Iron Curtain Seminar

Australian National Europe Centre

Monday, 16 November 2009

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First, may I acknowledge the traditional owners of the land we meet on – and pay my respects to their elders, both past and present.

From the end of World War II, the Iron Curtain stood as a symbolic monument to the ideological divide separating eastern and western Europe.

The first visible cracks in the Iron Curtain emerged along the Austro-Hungarian border, when the Hungarian reform communist government ordered the removal of border installations.

In May 1989, Hungarian soldiers began to dismantle the barbed wire and electric fencing along Hungary’s border, infuriating the communist governments of East Germany, Romania and Czechoslovakia.

On the 27th of June, the Foreign Ministers of Austria (Alois Mock) and Hungary (Gyula Horn) became agents of a historical moment when they cut through the Iron Curtain near Klingenbach, in Burgenland.

In the months that followed, tens of thousands of East Germans emigrated to Austria via Hungary, presaging the end of the Cold War.

It’s twenty years since those winds of change swept across Central and Eastern Europe, bringing about a transition from communist to democratic rule.

This evening, I’d like to reflect on the importance of human rights in the context of that transition.

This historic anniversary is a timely reminder of the role that human rights play, including the practical consequences when human rights are absent or illusory.  The lessons are as relevant now as they were then.

As many of you may be aware, the National Human Rights Consultation which asked the Australian community how best to promote and protect rights has recently concluded. 

I received the independent Committee’s report at the end of September.

Although the Government is still giving consideration to the report, it is clear that while there are many views on how human rights should be protected and promoted, there was agreement that human rights are important.

Reflection on the ways in which human rights have been treated in other countries, including those behind the former Iron Curtain, can help inform our own ideas on this vital issue.

Human rights – Post World War II

As I have said on previous occasions, after the atrocities of World War II, the international community recognised that the protection and promotion of human rights would be fundamental to peace.

The creation of the United Nations in 1945 provided a new forum for this dialogue between nations. As pledged in the Charter, members of the United Nations reaffirmed faith in the “dignity and worth of the human person, in the equal rights of men and women and of nations small and large.”

However, as the relations between capitalist and communist countries continued to chill considerably in the years following World War II, a different approach to human rights began to emerge.

Indeed, when the member states of the newly-formed United Nations came to vote on the Universal Declaration of Human Rights in 1948, those states which abstained from voting included: the Byelorussian Soviet Socialist Republic, Czechoslovakia, Poland, the Ukrainian Soviet Socialist Republic, the Union of Soviet Socialist Republics and Yugoslavia.[1]

It was already clear that a distinction had begun to emerge between two categories of human rights that would be recognised.

Capitalist countries in the West tended to prioritise civil and political rights, such as freedom of expression, the right to peaceful assembly and freedom of movement.

Whereas Communist countries in the East,  focused on economic and social rights like the right to health care, the right to adequate food, and the right to social security.

The justification for, at times, extreme measures that conflicted with fundamental rights was the need to address life-threatening poverty and deprivation. 

In any event, the end result was the creation of two separate binding international covenants in the mid-1960s: the International Covenant on Civil and Political Rights, and the International Covenant on Economic, Social and Cultural Rights.

Both covenants were drawn from the non-binding Universal Declaration of Human Rights, but each focused on different categories of rights.

At a domestic level, while many communist constitutions, especially those developed in the 1960s and 70s, guaranteed certain basic ‘civil’ rights,[2] at the forefront of these constitutional guarantees were socio-economic rights. Far less weight was given to political and personal liberty, and individual rights were always subordinate to the overarching interests of the state and society.

Despite constitutional guarantees, the realisation of many human rights proved impossible under communist rule.

The years of communist rule in Central and Eastern Europe were marked by gross violations of human rights, which have been extensively documented. Executive power displaced the rule of law. Obtaining remedies through the judiciary was difficult.

In commenting on the former Soviet Union, the UN Special Rapporteur noted that 'during the period of the Soviet Union, judges had not been viewed as protecting individuals’ rights in court, but rather as an extended arm of the Communist Party dominating the executive branch'.[3]

Although many communist countries had ratified the international human rights treaties, and although many communist constitutions guaranteed individual rights, the experience was that many of these rights were ultimately seen to be illusory.

In a speech made in 2002, Gerd Oberleitner, then Executive Secretary of the European Training and Research Centre for Human Rights succinctly summarised the position in reminding that corrupt and unaccountable security institutions were themselves a cause for human insecurity and ultimately State failure.

Transition to democracy

I want to turn now to the role played by human rights in facilitating the collapse of totalitarian communism and the transition to democracy.

The push for greater promotion and protection of human rights tended to come from below – from dissident and civil society organisations committed to exposing the ‘dark side’ of communist rule.

To take just one example, in 1977, an association known as Charter 77 was formed in Czechoslovakia. Charter 77 issued a widely-published Declaration criticizing the government for failing to implement human rights provisions included in the Helsinki Accords, the Universal Declaration of Human Rights, and the International Covenants.

The Declaration stated that those associated with Charter 77 were ‘united by the will individually and jointly to work for the respecting of civil and human rights in our country and in the world’.[4]

The Government’s reaction to the manifesto was harsh.

Restrictions on the exercise of civil and political rights were tightened. Many of those who had put their name to the Declaration were arrested or harassed by the authorities. Vaclav Havel, a founding member of Charter 77, was imprisoned.

Charter 77 played a vital role in drawing domestic and international attention to human rights violations under communist rule in Czechoslovakia.

Its contribution to the 1989 Velvet Revolution, which brought about the collapse of the communist government and the appointment of Vaclav Havel as President, cannot be underestimated.

As the transition to democracy throughout Central and Eastern Europe unfolded, human rights had a new role to play. The rights of those who had been subject to gross violations under communist rule were finally acknowledged through a range of transitional mechanisms.

Mechanisms, that in some cases, were wanting in terms of being appropriate processes that were consistent with the human rights they were seeking to promote.

One popular mechanism employed in a number of post-communist countries was ‘lustration’: the practice of purging former officials from elected or civil service positions. For example, in Czechoslovakia, those who had been closely associated with the communist party or the secret police were purged from the judiciary.[5]

But these processes also gave rise to difficult questions about the individual rights of those who had collaborated with totalitarian regimes. In a number of countries, laws to remove former state officials, were challenged before newly-established constitutional courts. In Bulgaria, some of the lustration laws were struck down for being incompatible with human rights.[6] In Albania, laws aimed at purging private lawyers were found to violate the separation of powers.[7]

These cases demonstrate the complex role played by human rights in the process of transition. The challenge for these new democracies was to use human rights to address past injustices, without compromising the integrity of their commitment to human rights in the present. 

The answer lay in the rule of law. 

Then, as now, unrestrained and unaccountable executive action is repugnant to those principles which underlie a healthy democracy.

The interesting point here is that ultimately an outcome was achieved that was consistent with due process and it was the courts that ensured that outcome.

Ongoing role for human rights

For most countries in Central Europe, the transition to democracy meant that new or amended constitutions were needed. Invariably, these constitutions have entrenched human rights.

For example, the Czech Republic Constitution incorporates a ‘Charter of Fundamental Rights and Basic Freedoms’.[8] The Constitution of Hungary sets out a range of ‘Fundamental Rights and Duties’[9] and the Polish Constitution includes a list of ‘Personal Freedoms and Rights’.[10]

Many of these constitutions have also entrenched the separation of powers and established constitutional courts. This has provided citizens with a means of holding governments to account for human rights violations, through judicial review.

Constitutional changes of this nature represent an ongoing commitment to human rights and the rule of law.

Engagement with international human rights instruments and processes has also been a priority in recent years.

All Central European states have ratified the European Convention on Human Rights, submitting to the jurisdiction of the European Court. Membership of the European Union, with all of the economic benefits it has to offer, is conditional upon meeting certain human rights requirements.

Conclusion and lessons

In conclusion, the challenges to the effective implementation of human rights standards are not confined to any one ideology. Rather, they are challenges that we all face.

It’s clear that human rights played a critical role in the transition of Central European states from communist to democratic rule.

Importantly, the end of the Cold War and the lifting of the Iron Curtain have facilitated the free exchange of ideas not only within former communist countries, but also between those countries and the west.

The international dialogue that has emerged over the past twenty years on democracy, the rule of law and human rights is a welcome development, and one that, ultimately, we can all learn from.

Even when we face exceptional circumstances the lessons are clear.  Mechanisms are required to ensure that the rights of all citizens are recognised, respected and enforceable. 

Because an executive that is self-serving and accountable to only itself will fail. 

Thank you.

Footnotes

[1] Other states abstaining were Saudi Arabia and South Africa.

[2] G Brunner (ed), Before Reforms: Human Rights in the Warsaw Pact States 1971 – 1988 (1990), 32.

[3] Report to UN Human Rights Council by Special Rapporteur, 23 March 2009.

[4] E Lawson, Encyclopedia of Human Rights (1996).

[5] Ruti Teitel, ‘Post-Communist Constitutionalism: A Transitional Perspective’ (1994) 26

Columbia Human Rights Law Review 167, 174.

[6] Ibid, 181.

[7] Ibid, 182.

[8] Constitution of the Czech Republic, art 3.

[9] Constitution of the Republic of Hungary, Chapter 12.

[10] Constitution of the Republic of Poland, arts 38-56.