Zdzislaw (Dzidek) Kedzia
20 years of the Vienna Declaration and Programme of Action
- Evergreen guidance?
Statement at the International Conference
“Vienna+20: Advancing the Protection of Human Rights”
27/28 June 2013 in Vienna
VDPA as a source of guidance and a vehicle for progress
The legacy of the 1993 World Conference on Human Rights in Vienna has, of course, its
admirers and its critics, although the former seem to heavily prevail nowadays. Evaluations
sound sometimes mysterious. This impression may arise when the “Spirit of Vienna” is invoked
to explain how it was possible to adopt a landmark final document after a rocky preparatory
process and, occasionally, extremely difficult negotiations. But, that Spirit was not mysterious, in
fact. If one would speak about the spirit of time instead of the spirit of place, this reference
would become less mysterious. It was, indeed, the atmosphere generated by the coinciding end
of the Cold War and the end of apartheid that prompted many actors to make “an extra mile” on
the road to “All Human Rights for All”, as it was proclaimed by the Vienna Conference, and
which paved the way to a comprehensive document reflecting the global policy in the area of
human rights.
Looking at the practical legacy of the Conference, many focus on the establishment of the
function of the High Commissioner for Human Rights. Forty-five years after Rene Cassin’s
proposal in the UN Commission on Human Rights, the Conference was able to recommend to
the General Assembly to consider “the question of the establishment of a High Commissioner for
Human Rights” as a matter of priority (VDPA, part II, para. 18). In this way, the Conference
concluded the discussions in various fora launched by an Amnesty International paper “A High
Commissioner for Human Rights: Time for Action”, supported by a joint initiative of various
non-governmental organizations. General Assembly resolution 48/141 establishing the office of
the High Commissioner has been recognized by many as the most spectacular, and in some ways
the most tangible, result of the World Conference. This may be indeed claimed, if one considers
the trigger effect that followed this step, and the unique, almost unexpected, as it seemed,
contribution of this new institution to the protection of human rights worldwide in the last
nineteen years. But, evidently, the Vienna Conference was a groundbreaking event in other
aspects as well, not only in this particular one. Finally, it laid down foundations for the human
rights policy and various practical steps in the last two decades. This multifaceted significance
of the Vienna Conference was captured by the second High Commissioner for Human Rights,
Mary Robinson, in her waggish words opening the “Vienna+5” debate in the General Assembly:
“I have heard, Mr. Chairman, the opinion that the establishment of the office of the High
Commissioner for Human Rights has been the greatest success of the implementation of the
Vienna Declaration and Programme of Action to date. I for one, am not that pessimistic!”
Indeed, one can draw several lines linking the current architecture of the international human
rights protection with specific provisions of the Vienna Declaration and Programme of Action
(VDPA). For the sake of time, let me refer to just two examples illustrating this connection:
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one, is the decision of the 2005 World Summit acknowledging that peace and security,
development and human rights constitute together the pillars of the United Nations system
and the foundations for collective security and well-being. This fundamental declaration and
commitment should be seen as a sort of follow-up to the recognition by the Vienna
Conference that human rights efforts make a contribution to peace and security as well as
social and economic development (VDPA, part I, para. 6), and that democracy, development
and respect for human rights and fundamental freedoms are interdependent and mutually
reinforcing (VDPA, part I, para. 8). The language of the 2005 Summit goes evidently further
than the relevant phrase of VDPA but its roots go back to 1993.
the other is the adoption by the same World Summit 2005 of the principle of the
Responsibility to Protect, which not only empowers the international community to extend its
protection to people facing the most serious human rights violations constituting international
crimes but explicitly establishes its responsibility for the provision of such protection. This
Summit’s decision is logically rooted in the groundbreaking decision of the Vienna
Conference to declare that “the promotion and protection of all human rights is a legitimate
concern of the international community.” (VDPA, part I, para. 4). Although again, this
language may sound rather soft from today’s perspective, in 1993 it meant a rejection of the
use of the domestic jurisdiction clause as a protective shield to counter criticism of grave
human rights violations. Its message was sufficiently strong, at the time.
Social rights – as a test case for the VDPA
Another policy breakthrough achieved in Vienna is particularly close to many hearts, including
mine. I am thinking here about the rejection of the hierarchical categorization of human rights
and the return to the holistic approach to all human rights as reflected in the Universal
Declaration of Human Rights. Widely and frequently quoted is the passage of the VDPA
declaring that “All human rights are universal, indivisible (and) interdependent and interrelated.
The international community must treat human rights globally in a fair and equal manner, on the
same footing, and with the same emphasis.” (VDPA, part I, para. 5). However, the Conference
did not stop short at this statement. The VDPA recommended concerted efforts to ensure
recognition of economic, social and cultural rights at the national, regional and international
levels and the examination of the possibility of the adoption of optional protocols to the
International Covenant on Economic, Social and Cultural Rights.
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Now, although rather late, the international community has a good reason to celebrate, since the
Optional Protocol to the Covenant finally entered into force on 5 May this year. There are five
areas where the Protocol marks significant progress:
Firstly, by putting in place a similar communication procedure as the one established under the
International Covenant on Civil and Political Rights in 1966, the Protocol constitutes a crowning
piece in the process of recognizing the equal value, interdependency and indivisibility of all
human rights.
Secondly, the Protocol enhances the standing of rights holders by enabling victims of violations
of economic, social and cultural rights to claim their rights before the Committee on Economic,
Social and Cultural Rights, as well as it enables victims and other actors to draw the attention of
the Committee to grave or systematic violations of economic, social and cultural rights with a
view to carrying out an inquiry procedure.
Thirdly, the Protocol provides the opportunity to further develop the understanding of economic,
social and cultural rights and their applicability.
Fourthly, it is the first time in the history of the UN human rights treaty bodies that a committee
is called upon to make available its good offices to the parties concerned with a view to reaching
a friendly settlement of a communication case on the basis of the standards set forth in the
Covenant. Maybe, the Protocol will pave the way for other communication procedures to move
in the same direction.
Finally, fifthly, a way has been opened to the establishment of a trust fund with a view to
providing expert and technical assistance to State Parties in building national capacities in the
area of economic, social and cultural rights.
Yet, so far, only ten States: five from Latin America, four from Europe and one from Asia have
ratified the Optional Protocol after its adoption in 2008. Unfortunately, none from Africa yet. In
order to make a tangible progress in putting all categories of human rights on equal footing in
practice and ensuring worldwide access to the international remedy in the area of economic,
social and cultural rights, the ratification process of this instrument needs to speed up. At the
same time, the legal standing of these rights should be enhanced at the domestic level. There are
encouraging examples of jurisprudence developed by national courts, such as decisions by the
Supreme Court of South Africa on, inter alia, the right to housing and the right to health, or by
the Supreme Court of India concerning the right to food. Equally inspirational is the recent
advancement of the public interest litigations in regard to economic, social and cultural rights,
for example, heard by courts in India, Bangladesh, the Philippines, Uganda, Latin America or by
the ECOWAS Community Court. However, it will depend on all stakeholders whether these
examples will pave the way to a wider practice in all regions.
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In the same vein - the consequences of the recent global economic and financial crisis have again
forcefully demonstrated how critically important the economic, social and cultural rights are,
particularly for disadvantaged and marginalized groups. In an attempt to reinforce this category
of rights under the condition of exigency and further clarify their justiciability, the Committee on
Economic, Social and Cultural Rights stressed in its letter to all State Parties to the Covenant,
dated 16 May 2012, that any retrogressive measures during economic emergency might be
acceptable only if they are 1) temporary, 2) necessary and proportionate; 3) non-discriminatory
and aimed at mitigating inequalities, as well as at ensuring that the rights of the disadvantaged
and marginalized individuals and groups are not disproportionately affected, and 4) if they do
not interfere with the minimum core content of the rights.
VDPA and the future
Anniversaries of public events make sense only if they are not exclusively retrospective, but also
future oriented. The Programme of our present Conference evidently shows the organizers’
intention to make the Vienna Anniversary meaningful by seeking answers to current and
expected human rights challenges faced by the international community.
At least four factors speak in favour of a profound and systemic reflection on the role of human
rights in the globalized world and the architecture of the international human rights protection
system. All four are timely. Firstly, the last twenty years have brought significant developments
and changes in the area of human rights which probably require new or profoundly up-dated
ideas and approaches; it is in a way symbolic that for the youngest generation of the human
rights constituency, the VDPA is already a document from the time before they were born.
Secondly, a post-2015 sustainable development agenda needs to be based on the human rights
approach, as it was stressed by the High Commissioner, Navi Pilay, in her letter concerning this
agenda. Thirdly, the potential of the human rights advocacy is rapidly growing. This was
manifested for example by a remarkable mobilization of various human rights stakeholders
before Rio+20 or by different expressions of social outrage, to quote one of the great actors of
the Vienna Conference, Ambassador Stéphane Hessel. Last but not least, fourthly, despite all the
progress made, the international community often fails to effectively and timely prevent large
scale human rights violations or to put an end to them. Victims of such violations are counted not
in dozens but millions. Only the ongoing conflict in Syria has cost, according to estimates, more
than 100 000 lives. One can surely say – something is fundamentally wrong in this world!
Summing up, do we need a Vienna remake, a sort of : “Vienna 2” or a similar event? At a recent
meeting in Geneva, Ambassador Christian Strochal emphasized that such milestone undertakings
as the Vienna Conference need enthusiasm at least on the part of those who are about to take the
lead. Indeed, enthusiasm present 20 years ago was captured by many people saying: this is the
right time to make a step forward. And today – 20 years after Vienna - is now the right time for a
similar step?
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Or, maybe, another approach would better suit the current needs? It could be, for instance, a
systematic development of comprehensive policies and action programmess for specific areas.
Such a process should involve all relevant actors, governmental and non-governmental, under the
leadership of the High Commissioner for Human Rights and the Human Rights Council.
Needless to say, themes such as: prevention of large scale human rights violations and the
implementation of the principle of the responsibility to protect; human rights approach to
globalization and the impact of globalization on human rights and democracy; access to human
rights by vulnerable, socially excluded and marginalized groups; migration and human rights; or
enhancing the impact of the international system of human rights bodies and procedures,
including the proposal of the establishment of an international court of human rights deserve a
thorough analysis and policy development. Whatever organizational option will be chosen for
such programmatic endeavors one of the wisdoms of the human rights movement evidently
maintains its relevance: think big, get ready, and act on time.
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