|Preamble section 6:|
|Whereas Member States have pledged themselves to achieve, in cooperation with the United Nations, the promotion of universal respect for and observance of human rights and fundamental freedoms,|
Examples of the Universalization of Human Rights Post-Apartheid South Africa
During the apartheid era, South African constitutional law became a mixture of Diceyan parliamentary supremacy and white majoritarianism, in which democratic rights were conflated with the rights of the majority of white people, or the majority of their parliamentary representatives. South Africa's legal system was thus based on the principles of parliamentary supremacy and strict legal positivism. The interim Constitution of 1993 (which entered into force on 27 April 1994) and the Constitution of 1996 corrected that past by entrenching human rights which could trump legislative decisions. The so-called "postamble" of the interim Constitution described a "future founded on the recognition of human rights, democracy and peaceful co-existence and development opportunities for all South Africans, irrespective of color, race, class, belief or sex." The Constitution of 1996 added explicitly in its first section "human dignity" as one of the founding values of the new society. Justice Arthur Chaskalson, the President of the new Constitutional Court of South Africa, stated in his recent Bram Fischer Lecture that:
The affirmation of [inherent] human dignity as a foundational value of the constitutional order places our legal order firmly in line with the development of constitutionalism in the aftermath of the second world war.2
The Transition in Eastern Europe
The collapse of Communism following the events of 1989 set in motion economic, political and social transformation throughout Central and Eastern Europe as the newly independent states began the precarious transition from totalitarian to democratic rule. In doing so, reformers looked to the values of liberalism, free market economics and human rights to supplant the old, imposed, collectivist ideology which had been so hostile to liberal commitments. In 1989, Francis Fukuyama went so far as to declare the end of history itself, proclaiming that:
As mankind approaches the end of the millenium, the twin crises of authoritarianism and socialist central planning have left only one competitor standing in the ring as an ideology of potentially universal validity: liberal democracy, the doctrine of individual freedom and popular sovereignty. Two hundred years after they first animated the French and American revolutions, the principles of liberty and equality have proven not just durable but resurgent.
During this period of profound and rapid change, it was soon realized that the ousting of unpopular Communist regimes, while a necessary condition for transformation, would not be sufficient per se to guarantee sustainable economic reform and the effective protection of human rights. One of the reasons asserted at the time for the need to entrench human rights protections in the new Eastern European constitutions was the fragility of the democracy-building process in post-Communist countries.
What is notable during this process of major reform and unpredictable economic transformation is the gradual evolution of a culture of human rights, constitutionalism, and the rule of law. Constitutional courts have been created in many post-Communist states, similar to the South Africa Constitutional Court, to adjudicate on human rights issues and to set limits to governmental authority. Human rights ideas and norms have slowly become more widely disseminated by the non-governmental structures of civil society, permeating the schools, the universities, the electronic media, the free press, and the trade unions. Integral to these changes has been the practice adopted by the new constitutional courts of incorporating international and regional human rights principles into their evolving constitutional systems and jurisprudence--in particular, the Universal Declaration and the European Convention on Human Rights (which itself is closely modeled on the UDHR). At the same time, the new democracies have become full and active members of, and subject to, the laws, institutions and discipline of the Council of Europe, European Union and UN--and hence simultaneously influenced by the great "internationalization" of human rights that has occurred internationally and in Europe over the last fifty years.
2. Arthur Chaskalson, "The Third Bram Fischer Lecture: Human Dignity as a Foundational Value of our Constitutional Order" (2000) 16 South African Journal of Human Rights 193-205.
Peter Danchin, Columbia University