Solidarity rights universality and diversities

Рефераты по государству и праву » Solidarity rights universality and diversities
Zoltan Vig

The oposition between the individual and the community is one of the central themes in the non-Western cultural criticue of international human rights.1 Throughout the centuries concepts of human rights and fundamental freedoms provided that the beneficiaries of those rights and freedoms are individual human beings in whom these rights inhere inalienably by virtue of their humanity and the dignity and integrity to which that characteristic entitles them.2 For long one of the key features of human rights thinking was the centrality of the dignity and well being of individuals. On the other hand man is a „social animal“ and individual human rights have collective interests as legitimate restriction grounds. Moreover such interests may impose duties on individuals. Some scholars argue that most human rights have a collective aspect.3Some human rights are intended on the protection of an individual’s capacity for relating with others (the freedom of expression the freedom of assembly etc.). In relation with the state’s obligation to implement human rights most of the rights are collective as they can be implemented by means of general measures only. Some of the human rights are ascribed to special groups of human beings – such as children women prisoners etc. - but still they belong to individual members of a group rather than to the group itself as a hypothetical entity.

However the solidarity rights are difficult to reconcile with the classical theory as they are held not by individuals but by collective subjects (“peoples”). They are frequently referred to as “third generation” rights. Karel Vasak former director of the Division of Human Rights and Peace of UNESCO began to use these terms at the end of 1970s. According to his explanation after the first generation of negative civil and political rights and the second generation of positive economic social and cultural rights a new third generation of rights receives international recognition. These rights are the so-called rights of solidarity as they can be brought through only by joint activity of all social actors – individuals state public and private bodies and the international community. Using the terminology of the French Revolution of 1789 the first generation of rights implies freedom the second generation equality and the third generation (the solidarity rights) – fraternity. This model can be considered a simplified expression of a very complicated historical advance. It does not indicate a linear progression in which every generation of rights appears changing the old one and disappears with the emergence of the next generation of rights. It also does not suggest that one generation of rights is more important than another is. The three generations are implied to be “cumulative overlapping… interdependent and interpenetrating.” This triad of democracy development and human rights reflects the fundamental conditionality of social and individual life and progress.4 The “third generation” rights proposed by Vasek include the right to development the right to peace the right to a healthy and balanced environment the property right of the common heritage of mankind and the right to humanitarian assistance.5

Nowadays the range and classification of collective rights is questionable. Some commentators distinguish particular rights as such - for example the rights to self-determination liberation and equality the right to international peace and security the right to use of wealth and resources the right to development the right to environment and the minority rights.6 Others use classifications of collective rights distinguishing for example: - “nationalist” collective rights which imply the group of rights which in some respect deal with the existence and cultural or political continuation of groups (e.g. the right to self-determination) 7 and other collective human rights;8

- or collective human rights reflecting demand for a global redistribution of power wealth and other important values or capabilities (the right to political economic social and cultural self- determination the right to economic and social development the right to participate in and benefit from "the common heritage of mankind") and the rights suggesting the impotence or inefficiency of the nation-state in certain critical respects (the right to peace the right to a healthy and sustainable environment and the right to humanitarian disaster relief).9 In the following I will discuss those rights which are recognized by the majority of commentators.

The principle of “equal rights and self-determination of peoples” is cited in the United Nation’s Charter (UNCH) 1 (2) as a basis for friendly relations among nations. This principle is also declared to be one of the four purposes of the UN.10Throughout its existence the UN has undertaken and supported many measures to promote and protect the right to self-determination especially in encouraging and accelerating the grant of independence to colonial countries trust territories and other non-self-governing territories 75 of which became independent between the entry into force of the UNCH in 1945 and the end of 1977. As one of those measures this right is incorporated into the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic Social and Cultural Rights (ICESCR). Both of these documents (article 1(1)) identically provide this right:

“All peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic social and cultural development.”

In the probably most progressive document concerning collective human rights - the 1981 African Charter on Human and Peoples’ Rights (ACHPR)11 (article 20) – the right to self-determination is complemented with the “right to existence” and the further right to liberation “from the bonds of domination” means for liberation being unrestricted except for recognition of such “by the international community”. Moreover the ACHPR declares a right to assistance from the other State Parties in any “liberation struggle against foreign domination”. The right of self-determination under the ICCPR and the ACHPR is absolute and immediate and non-derogable in any circumstances.

There is an opinion that “self-determination has been the single most powerful legal concept shaping the world since the World War II”; being however at the same time very strongly affected by economic self-efficiency.12

The right of a group to existence is generally protected by the prohibition of genocide and apartheid. Article II of the Convention on the Prevention and Punishment of the Crime of Genocide13 defines genocide as “acts committed with intent to destroy in whole or in part a national ethnical racial or religious group as such”. The International Convention on the Suppression and Punishment of the Crime of Apartheid relates the definition of the crime both to acts against individuals and to acts against groups. For example article II (c) tells about “measures calculated to prevent a racial group or groups from participation in the political social economic and cultural life of the country”.14

The right not to undergo group-based discrimination granted to individuals is frequently cited as an example of a collective right. This viewpoint finds support in many international human rights instruments. The most important example is the International Convention on the Elimination of All Forms of Racial Discrimination.15 In particular the State Parties under this convention have an obligation “to engage in no act or practice of racial discrimination against persons groups of persons or institutions” (article 2 (a)). Even so that these provisions are formulated as state obligations rather than as collective or individual human rights “their result is a recognition of the rights of groups.”16

The protection of minorities reflectingthe needs of minorities and groups as collectives 17 is the oldest illustration of collective rights’ protection. Since the seventeenth century international treaties included provisions guaranteeing certain rights to religious minorities. Examples are the Treaty of Westphalia (1648) granting religious rights to the Protestants in Germany; the Treaty of Olivia (1660) in favour of Roman Catholics in Livonia ceded by Poland to Sweden; the Treaty of Ryswick (1697) protecting Catholics in territories ceded by France to Holland and the 1763 Treaty of Paris between France Spain and Great Britain protecting Catholics in Canadian territories ceded by France.18 After the First World War the system of minority rights protection was established by the League of Nations. By means of special provisions in peace treaties this system provided for securing of legal equality for individuals belonging to minorities as well as preservation of the group identity and traditions of minorities.19 After the Second World War to the protection of minorities was applied rather an individual human rights approach. In the first place minority rights are secured trough the prohibition of group-based discrimination. In the second place the ICCPR includes a special provision on the rights of individuals belonging to minorities serving as a starting point for further international and domestic legislation:

“In those States in which ethnic religious or linguistic minorities exist persons belonging to such minorities shall not be denied the right in community with the other members of their group to enjoy their own culture to profess and practice their own religion or to use their own language.” (article 27).20

Modern human rights development makes clear the movement in favour of collective rights for minorities. However in most international and domestic human rights instruments these rights are declared alongside with rights of individual members of minority groups without any distinction. Examples are the Council of Europe’s 1995 Framework Convention for the Protection of National Minorities21; the 1993 Vienna Declaration;22 the 1978 UNESCO Declaration on Race and Racial Prejudice;23 the 1992 Declaration on the Rights of Persons Belonging to National or Ethnic Religious or Linguistic Minorities.24

As a particular minority rights category can be considered the rights of indigenous peoples 25 as historically the indigenous population was the target of discrimination.26 Compared with minority rights rights of indigenous people are more often to encounter in domestic legislation27 and more readily recognized as group rights28 than minority rights. For example the 1994 United Nations Draft Declaration on the Rights of Indigenous People declares to be “collective rights” many of the rights included in the Declaration.29 An exception in this tendency is the Vienna Declaration referring to “the rights of indigenous people” not peoples.30

A group of so called collective cultural rights implies an individual’s right in community with others to take part in cultural life. This right is recognized in the 1966 UNESCO Declaration of the Principles of International Cultural Co-operation31 and separately protected in ICESC32 15 (1)(a). The right to profess and practice a religion in community with others is declared in ICCPR33 18 (1). Surprisingly the right to use a language is provided by neither of them.34 The right to the common heritage of mankind is included in the UNESCO Draft Declaration on the Safeguarding of Future Generations of 1997.35 This right is supposed to be more comprehensive than other cultural rights. It provides every individual in community with others with the right to share “Earth and space resources scientific technical and other information and progress and cultural traditions sites and monuments.”

The collective right to peace and security or “the right to life in peace” is declared as a right of “every nation and every human being” in the Declaration on the Preparation of Societies for Life in Peace adopted by the UN General Assembly in 197836. The Declaration on the Right of Peoples to Peace adopted by the UN General Assembly in 198437 (§ 1) “solemnly proclaims that the peoples of our planet have a sacred right to peace.”

The right to use of wealth and resources or the right to sovereignty over natural resources might be described as an economic counterpart of the right to self-determination. There is an opinion that the permanent sovereignty of peoples and nations over their natural resources is a component of the “principle of equal rights and self-determination of peoples” declared in the UN charter (article 1).38

This right is formulated in article 1 (2) of the ICCPR and the ICESCR as follows:

“All peoples may for their own ends freely dispose of their natural wealth and resources without prejudice to any obligations arising out of international economic co-operation based upon the principle of mutual benefit and international law. In no case may a people be deprived of its own means of subsistence”.

Moreover the article 47 of the ICCPR and the article 25 of the ICESCR state:

“Nothing in the present Covenant shall be interpreted as impairing the inherent right of all peoples to enjoy and utilize fully and freely their natural wealth and resources”.

In the most completed form this right is declared by the article 21 of ACHPR.39 All the above mentioned documents limit the right to sovereignty over natural resources by “obligations arising out of international economic cooperation” and by international law.

One of the most significant collective rights- the right to development according to some commentators is “difficult to define as a human right” because it rather “tends to suggest the presence of certain conditions conducive for human rights ”.40 The origin of this right is tracked back by some authors to the 1944 Declaration of Philadelphia 41 adopted by the General Conference of the International Labor Organization which stated that “all human beings irrespective of race creed or sex have the right to pursue both their material well-being and their spiritual freedom in conditions of freedom and dignity of economic security and equal opportunity”.

The right to development as a human right was launched by Keba M’Baye that time Chief Justice of Senegal in his inaugural lecture on that subject to the 1972 study session of the International Institute of Human Rights in Strasbourg. In 1986 the General Assembly adopted the United Nations key document in this field - the Declaration on the Right to Development setting up the right to development as “an unalienable human right”.42 The Vienna Declaration and the Programme of Action (articles I/10-11 and II/72-74) states this right as “a universal and inalienable right and an integral part of fundamental human rights”.43 However the most commentators agree that this right doesn’t really have any enforceable means of implementation except for in the regional ACHPR system.44 The right has been discussed broadly in recent years.45 Partly because the economic circumstances in many countries are such that their inhabitants’ rights are violated steadily and partly also because some programs for the economic development of these countries may themselves result in deprivation of human rights.46 There is no generally agreed definition of the nature or scope of the right to development in the context of human rights. Many authors agree with the collective nature of this right47 however the right to development might be considered as being both of collective and individual nature.48 The UN Declaration on the Right to Development defines the right to development as right to participate in contribute to and enjoy economic social cultural and political development in which all human rights and fundamental freedoms can be realized;49 So the right to development is supposed to have not only economical and social dimensions but cultural and political as well.50

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