A Revision of the Universal Doctrine of Human Rights: Articles 5 and 10

An academic examination integrating lenses of thought from John Rawls, Baldwin Wong, Michael Ignatieff, and Daniel Bell.

Throughout the course of history, we have witnessed countless cases of individuals being subject to harsh and torturous treatment imposed by state authority. Oftentimes this cruel treatment has also been accompanied by the deprivation of the process to prove innocence. One of the most prominent examples of the such, likely to be one of the first to come to mind, is the mass genocide and containment conducted by the Nazi Party of Germany. Concentration camps like Auschwitz became blindspots in the vision of the western world, their horrific actions unfathomable in the face of basic human empathy. How could such terrible crimes be committed? On what grounds could they ever be justified? With the establishment of the United Nations following World War II, Articles 5 and 10 were instituted in the Universal Doctrine of Human Rights (UDHR) in light of these abominable abuses of power. Article 5 states: “No one shall be subject to tortue or to cruel, inhuman or degrading treatment or punishment.” Article 10 states: “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.” It is implied that countries which sign the UN charter to become participating members are agreeing to comply with these rights. However, since the original ratification of the articles, countries have defied this agreement in lieu of circumstances they claimed to justify the curtailment of these ‘fundamental’ human rights.

This, of course, raises several questions regarding the matters involving these articles. First and foremost, if these rights can be set aside for exceptional cases, how are they to be interpreted as fundamental rights? Supposing that they can be curtailed justifiably, what circumstances coherently warrant their limitations? In this paper, I will be proposing a proviso to Articles 5 and 10 of the UDHR: Both articles should be upheld as a norm for states to respect. Article 5 should be upheld as a metaphysical right, whereas Article 10 should exist as a derogable right and a mechanism for ensuring Article 5. The curtailment of the Article 10, however, is permissible so long that the decision is not motivated arbitrarily and the expense of the individual is outweighed by the benefit of the curtailment. 

Firstly, to dismiss the notion that these articles must necessarily be upheld would be ignorant of the fact that individuals have been historically mistreated and wrongfully persecuted. Aside from historical relevance, Article 5 of the UDHR is an essential component in the constitution of a just society because of its necessity in the preservation of the individual. Its justification as a fundamental human right can be seen under the interpretations of an ‘ideal society’ in both Liberal and Confucian traditions. In “Law of the Peoples,” John Rawls employs a constructivist approach to determine the constitution of a just society. This approach is intended to be universally applicable, as its authority relies on “principles and conceptions of practical reason (P.46)”  to cater to the needs of respective peoples.

In order for the approach to be effective in this regard, it requires that the formation of well-ordered political society be based on strict social cooperation and reciprocity. Furthermore, it employs the thought experiment of “the original position,” a mechanism through which citizens are represented equally as rational beings. This mechanism allows for equal representation through a feature deemed ‘the veil of ignorance’. The veil of ignorance prevents individuals from being aware of any particular disposition they may have in this society. In doing so, it essentially eliminates the partiality an individual may be prone to in the formation of society, such that every individual is equally advantaged. 

If we were to apply this approach and administer a scaffolding to society unaware of implicit biases, we can expect the outcome to be a just society including the fair treatment of every individual. Under this conception of “justice as fairness,” there are three main elements in extending ideas of justice to liberal societies. The elements most relevant to the justification of Article 5 as a necessary fundamental human right are: (1) the need for a list of basic rights, liberties, and opportunities and (2) the high prioritization of these freedoms in respect to the claim of the general good.

In considering Article 5 within the scope of the constructivist approach, we must first assess if it would be justifiable as a right in the interest of the equal disposition of all individuals. It rests assured that every individual is likely to be disinclined towards the cruel or harsh treatment imposed on themself. As it follows under the nature of administration through the veil of ignorance, it is presumable that everyone would generally agree that no one person should be subject to this treatment. Therefore, we can effectively conclude that prohibition of cruel and inhuman punishment is a right that individuals would advocate to be preserved in an unbiased and just society.

Whereas this justification for Article 5 rests primarily in the interests of self-preservation, we can also find it to be a necessary human right on the grounds of fundamental empathy. For this approach, we can look to the contractualist methodology of Confucianism, as explained by Baldwin Wong in “Reconstructing a Confucian Perspective on Global Justice.” Confucianism has been frequently perceived in the past as being incompatible with human rights. This, however, is a misinterpretation of its governing principles. Though it does place an emphasis on social relations and their maintenance, its principles are not necessarily at odds with human rights. Wong argues, instead, for the interpretation of Confucianism through its principle of ‘Tian Xia,’ directly translating to ‘all under heaven.’ This specific concept allows for the ideas of Confucianism to transcend the East Asian context and be applicable to a global frame of reference. Similarly to the original position in Rawls’s constructivist approach, contractualist methodology utilizes a hypothetical situation to derive a solution.

This approach, however, is intended to be a heuristic device to draw substantial moral and political principles from the conception of a person. The ‘conception of a person’ is essentially our understanding of human nature and human beings, a set of essential characteristics we regard in deriving the appropriate principles for society. Characteristics that are considered relevant to the conception of a person are those which are not counterproductive in the thought experiment. For example, instances in which humans have exhibited irrationality are not necessarily indicative of this as a consistent trait. Instead, the conception of a person consists of traits such as rational capacity. Therefore, the understanding of human nature must necessarily be an idealized conception for the efficiency and execution of the contract.

The Confucian ‘conception of a person’ is grounded in the self-reflective capacity of the individual. It is in this trait that we are able to effectively refute the notion of incompatibility between Confucianism and human rights. A self-reflective capacity is what allows for the entity of the individual outside of social relationships. It is within this characteristic in the conception of the person that we are able to incorporate empathy in the foundation of society. In considering the normative standard which grounds self-reflection, there are three primary governing virtues: junzi, ren, and yi. The virtue most relevant for this argument is ren, the idea of benevolence, respect, and concern for other individuals and their wellbeing.

Confucian thinker Mencius believed that human beings share certain natural moral sentiments, such as compassion and sorrow at the sigh of pain. Ren is an extension of these natural sentiments to the rest of humanity, creating a common thread of empathy. In drawing substantial moral and political principles from this standard, it is presumable that society should uphold rights which protect on the grounds of empathy. It is this empathy which restrains us from wishing upon the cruel and inhuman treatment of others. Therefore, on the basis of benevolence for other human beings as an essential element of the conception of the individual, Article 5 is a justifiable right to be upheld in societies.

In examining the necessity of Article 10, we must first acknowledge that it is considered a derogable right by the United Nations, while Article 5 is considered a non-derogable right. A derogable right is one which is thought to be compromisable under certain conditions (i.e. a state of emergency), whereas a non-derogable right is considered to be absolute, regardless of circumstance. Therefore, it follows that we will not be justifying the right to fair trial as a metaphysical right. Instead, we will be defending its necessity on the grounds of protecting an individual’s free agency, as well as a means through which the rights of Article 5 can be ensured.

In “Human Rights as Idolatry,” Michael Ignatieff rejects the notion of human rights as metaphysical, grounding them instead in the protection of an individual’s free agency. This idea of free agency is founded in an understanding of human nature that is quite similar to the Confucian conception of a person explored earlier in this paper. It is reliant on the idea that humans have an intrinsic capacity for rationality, which allows them to effectively choose and manage their lifestyle. Moral and political principles derived to protect free agency are consequently protecting the individual’s freedom to exercise this rational capacity without hindrance. In the case of Article 10, the right to a fair and impartial hearing is a means by which free agency may be preserved. By giving individuals the right to due process, we are systematizing a mechanism that provides an opportunity to prove innocence. This mechanism allows for the individual to have greater jurisdiction over their future, as they are not immediately being subject to persecution.  Therefore, because this right is a mechanism which reinforces the agency of the individual, we can justify Article 10 as a necessary pragmatic right.

Furthermore, if we are to refer once again to the constructivist approach under Liberal tradition, we can find additional justification for Article 10 under the third element of justice: “measures assuring for all citizens adequate all-purpose means to make effective use of their freedom.” It is not sufficient for individuals to simply be entitled to metaphysical rights (such as those advocated for in Article 5). There must also be systems in place that protect the use of the individual’s freedom and protect them from arbitrary imposition of power. Article 10 is therefore effectively a means by which cruel and inhuman punishment can be prevented.

Though Article 10 should be sustained as a system for preserving the agency of the individual, it is also necessary that it remain a derogable right. The process of holding a fair and impartial trial is a logistically demanding affair. In situations which warrant curtailment, it is presumable that the totality of the circumstances surrounding the trial outweigh the expense of logistical demands. Examples of such circumstances include urgency to manage the damage being inflicted by a suspected party, particularly in the face of heightened potential damage if the prosecution were to be delayed. Therefore it is necessary that a cost-benefit analysis be conducted before withholding the individual from fair trial. If the urgency or cost are found to outweigh the benefit of logistical demands, a state of emergency curtailing the right is justified. 

For example, suppose that there is a network of underground activity in a given country. This network is responsible for a large number of kidnappings and murders based on discrimination over an extended period of time. Their activities, however, have been elusive and difficult to prosecute in court on a case-by-case basis. There are prominent members who have been accused of the activity multiple times but have managed to elude punishment. It is projected that this network will significantly eliminate the population of their targeted demographic if immediate action is not taken. In this situation, the urgency of the prosecution outweighs the logistical demands of a fair trial, especially given that particular members have been accused multiple times in the past.

However, we must be aware that the curtailment of Article 10 is not a trivial decision. There have been several instances in which the state’s decision to curtail the right to fair trial have been questionable, arguably unjustified. For the purpose of this paper, I will be examining in detail the threat of communist takeover in Singapore following its independence and the state’s response. There is a significant amount of ambiguity surrounding this particular incident, considering the majority of the information available is only what is provided by the Singaporean government. The government provides the following as an official account on their website: 

“In 1948, the Communist Party of Malaya (CPM) launched an armed struggle against the British in Malaya and a state of “Emergency” was declared. The Special Branch carried out several successive operations against the communists in the 1950s and 1960s and managed to cripple the CPM’s united front networks among the trade unions, Chinese middle schools and other mass organisations which the CPM had exploited to organise strikes and other forms of political agitation. The CPM terrorist squads carried out assassinations or assassination attempts on Special Branch and Police officers, both in Malaya and Singapore.

Singapore continued to face the communist threat after Independence in 1965. Pro-communist elements resorted to “extra-parliamentary” struggle through organised strikes and acts of arson and vandalism. The CPM revived its underground networks to carry out assassinations and “bombing” assignments. The ISD intensified its efforts against the CPM and by late 1970s had eradicated almost the entire communist underground network in Singapore.”

In response to this danger, the government deemed it necessary to declare a state of emergency. It proceeded to execute ‘Operation Coldstore,’  a mass arrest and detainment without trial. More than 100 individuals who were suspected of participating in illicit activity were detained, but their associations were never proven in trial. It is important to note that the government refuses to declassify information regarding the incidents, raising suspicion regarding the validity of the decision. 

In recent years there has been a resurgence of investigation, leading to an availability of information provided through interviews of living detainees. It is through these interviews that we now know that there was very little justification for many of the arrests conducted. Some detainees claim to have only been advocating for reformation in employer-employee relations. It is also speculated that many of those who were arrested and detained were coincidentally also critics of Lee Kuan Yew, the Sinaporean prime minister. Though it is difficult to confirm this as causation, it does allude to a possibility of political motivation behind the detainment. If this is the case, it would imply that individuals were arbitrarily detained. Political disagreement is not an adequate grounds for prosecution.

Withholding these individuals from fair trial is, in this case, an abuse of power and a violation of the individual right of free agency. According to the office of the highest chair of the UN, in Human Rights and the Administration of Justice, lawful arrests and detentions must be in compliance with Article 9(1) of the International Covenant on Civil and Political Rights, “Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law.” Having officially joined the UN 1965, Singapore agreed to the UN Charter and respecting its principles. If political motivation is shown as the true rationale behind the arrests upon declassifying the government documents, the Singaporean state has effectively violated the Universal Human Rights Doctrine. 

Having examined this potentially unjustified curtailment of Article 10, we are faced with a reasonable concern. There is a very likely reality that countries are prone to being dishonest with the information regarding the circumstances and falsifying justification. It is also plausible that countries may abuse the power granted by the provision, going on to possibly violate other rights as well. This begs the question of how we are to effectively judge the validity of the decisions of states. We can address this problem through a retroactive procedure evaluating the justifiability of the declaration of a state of emergency, executed by a special council under the United Nations. In maintaining that the procedure be administered post factum, the government of the country should be able to effectively respond to the urgency of the situation without needing to adhere to the logistical demands of bureaucratic approval. However, the knowledge that the decision will be inevitably evaluated requires the state to be more conscious of its actions. This effectively disincentivizes the engagement in arbitrary curtailment and further violation of human rights. The purpose of this procedure is to reiterate that the preservation of the rights maintained by the articles should be sustained as the norm, with curtailment only being an absolute last resort. 

A possible objection in light of this solution may be in regards to the legitimacy of global interference in a country’s decision in managing its domestic affairs. One may argue that this is an issue of cultural relativism, in that it is ignorant of the practices and values of countries in different contexts. As noted by Daniel Bell in “Human Rights and ‘Values in Asia’”, the UDHR was not constructed with significant input of East Asian values. Countries endorsed it for more “pragmatic, political reasons and not because of a deeply held commitment to the human rights norms it contains (P. 68).” Bell goes on to detail how there have been several incidents in the past where East Asian states have compromised or curtailed certain rights for the purposes of economic or social development. Though it may be true that East Asian countries did not sign the UN charter because of utmost congruence with its ideas, I have proven that the rights preserved in articles 5 and 10 of the UDHR are still compatible with both East Asian values.

That being said, it is important that we are aware of the historical dissonance in the creation of the doctrine. Contrary to the articles it is preserving, the proposed council does not need to be based solely on western Liberal tradition. Evaluations conducted by the council may be culturally sensitive, taking relative values into consideration on a case-by-case basis. Given that their conclusions are still grounded in a cost-benefit analysis and transparency of information, cultural sensitivity would not hinder the purpose of the procedure.

The need for the revision of these articles inevitably stems from a need for specificity. The simple statement of these articles does not guarantee their enforcement. They must be understood as applicable universally, as we have explained through their justification in thought experiments under both Liberal and Confucian traditions. Despite the right to fair trial being considered a derogable right, the preservation of Article 10 is ultimately necessary as a means of protecting individuals from cruel and inhuman punishment. Due to their fundamental natures, both articles must be preserved as a norm, with curtailment of Article 10 being a last resort. In the case that curtailment is necessary, it must be deemed such that the cost of withholding the individual from trial is outweighed by the benefit. Furthermore, I propose that we introduce a retroactive evaluative procedure to prevent abuse of power. This procedure should be conducted such that it is both culturally sensitive and objective. Through this means we can assure the appropriate enforcement of the proviso.