Unravelling the complicated history of human rights to understand its future – Fellows’ seminar by Christof Heyns

24 January 2019

“The disturbing elements of the history of human rights are as important to understand as the more celebrated parts. With the 70-year celebration of the adoption of the Universal Declaration of Human Rights last year it’s important to ask how will we be judged in 70 years’ time, and how much reliance can be placed on our current understanding of human rights? If history is anything to go by, many of our current certainties will also over time be revealed at best as blind spots, coming from what will then be considered a bygone era.”

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STIAS fellow Christof Heyns during his seminar presentation on 17 January 2019

Prof. Christof Heyns of the Institute of International and Comparative Law at the University of Pretoria was presenting the first STIAS seminar of 2019 which looked at the history of the development of human rights in the United Nations Charter and specifically the role of South African Prime Minister Jan Smuts.

“Human rights are the closest approximation we have to a common global moral system, and have played a central role in advancing individual freedom and human dignity,” he said. “However, the human rights project is under threat globally so it’s important for us to understand the foundation on which the ideas were built.”

“South Africa played a leading role in the development of human rights in very different and sometimes diametrically opposing capacities,” he continued. “The duality in the origins of human rights is reflected in the life of the person who wrote the words ‘human rights’ into the Charter – Smuts. One of the questions is whether these dualities undermine its legitimacy as a guiding force for the future.”

“Smuts is seen by many as the author of human rights yet he was not a practitioner of human rights within South Africa,” he continued. “He was a fairly extreme example of dualism. He was undoubtedly an important contributor, who used his international status to promote the idea of human rights, to link peace and human rights and the opposition to war, but he never focused on individual rights. And, although he rejected apartheid as a concept, he was a segregationist and ruler of a repressive, white South Africa.”

“This put him in the seemingly impossible position of having played a leading role in the two moral opposites of the last century: human rights and apartheid. How on earth is this dichotomy to be approached?”

Heyns believes that making sense of Smuts’s legacy has implications for how we see the past, but also for how the future will see us.

Smuts was born in Riebeck West and studied Science and Literature at Stellenbosch University then Law at Cambridge. He participated in the Anglo Boer War and in the subsequent drawing up of the Vereeniging Peace Treaty. He was involved in drafting the Constitution for the South African Union in 1910 and served as Minister in the first cabinet. At the outbreak of World War I he saw it as South Africa’s duty to fight with Britain which led to a rebellion within South Africa. At the end of the war he was involved in the Versailles Treaty and the development of the League of Nations, and strongly pushed the unpopular idea of not humiliating Germany as this might lead to further war. In 1919 he became Prime Minister of South Africa. During World War II he served on Churchill’s War Cabinet and in 1945 was the main contributor to the drafting of the UN Charter which led to the Universal Declaration of Human Rights in 1948 which is still regarded as the core international human rights instrument.

“Smuts was a considerable intellect, a military leader, philosopher, and driving force of history,” said Heyns. “He was captivated by the notion of a world body for peace and the only person to be involved in both the League of Nations and UN. He strongly saw the need to prevent a third world war and therefore believed that the root causes should be addressed. The Charter made it clear that states should not be allowed to violate the rights of other states but said nothing about individual’s rights within countries.”

But Heyns pointed out that individuals were not the subject of international law at that time and the UN was formed on the idea of peace, human rights and development but not of interfering in the internal affairs of individual states.

“Smuts’ political career spanned a period of 65 years,” added Heyns “He had one foot in the past and one in the future.”

“He made a commitment to freedom in the world but his concern was Western civillisation and values. He wanted to address white-on-white conflict and save the world from facism and genocide. The Charter, to some extent, was a reaction to the injustice and chaos of war and reflected a struggle approach to human rights. Therefore the notion of human rights was narrow, relatively vague and didn’t include domestic affairs.”

“It’s also important to remember that it was still a time of non-violent opposition in South Africa – Smuts did not have experience of later events like Sharpeville. At the time even the African National Congress was not asking for full franchise. He was also dependent on the vote of the white South African electorate to play his role as an international statesman.”

“The notion of human rights subsequently assumed a life of its own led by the so-called third world countries as well as the civil rights and liberation movements.”

Changing perspectives

Heyns is interested in understanding the role of context and perspective in the development of human rights ideas. “Do we look at history in the context of the time – in which case Smuts was a progressive,” he asked. “Or do we look from the context of today and currently accepted principles and highlight the obvious shortcomings. Both views are valid but problematic and open us up to the question of what the perspective will be of things we do today in 70 years’ time.”

“Are human rights best understood as a sky-scraper built up to a certain height, one story above the other, on what has to be a solid rock foundation; or should they be seen as a path that winds its way over valleys and hills?”

In addition to examining the founding of the UN and the adoption of human rights as a core value in the Charter, Heyns will also look at apartheid South Africa as the target of human rights action and catalyst for the subsequent development of the UN’s human rights mechanisms as well as the country’s role regarding human rights in the UN after the advent of democracy.

“My provisional thesis is that this historical account will reveal that human rights are often the result of unintended consequences, when norms and mechanisms established to be used against others are applied to their architects. That is how human rights bring about renewal. I believe we are not at the end of the history of human rights and should aim to identify areas that will be an issue in the next 70 years.”

Prof. Heyns is a member of the UN Human Rights Committee and is the UN Special Rapporteur on extrajudicial, summary or arbitrary executions. In 2013 he authored a UN report calling for a moratorium on lethal autonomous weaponssystems utilising robots that kill targets without human involvement.

Michelle Galloway: Part-time media officer at STIAS
Photograph: Christoff Pauw

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