "the guarantees accorded by the institutions for that enjoyment"¹¹.

This is, broadly speaking, the Western conception of liberty. There is a markedly different view in the Socialist countries and again in the Third World. For the former, the individual's freedom can be realized only in a society in which classes, bound up with the capitalist system of production, have ceased to exist, so that the individual can fully participate without hindrance or inequalities in the life of the community. Taking up concepts that were first put forward by J. J. Rousseau, socialist thinkers and politicians argue that freedom does not necessarily mean putting restraints on an oppressive central power: the central power is an expression of the community and identifies itself with it. Freedom means rather the creation of mechanisms that promote and enhance integration between individual and community. The stress is no longer on the dialectic between liberty and authority, but on the dialectic between individual and community.

A still more radical difference in conception is the one between the Western and the Asian great cultural traditions. In the Buddhist conception, society is patterned on the family: the political leader - the emperor, in the past - is like the father of a family, with all the powers, authority and responsibilities of the pater familias. Freedom therefore consists not in guaranteeing a space free from possible invasion or oppression by the authorities, but in harmonizing as far as possible the individual's action with the leader's, in view of the duty of obedience owed to the latter.

Even more inclined to subject individuals to the political leader is the Hindu tradition, which has impregnated the social life, and especially the ideology, of India, right up to its Declaration of Independence, and beyond. In Hindu tradition, division into castes - though legally abolished - still involves an obligation on each member of a caste to accept their social status without rebellion. It is the task of all individuals to strive to act positively within their own caste, in order to pass to a superior caste in the next life, or at least not worsen their social standing after death. There is no question of any struggle against authority or of safeguarding a sphere of freedom against an external power.

Similar considerations hold true for Confucianism, a religion (and also a vision of society and of relations between individuals) that developed first in China and subsequently spread to Japan. In Confucian tradition the fundamental nucleus of society is the family; within this miniature social structure, the primary position goes to the head of the household, who is owed unconditional respect by the other members. This patriarchal vision is extended to the state: the Emperor is seen as the head of a family to whom absolute deference is owed. This leaves little room for human rights. The same is also true in the Islamic tradition, or at least in practice in the Islamic countries, which have in some respects steadily moved away from the principles of the Koran. In particular, although there is no radical incompatibility between Islam and the essential principles of human rights, there is a conflict as regards the relationship between man and woman: in Islam these are placed squarely in a relation of subordination, the latter to the former.

In the African tradition, which is to a large extent a tradition of tribal practices and customs, the individual's self-realization is through the community, which is headed by a leader, to whose authority all must bow. There is no reason to fight against the leader, since he does not oppress the members of the community, but rather guides them by acting in such a way as to allow them to integrate fully into the whole: what he does is thus beneficial to the interests of the collectivity.

It will be objected that all these Asian or African traditions have been, as it were, diluted or enfeebled by contact with the modern state: as soon as that characteristic construct of Western Europe has taken root in Africa or Asia, all its characteristic ambiguities and concerns have surfaced, including the dialectic between authority and liberty. This also explains why modern state structures have such difficulty functioning in so many African or Asian countries. It is a plant that puts down roots only slowly, and all too often finds itself there in inhospitable, if not indeed sterile, soil.

Divergences in treatment of the problem of international protection of human rights

Looking more closely at the attitude of states, one finds still further divergences and conflicts as regards a number of fundamental issues bound up with human rights.

Firstly, there is a difference between the Socialist 'statist" conception of human rights, and the current Western international, or rather "metanational", view. I shall attempt to explain in what this divergence consists.

In the Socialist view, it is the task of the international community to agree on a series of broad rules or standards as to the categories or types of human rights to be recognized, that is, as to the restrictions that sovereign states have to accept in order to give sufficient 'space" to individuals within the internal system of each country. Once this step has been taken, it is for each state to lend greater specificity to these broad rules or standards. This is done through domestic legislation laying down the scope of the rights, the powers of the governmental authorities and the procedures open to individuals to seek redress should the rights be breached. At this point, the international community no longer has anything to say on the matter: only sovereign states can decide - though of course within the framework set by the international rules how human rights are to be observed and implemented. The international community "passes the baton", as it were, to national systems, particularly as regards checks on observance of the rights in question. This means that so far as the Socialist countries are concerned, it is not for other states, or the organized international community, to inquire into the observance of human rights. This would contravene a fundamental principle of international law, namely the prohibition of interference in internal affairs - a principle that has the essential objective of protecting state sovereignty and keeping every country in the condition of self-sufficient, well-armoured monads. The sole exception to this rule of absolute non-interference in the affairs of other states is where breaches of human rights become so grave and systematic as to constitute a threat to peace. Only in this case is the organized international community entitled to intervene by discussing the situation, making recommendations and, if necessary, going further, even to the point of recommending or, if possible, ordering sanctions (the cases of South Africa, Chile and Israel - the latter for violations in the occupied Arab Territories - being, for the Socialist countries, examples of such exceptions to the rule of absolute non-interference).

The position of Western states, particularly Scandinavian countries and some other countries in Western Europe, is radically different. They hold that the modern state ought to become a sort of "glass house", so that anyone can look in and establish whether what goes on there conforms to international standards. According to the West, this right to outside inspection may be exercised through the creation of international monitoring mechanisms, whose aim is to ascertain whether a state is in fact observing the international obligations it has assumed. In the view of these states it is absurd to make a sharp distinction between accepting obligations concerning human rights at the international level, and implementig those obligations at the national level. There must be a continuum, an uninterrupted chain between international and national actions. Why? For one very simple reason: the state agencies all too often fail to observe international obligations which come from "outside"; or else national authorities charged with translating international obligations into domestic rules of conduct "manipulate" these obligations and adapt them to the needs of national sovereignty - all the more so because normally the beneficiaries of the international rules are citizens of the state being called on to apply those rules, that is, the very individuals over whom the government authorities are seeking to maintain their power in other ways. Only the vigilant eye of the international community can ensure the proper observance of international standards, in the interest not of one state or another but of the individuals themselves.

A second difference between East and West, closely follows the first: it concerns the main features that international supervisory mechanisms ought to present. After long drawn-out debates, talks and negotiations, the Socialist countries have ended up accepting the Western idea that international instruments are needed to ensure, or at least encourage, national respect for international standards on human rights. This conversion to the West's idea was, however, a painful process, which carried with it the dilution of international supervisory procedures and the attachment of so many qualifications as practically to make them a blunt weapon. In the eyes of the West, the most effective form of international scrutiny is for the individual who is denied a right to which he or she is entitled, to "activate" some form of international guarantee. And yet not even the West shows much enthusiasm for advocating international judicial guarantees: that is, international courts before which individuals could bring actions against states, accusing the latter of infringing upon human rights. The boldest Western countries (once again, the Western European states, plus some Scandinavian countries and Canada) do however assert the need at least to set up international monitoring agencies. An individual whose rights have been breached could then seek the moral and political "condemnation" of the state responsible. Such a condemnation would not be an actual judgment, but rather a non-binding verdict. Besides, as is well known, the quasi-judicial procedures existing within the Council of Europe (procedures hinging on two bodies, the European Commission and Court of Human Rights) are quite exceptional, for attempts made in Latin America to establish similar mechanisms have not yet yielded significant results.

For the West the reasons behind this conception of international scrutiny are obvious. Firstly, only a monitoring system activated by those directly affected by breaches can prove truly effective, for if it is the case, which it usually is, that breaches have been committed by a state against its own citizens, no other international subject or agency has an interest in setting in motion a guarantee mechanism. Secondly, if the supervisory procedures are at least quasi-judicial, there is an assurance that the findings of fact will be something approaching the truth. Clearly, only adversarial proceedings, where both parties (the individual complainant and the accused government) have a chance to state their cases and an assessment is arrived at by a group of people truly independent of the parties, can provide the guarantees of equity and justice required in such a delicate area. The Western states (or at least many of them) have gradually come to embrace the concept of "right of petition to an international body" which France, supported by the Eastern European countries, had proposed in 1946-8. So the situation is now reversed with Eastern Europe steadfast against any right of international petition and the West its staunch supporter. It is too early to say whether the demise of control by Communist parties in Eastern Europe will affect any charge in this area of international relations.

Let us look at the limits within which the Socialist countries have come cautiously to approach the Western position on international supervision. For most states of Eastern Europe, the sole form of acceptable international supervision consisted in periodic consideration - by intergovernmental bodies - of reports on observance of international rules drawn up by the individual states concerned. For most Eastern European states, this type of monitoring respects the concept of national sovereignty, while making some cautious concession to the need for international openness. National sovereignty is fully guaranteed since the subject of verification is the periodic report drawn up by one individual state itself: accordingly, everything is in full conformity with the notion that it is for each state to ensure application of the international norms within its own domestic order in accordance with the modalities it prefers. It is for the individual state to report to the international bodies on the way in which it has applied the international rules. The international body may make observations and comments, but never go so far as to make specific criticism, let alone condemnations. From this point of view too, then, state sovereignty remains intact. It is easy to imagine how this kind of control is implemented in practice: every state tends to depict its own domestic system as a paradise, or something like it, and international bodies must confine themselves to articulating cautious doubts or setting forth considerations of a general nature. State sovereignty emerges victorious; individuals disappear from the international scene, and the violations they have suffered remain unexposed.

Another sharp differentiation, again chiefly between East and West, concerns the conception of the link between human rights and the maintenance of peace. For the Socialist countries, protection of human rights is one of the ways of promoting the maintenance of peaceful relationships among states. They start from the arguments put forward at the end of the Second World War and "codified" in the United Nations Charter. The great conflagration that had shaken the world had largely been due to the racist, totalitarian policy of Nazism. Accordingly, if political systems that respected human rights were gradually to be furthered throughout the world, this would help to ward off the threat of another world conflict. This argument, correct in itself, can, however, lead to a fallacious conclusion: peace being the supreme goal, everything else takes second place; accordingly, if in some particular circumstance the need to respect human rights is liable to cause friction and conflict, thereby threatening peace, it must be swept under the carpet. Between the two goals, the one that must prevail is that of peace. Understood properly, this view is a logical extension of the idea that everything should turn around the essential pivot of state sovereignty, with its corollary of the prohibition on interference in the domestic affairs of other states. In fact, continually advocating the maintenance of friendly relationships among states as the ultimate goal leads to the perception that requiring some country to respect human rights may be a dangerous source of far-reaching disagreement, and accordingly such action should be rejected, indeed forbidden by the international community. (On this issue see however the qualifications I set out in the last section of this chapter.)

The West's view is radically different. For the Western countries, the need to ensure respect for human dignity is always pre-eminent. It is therefore acceptable for a state or group of states to take initiatives and make demarches towards another state to encourage, or even attempt to force it to show greater respect for human rights, even if this goes against "good neighbourliness", or friendly relations in general. For the West, the proper balance between the need to respect the domestic affairs of foreign states and the countervailing requirement to do everything possible to promote respect for human rights is as follows. In cases where violations perpetrated in another state become serious, systematic and massive, intervention by other states or by international organs becomes acceptable, even if it necessarily gives rise to disagreements, tensions, or even conflict.

A fourth area, where there is a wide gap between Western countries on the one hand and Third World and Socialist states on the other, concerns the role and weight to be given to the "international context" in the event of breaches of human rights. In the view of developing countries - joined here by Eastern European states - it is illogical and inappropriate to seek out violations committed in other states and then accuse the governments concerned of trampling on human rights. Breaches of those rights - not only civil and political rights but also, and even more so, economic, social and cultural ones - should instead be considered in the general context of the internal situation of the state being challenged, and also as regards the position of that state vis-à-vis other countries. According to this view, if account is not taken of the overall picture, two risks arise. Firstly, one fails to identify, and come to grips with, the causes of the breaches of human rights. These causes normally lie in underdevelopment; in the need to cope adequately with economic and social problems; and in international conditions, in the main economic ones, but also political ones (which are believed to explain why countries are, on occasions, compelled to suspend or restrict certain rights, such as trade union freedom, rights to private property or freedom of movement, in order to meet international economic pressures - for instance, the need to pay debts to foreign banks or cope with a fall in the price of raw materials). The second danger which lies in a "narrow view" of breaches of human rights is that these breaches can be instrumentalized in order to criticize certain countries in which underdevelopment, transitory historical circumstances and so on, may make some restriction of freedom necessary. This instrumentalization is, according to those states, most often practised by Western countries, in order to point the finger at developing or Socialist countries and condition their actions at home and abroad.

The West's reply to this thesis is that all too often these arguments act merely as a "rationalization" of domestic failings: facile excuses, to justify serious departures from international standards. These departures very often originate from authoritarian forms of government, particularly from military regimes. For the West there is very little foundation in the two theses mentioned, which amount to nothing more than "ideology".

As we can see, in this area too there is a considerable split between two groups, which seem to end up inevitably accusing each other of instrumentalization for propaganda purposes.

A fifth area where the confrontation seems no less bitter concerns the relationship between two classes of human rights: civil and political rights on the one hand, and economic, social and cultural ones on the other. According to the developing and many Socialist countries, the second group is the one that ought to be favoured in international action. There are two reasons. Firstly, these rights are intrinsically more important. What sense is there in talking of freedom of expression when one is hungry, jobless or homeless? Economic and social rights have absolute priority, for it is only when they are fully realized that it is possible to create the de facto equality that makes civil and political rights fully realizable. The second reason is that, especially in developing countries, it is in the economic and social fabric that the most painful shortcomings exist, so that this is where intervention is most needed. In those countries, economic and social backwardness means that not only are roads, hospitals, and infrastructures generally lacking, but so are elementary and higher education. This, then, is the area where intervention is needed, to narrow the gap which separates these countries from the industrialized ones. Accordingly, progressive recognition of economic, social and cultural rights must be insisted on, at the international level.

The Western states, by contrast, tend to put the emphasis on civil and political rights. This is firstly because these rights are a "highlight" in their history, virtually symbolizing the progress of the modern state, having been wrested from despotic power following bitter struggle, rebellion or revolution. A second reason is that for Western countries respect for these rights continues to be of great significance. The major human rights issue in Western industrialized states remains: to what extent is the central apparatus to be limited so as to prevent it excessively invading the individual's sphere? The economic structure of these countries, with a market economy (so that individual initiative and enterprise still have an extremely important role), along with the excessive growth of the state, which tends to penetrate every area of private life, even the most intimate ones, mean that civil and political rights remain crucial. There is nothing more obvious for these states than to project outwards their own problems and concerns, and hence, internationally too, to favour this category of rights and freedom. Apart from that, though, there are also less "ideological" motives. The Western countries stress that full enjoyment of material prosperity is worth little unless one is free to express one's ideas, elect the people one prefers to lead the state, or travel and move freely both at home and abroad. Civil and political rights thus remain indispensable, even if the state's effort has to concentrate primarily on raising the population's standard of living. It follows that it is meaningless to set up a hierarchy among categories of rights; above all, for the states in question, it is meaningless to relegate civil and political freedoms to second place, as if they were a luxury.

As we can see, in this case too the divergences among the various alignments of states are profound, and the diplomatic formulas that have been used to make the twain meet on paper are rather meaningless. One of these formulas speaks about the "interdependence of civil and political rights with economic, social and cultural ones". This convenient catchphrase serves to dampen the debate while leaving everything the way it was. The diplomats who trash out these verbal solutions at international meetings go back home satisfied, each thinking their own interpretation of the (conveniently ambiguous) phrase agreed upon is the right one. In fact, the problems remain, and the political and ideological clashes are postponed, only to emerge even more pointedly at the next opportunity.

Divergences regarding particular human rights

Turning now to a consideration of specific rights and freedoms, here too we come up against considerable differentiation in the way states see these rights. Clearly, divergences can be noted in the way states apply the "escape clauses" in order to allow themselves room for manoeuvre. These clauses allow for 'suspension of obligations" for reasons of public order, national security, morals, public health and so on. Admittedly, the various international supervisory bodies have managed to secure acceptance for the principle that these concepts ought not to be interpreted solely and exclusively in the light of corresponding national concepts. This has barred the way to utter fragmentation of those clauses and to total anarchy in the application of the rights that those clauses restrict and constrain. Nevertheless the fact remains that every state, though it cannot simply hide behind its own domestic law, retains considerable discretion, for it is impossible at the international level to furnish a uniform interpretation of the clauses, and the supervisory bodies have no judicial powers that would enable them to lay down binding interpretations. In the last instance, the scope of the escape clauses remains in the hands of the state concerned.

Furthermore, significant differences can be identified in the very conception of some specific human rights. I shall give only a few examples, starting with freedom of movement. For the Western countries, this is one of the most important forms of manifestation of the personality. How can an individual develop and achieve self-realization without being free to move about the national territory, freely choose residence and workplace, in a word, decide the "area" most in line with individual interests and activities? This freedom also includes the possibility of going abroad, whether for leisure, self-improvement, or just to live in a country where one's qualities are better appreciated or better paid. For the West, freedom of movement is not only part of the concept of freedom of the individual and free enterprise, but also derives from an essential postulate: the human person has potential, and must be free to develop and enrich it. In other words, the basis for that freedom is not only the capitalistic-individualistic conception of the world, but also the conception of man that came to maturity with the Renaissance: the human person is seen as a microcosm containing a number of potential areas for development, all of which deserve an environment which will allow them to grow.

This view is bound to fall on deaf ears in the Third World and in the Socialist countries. In the former, the need for economic take-off necessitates drastic limitations on the "brain-drain". However much it may be the fault of colonialism, it is a fact that at independence those countries found themselves with very few graduates or other qualified people, and therefore had quickly to train new leaders and managers. It would therefore be illogical from their viewpoint to permit the expatriation of young people attracted abroad by easy gain or by the facilities of modern, well-equipped research centres. Similarly, within those countries there is a need to restrict movement: the rapid formation of a few urban centres, densely populated and with abundant service industries, dangerously impoverishes the countryside - where leaders and managers (technicians, doctors, engineers and so on) are also needed. Somewhat similar considerations have applied so far to many Socialist countries; however, there, in addition to economic reasons, there were more strictly political or ideological ones for restricting freedom of movement. All this has made the Third World and Socialist concept of freedom of movement diametrically opposite to that prevailing in the West.

Similar differences can be found, as regards the effect of science and technology on the enjoyment of human rights. Debate on this topic was initiated by France at the United Nations in the 1970s. For France and other Western countries, there was a need to identify and restrain the dangerous outcomes that modern technology might have for the privacy of individuals and groups. Not surprisingly, the problem was not seen in the same terms in non-industrial countries where the development of technology was welcomed. Far from seeking restrictions on the possible uses of computers, those countries instead pressed for the introduction of scientific and technological progress to their communities.

A third example concerns the right to development. The Third World, supported by the Socialists, latched onto this right as early as the 1970s. For them it was a fundamental right belonging both to individuals and to peoples and states. It was a multivalent right, referring both to improvement in economic conditions, and to social, political and cultural development. The entities on which the obligation to fulfil the right was incumbent were states, above all the industrialized ones. So far as the Western countries were concerned, by contrast, this right was a mere slogan; a subterfuge used to include as a human rights issue a demand that the Third World had long and loudly been proclaiming, namely, a demand for major economic assistance from the industrialized countries. As has been pointed out, utilization of human rights rhetoric for this demand had one clear aim: to dramatize it, by transforming it into a "right" so that its bearers could exact its realization from those who, accordingly, had a "duty" to respect and realize it. (See, however, the qualifications set out in the next section.)

Are there points of convergence?

After what I have written so far, it might be thought the international community was irremediably divided with no meeting point, even on this broad topic of human rights. Every state or group of states, while paying lip-service to a number of commonly accepted precepts, would in fact be serving national needs and interests which are not congruent with those precepts. The "universality" of human rights standards would be merely a convenient cover, aimed at concealing underlying disputes and differences. That is undoubtedly true. However, there are elements that somewhat moderate and mitigate the ideological and political splits. I shall bring out three essential factors.

Firstly, it is a fact that the Universal Declaration and the various covenants, treaties and declarations that followed ended up involving and, as it were, "ensnaring" states which were opposed or indifferent to certain aspects of human rights, either due to their historical and cultural traditions or due to different ideologies. Thus, as I have shown in the second chapter, the Socialist countries, having first shown perplexity over, and indeed hostility towards, the Universal Declaration, ended up collaborating in drafting it. Admittedly, they began by thinking of using it as a weapon in the Cold War. But they gradually came to believe in the Declaration as a great ethical and political decalogue that should inspire their actions. More or less the same thing happened to many Third World countries, which ended up energetically participating in producing, if not the Declaration (many of them were not yet independent in 1946-8), at least the 1966 Covenants. This involved them in a process of debate and negotiation in which, while they put forward their needs and asserted their demands, they also accepted many Western or Socialist conceptions. Thus, gradually, the various parameters included in the three international documents in question finished by offering the prospect of common lines of action. Admittedly, this process of unification remains at the moment mainly at a "rhetorical" level, that is, a normative and to some extent ideological one. But in a world as divided, and fragmented, as the international community today, the existence of a set of general standards, however diversely understood and applied, in itself constitutes an important factor for unification.

I wish to stress a second point: despite the differences I have sought to illustrate, a restricted core of values and criteria universally accepted by all the states is gradually emerging.

Firstly, one has the impression that some consensus is coming about as to the relative order of importance of the various rights; in other words, an understanding in principle as to their "hierarchy" (although of course any human right is important and indispensable per se, one may however establish an order of priority, subject to the caveat that this is tentative, historically relative and primarily operates as a sort of working hypothesis). This understanding is to some extent reflected in a speech delivered in 1977 by the then US Secretary of State Cyrus Vance¹². In his view, the fundamental core of human rights is made up of the right to life and security: the right not to be tortured or killed illegally. There then follow rights relating to the fundamental needs of the human person: the rights to work, to decent housing, to nourishment, to protection of health. Thirdly, still in some sort of order of importance, are some civil and political rights like freedom of expression and of association, the right to choose a government and hold public office, and so on. I feel that this grading departs considerably from traditional Western conceptions and goes some way to meet the aspirations and ideological conceptions of the Third World and the Socialist countries. It might therefore be regarded as a point of rapprochement between the opposing views (the fact that subsequent US Administrations have not consistently upheld Vance's view in no way detracts from its intrinsic importance).

There has also been another convergence. Practically all states in the world seem to share the idea that some of the gravest breaches of human rights are: genocide, racial discrimination (in particular, apartheid), the practice of torture, and refusal to recognize the right of peoples to self-determination. This means that agreement in principle has developed, at least as regards an essential core of human values among almost all states in the world. It is foreseeable that this agreement in principle will gradually come to embrace an increasingly wide range of rights.

Furthermore, some convergence has come about in other important areas. For example, recently Eastern European states seem less unresponsive to the Western view of the relationship between peace and respect for human rights (reference to this view was made in the third section of this chapter). They now tend to take a somewhat looser view than before, as is evidenced by their voting in favour of General Assembly Resolution 37/200 of 18 December 1982, where it is stated that the absence of peace can in no way relieve a state from its obligation to ensure respect for the human rights of all those under its jurisdiction. Similarly, most Eastern European countries are in the process of changing their minds as far as international monitoring is concerned. They now seem less hostile to outside scrutiny of national implementation of international standards in a number of fields including human rights. Behind this shift in the attitude of Eastern European countries one can discern a change in their approach to the principle of non-interference in domestic affairs. Previously, those countries consistently insisted on the rule that states should neither inquire nor make representations about alleged breaches of human rights in other states, as such action ran counter to the long standing principle of non-interference. The only permissible exception was where the breaches were so serious, large-scale and systematic as to amount to a threat to international peace. Recently this approach has been relaxed, as is borne out by the final document adopted at Vienna, on 19 January 1989 by the CSCE (Conference on Security and Co-operation in Europe). All but one of the 35 states adopted the text on the "Human Dimension of the CSCE" which is of striking importance (Romania entered a reservation). This text provides that each participating state is entitled to request from other states, through diplomatic channels, information about cases (including specific cases) which raise questions of human rights. In addition, each state may make observations to which responses must be given. Furthermore, each state can bring up those cases in bilateral meetings. Once a state has received the requested information or response, it may raise the whole question with other participating states in the CSCE. This shift from a bilateral to a multilateral framework can take place in two ways: a state can simply pass on the received information or response together with its own comments (if any) to the other participating states; or, it may raise the question at one of the meetings of the CSCE. Although of course the CSCE is primarily a European exercise, to a large extent it reflects emerging trends at the universal level.

Yet another area where rapprochement is taking place is the right to development. The cleavage between industrialized Western countries and developing nations, to which I drew attention in the preceding section, is now narrowing. This is borne out by the fact that on 4 December 1986 a number of Western countries (including France, Canada and Italy) voted in favour of a General Assembly Resolution on this matter (Resolution 41/128) (however, the United States cast a negative vote, while other Western states including the United Kingdom, the Federal Republic of Germany, Japan and Sweden abstained). This Resolution to a large extent amalgamated the approach of developing countries and that of the West, by diluting the former and incorporating a great number of Western demands relating to the need for developing countries to respect human rights, if they wish to benefit from economic co-operation with industrialized countries.

The third factor I consider important concerns the value of the Declaration and the two Covenants. Despite differences on their interpretation and application, no state (except perhaps for South Africa and Iran)¹³ today casts doubt on the significance of these documents as "targets to aim at" (standards of achievement, to use the words of the Universal Declaration). That is, states continue to see in these three documents a set of values that one should strive to realize. This implies that the various countries may gradually harmonize their respective conceptions and visions, drawing impetus, ideas and guidance from these three documents, even if retaining at the same time a divergent set of views and conceptions.

This seems to me to be demonstrated by a number of documents recently adopted by groups of states where traditionally human rights issues have been, if not alien, at least remote. I am referring in particular to the African Charter on Human and Peoples" Rights, approved in 1981¹⁴, and the two Islamic Declarations on Human Rights, approved in 1981¹⁵ and 1986¹⁶. Reading these documents, one is immediately struck by the appearance of new rights, or by changes in the emphasis or character of rights already proclaimed in the three great international normative texts (for instance, the rights of peoples are stressed). This is not to say that these documents in any way contradict the underlying values internationally agreed upon. On the contrary, if anything, the recent documents reaffirm these values. Equally, it may be noted that some rights (for instance, that of equality between men and women, already consecrated in the Universal Declaration and the Covenants but in practice applied restrictively in some Arab countries) are vigorously asserted in the two inter-Arab documents. It is almost as if, despite awareness of the gap between what is and what ought to be, there was a desire to restate faith in an important international value, as being applicable at "regional" level.

The three factors I have sought to bring out together with the new trends emerging in socialist countries¹⁷ perhaps constitute pointers to an effort at gradual unification which, however slow and difficult, gives one hope that states" positions may come closer together, in the human rights field, as in others.

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