Реферат: Solidarity rights:universality and diversities

Zoltan Vig

The oposition between the individual and the community is one of thecentral themes in the non-Western cultural criticue of international humanrights.[1]Throughout the centuries concepts of human rights and fundamental freedomsprovided that the beneficiaries of those rights and freedoms are individualhuman beings in whom these rights inhere inalienably by virtue of theirhumanity, and the dignity and integrity to which that characteristic entitlesthem.[2]For long, one of the key features of human rights thinking was the centralityof the dignity and well being of individuals. On the other hand, man is a„social animal“, and individual human rights have collective interests aslegitimate restriction grounds. Moreover, such interests may impose duties onindividuals. Some scholars argue that most human rights have a collectiveaspect.[3]Some human rights are intended on the protection of an individual’s capacityfor relating with others (the freedom of expression, the freedom of assembly,etc.). In relation with the state’s obligation to implement human rights, mostof the rights are collective as they can be implemented by means of generalmeasures only. Some of the human rights are ascribed to special groups of humanbeings – such as children, women, prisoners, etc. — but still they belong toindividual members of a group, rather than to the group itself as ahypothetical entity.

However, the solidarity rights are difficult to reconcile with theclassical theory, as they are held not by individuals, but by collectivesubjects (“peoples”). They are frequently referred to as “third generation”rights. Karel Vasak, former director of the Division of Human Rights and Peaceof UNESCO, began to use these terms at the end of 1970s. According to hisexplanation, after the first generation of negative civil and political rights,and the second generation of positive economic, social and cultural rights anew third generation of rights receives international recognition. These rightsare the so-called rights of solidarity as they can be brought through only byjoint activity of all social actors – individuals, state, public and privatebodies, and the international community. Using the terminology of the FrenchRevolution of 1789, the first generation of rights implies freedom, the secondgeneration equality, and the third generation (the solidarity rights) –fraternity.[4] This model can be considered a simplified expression of a verycomplicated historical advance. It does not indicate a linear progression inwhich every generation of rights appears changing the old one, and disappearswith the emergence of the next generation of rights. It also does not suggestthat one generation of rights is more important than another is. The threegenerations are implied to be “cumulative, overlapping… interdependent andinterpenetrating.”[5] This triad of democracy, development, and human rights reflects thefundamental conditionality of social and individual life and progress.[6] The“third generation” rights proposed by Vasek include the right to development,the right to peace, the right to a healthy and balanced environment, theproperty right of the common heritage of mankind, and the right to humanitarianassistance.

Nowadays the range and classification of collective rights isquestionable. Some commentators distinguish particular rights as such — forexample, the rights to self-determination, liberation and equality, the rightto international peace and security, the right to use of wealth and resources,the right to development, the right to environment and the minority rights.[7] Othersuse classifications of collective rights, distinguishing for example: — “nationalist” collective rights, which imply the group of rights, which in somerespect deal with the existence and cultural or political continuation ofgroups (e.g. the right to self-determination),[8] and other collective human rights;[9]

— or collective human rights reflecting demand for a globalredistribution 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 andbenefit from «the common heritage of mankind»), and the rightssuggesting the impotence or inefficiency of the nation-state in certaincritical respects (the right to peace, the right to a healthy and sustainableenvironment, and the right to humanitarian disaster relief).[10] In thefollowing I will discuss those rights which are recognized by the majority ofcommentators.

The principle of “equal rights and self-determination of peoples” iscited in the United Nation’s Charter (UNCH) 1 (2) as a basis for friendlyrelations among nations. This principle is also declared to be one of the fourpurposes of the UN.[11] Throughout its existence, the UN has undertaken and supported manymeasures to promote and protect the right to self-determination, especially inencouraging and accelerating the grant of independence to colonial countries,trust territories and other non-self-governing territories, 75 of which becameindependent between the entry into force of the UNCH in 1945 and the end of1977. As one of those measures this right is incorporated into theInternational Covenant on Civil and Political Rights (ICCPR) and theInternational Covenant on Economic, Social and Cultural Rights (ICESCR). Bothof these documents (article 1(1)) identically provide this right:

“All peoples have the right of self-determination. By virtue of thatright they freely determine their political status and freely pursue theireconomic, social and cultural development.”[12]

In the probably most progressive document concerning collectivehuman rights — the 1981 African Charter on Human and Peoples’ Rights (ACHPR)[13](article 20) – the right to self-determination is complemented with the “rightto existence” and the further right to liberation “from the bonds ofdomination”, means for liberation being unrestricted, except for recognition ofsuch “by the international community”. Moreover, the ACHPR declares a right toassistance from the other State Parties in any “liberation struggle againstforeign domination”. The right of self-determination under the ICCPR and theACHPR is absolute and immediate and non-derogable in any circumstances…

There is an opinion, that “self-determination has been the singlemost powerful legal concept shaping the world since the World War II”; being,however, at the same time very strongly affected by economic self-efficiency.[14]

The right of a group to existence is generally protected by theprohibition of genocide and apartheid. Article II of the Convention on thePrevention and Punishment of the Crime of Genocide[15] defines genocide as “acts committed with intent to destroy, inwhole or in part, a national, ethnical, racial or religious group as such”. TheInternational Convention on the Suppression and Punishment of the Crime ofApartheid relates the definition of the crime both to acts against individualsand to acts against groups. For example, article II (c) tells about “measurescalculated to prevent a racial group or groups from participation in thepolitical, social, economic and cultural life of the country”.[16]

The right not to undergo group-based discrimination, granted toindividuals, is frequently cited as an example of a collective right. Thisviewpoint finds support in many international human rights instruments. Themost important example is the International Convention on the Elimination ofAll Forms of Racial Discrimination.[17] In particular, the State Parties under this convention have anobligation “to engage in no act or practice of racial discrimination againstpersons, groups of persons or institutions” (article 2 (a)). Even so, thatthese provisions are formulated as state obligations, rather than as collectiveor individual human rights, “their result is a recognition of the rights ofgroups.”[18].

The protection of minorities, reflecting the needs of minorities andgroups as collectives,[19] is the oldest illustration of collective rights’ protection. Sincethe seventeenth century international treaties included provisions guaranteeingcertain rights to religious minorities. Examples are the Treaty of Westphalia(1648), granting religious rights to the Protestants in Germany; the Treaty ofOlivia (1660), in favour of Roman Catholics in Livonia, ceded by Poland toSweden; the Treaty of Ryswick (1697), protecting Catholics in territories cededby France to Holland, and the 1763 Treaty of Paris between France, Spain andGreat Britain, protecting Catholics in Canadian territories ceded by France.[20] Afterthe First World War the system of minority rights protection was established bythe League of Nations. By means of special provisions in peace treaties thissystem provided for securing of legal equality for individuals belonging tominorities, as well as preservation of the group identity and traditions ofminorities.[21] After the Second World War to the protection of minorities wasapplied rather an individual human rights approach. In the first place minorityrights are secured trough the prohibition of group-based discrimination. In thesecond place, the ICCPR includes a special provision on the rights ofindividuals belonging to minorities serving as a starting point for furtherinternational and domestic legislation:

“In those States in which ethnic, religious or linguistic minoritiesexist, persons belonging to such minorities shall not be denied the right, incommunity with the other members of their group, to enjoy their own culture, toprofess and practice their own religion, or to use their own language.”(article 27).[22]

Modern human rights development makes clear the movement in favourof collective rights for minorities. However, in most international anddomestic human rights instruments these rights are declared alongside withrights of individual members of minority groups without any distinction.Examples are the Council of Europe’s 1995 Framework Convention for theProtection of National Minorities[23]; the 1993 Vienna Declaration;[24] the 1978 UNESCO Declaration on Race and Racial Prejudice;[25] the1992 Declaration on the Rights of Persons Belonging to National or Ethnic,Religious or Linguistic Minorities.[26]

As a particular minority rights category can be considered therights of indigenous peoples,[27] as historically the indigenous population was the target ofdiscrimination.[28] Compared with minority rights, rights of indigenous people are moreoften to encounter in domestic legislation and more readily recognized as grouprights[29] than minority rights. For example, the 1994 United Nations DraftDeclaration on the Rights of Indigenous People declares to be “collectiverights” many of the rights included in the Declaration.[30] An exception in this tendency is the Vienna Declaration referringto “the rights of indigenous people”, not peoples.[31]

A group of so called collective cultural rights implies anindividual’s right in community with others to take part in cultural life. Thisright is recognized in the 1966 UNESCO Declaration of the Principles ofInternational Cultural Co-operation[32] and separately protected in ICESC[33] 15 (1)(a). The right to profess and practice a religion incommunity with others is declared in ICCPR[34] 18 (1). Surprisingly, the right to use a language is provided byneither of them.[35] The right to the common heritage of mankind is included in theUNESCO Draft Declaration on the Safeguarding of Future Generations of 1997.[36] Thisright is supposed to be more comprehensive than other cultural rights. Itprovides every individual, in community with others, with the right to share“Earth and space resources, scientific, technical, and other information andprogress, and cultural traditions, sites, and monuments.”

The collective right to peace and security or “the right to life inpeace” is declared as a right of “every nation and every human being” in theDeclaration on the Preparation of Societies for Life in Peace, adopted by theUN General Assembly in 1978[37]. The Declaration on the Right of Peoples to Peace, adopted by theUN General Assembly in 1984[38] (§ 1) “solemnly proclaims that the peoples of our planet have asacred right to peace.”

The right to use of wealth and resources or the right to sovereigntyover natural resources might be described as an economic counterpart of theright to self-determination. There is an opinion that the permanent sovereigntyof peoples and nations over their natural resources is a component of the“principle of equal rights and self-determination of peoples” declared in theUN charter (article 1).[39]

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

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

Moreover, the article 47 of the ICCPR and the article 25 of theICESCR state:

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

In the most completed form this right is declared by the article 21of ACHPR.[40] All the above mentioned documents limit the right to sovereigntyover natural resources by “obligations arising out of international economiccooperation” and by international law.

One of the most significant collective rights — the right todevelopment, according to some commentators, is “difficult to define as a humanright”, because it rather “tends to suggest the presence of certain conditionsconducive for human rights ”.[41] The origin of this right is tracked back by some authors to the1944 Declaration of Philadelphia,[42] adopted by the General Conference of the International Labor Organization,which stated, that “all human beings, irrespective of race, creed or sex, havethe right to pursue both their material well-being and their spiritual freedomin conditions of freedom and dignity, of economic security and equalopportunity”.

The right to development as a human right was launched by KebaM’Baye, that time Chief Justice of Senegal, in his inaugural lecture on thatsubject to the 1972 study session of the International Institute of HumanRights in Strasbourg. In 1986 the General Assembly adopted the United Nationskey document in this field — the Declaration on the Right to Developmentsetting up the right to development as “an unalienable human right”.[43] TheVienna 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 offundamental human rights”.[44] However, the most commentators agree, that this right doesn’treally have any enforceable means of implementation except for in the regionalACHPR system.[45] The right has been discussed broadly in recent years.[46] Partly,because the economic circumstances in many countries are such, that theirinhabitants’ rights are violated steadily, and partly also because someprograms for the economic development of these countries may themselves resultin deprivation of human rights.[47] There is no generally agreed definition of the nature or scope ofthe right to development in the context of human rights. Many authors agreewith the collective nature of this right[48], however, the right to development might be considered as beingboth of collective and individual nature.[49] The UN Declaration on the Right to Development defines the right todevelopment as right to participate in, contribute to, and enjoy economic,social, cultural and political development, in which all human rights andfundamental freedoms can be realized;[50] So, the right to development is supposed to have not onlyeconomical and social dimensions, but cultural and political as well.[51]

As individual human right, the right to development, represents akind of combination of all individual human rights or the basis of all otherrights. The individual right to development is a right to human flourishing inall spheres of life[52] in other words the individual right of every person to benefit froma developmental policy.”[53] An important element of the right to development as an individualhuman right is politic and economic “active participation”.[54] Article3 (3) of the Declaration on the Right to Development states, that nationaldevelopment policies must be based on “active, free and meaningfulparticipation in development and in the fair distribution of the benefitsresulting therefrom.” The article 8 (2) requires, that “States should encouragepopular participation in all spheres as an important factor in development andin the full realization of all human rights.” Pursuing these aims states areobliged to ensure “equality of opportunity for all in their access to basicresources, education, health services, food, housing, employment and the fairdistribution of income”.[55] It should be noted that the participatory element is essential inother collective rights as well.

As a collective right the right to development implies fullrealization of the right of peoples to self-determination, which includes,subject to the relevant provisions of both International Covenants on HumanRights, the exercise of their inalienable right to full sovereignty over alltheir natural wealth and resources. (Article 1 (2) of the United NationsDeclaration on the Right to Development)). The double role of the state inrelation to collective rights can be illustrated the best on the example ofthis right. Acting as responsible for the promotion and protection of the rightto development on national level states have the duty to formulate appropriatenational development policies that aim at the constant improvement of thewell-being of the entire population and of all individuals (article 2 (3) ofthe United Nations Declaration on the Right to Development)). Acting asrepresentatives of nations on the international level states are obliged “totake steps, individually and collectively, to formulate internationaldevelopment policies with a view to facilitating the full realization of theright to development” (article 4 (1)).

A collective human right with regard to the environment is notgenerally accepted. It is included in the Rio Declaration concluding the 1992United Nations Conference on Environment and Development[56] by reference to the right to development. The Vienna Declarationadopted the same position. § I/11 of the Declaration states “The right todevelopment should be fulfilled so as to meet equitably the developmental andenvironmental needs of present and future generations.”[57] In many documents this right was mentioned not as a collectiveright but among the rights of individuals.[58] The collective environmental right is provided by the 1981 AfricanCharter on Human and Peoples’ Rights in the following formulation: “All peoplesshall have the right to a general satisfactory environment favorable to theirdevelopment”(article 24).[59]

The right to humanitarian assistance is described in the guidingprinciples for the strengthening of the coordination of humanitarian emergencyassistance of the United Nations as having cardinal importance for the victimsof natural disasters and other emergencies[60]. However, there is no mechanism to enforce this right at theinternational level (except for the ACHPR).

We could see that there are many collective rights declared ininternational and regional human rights instruments, and recognized by the internationalcommunity. However, some commentators suggest that the status of collectiverights as international human rights standards still remains ambiguous.[61] On thereason that a “people” cannot consist of anything more than the individuals whomake it up, collective human rights are viewed as a non-existing concept andconsidered as rights of all individual human beings.[62] Many authors consider these rights to be too vague to bejustifiable, and nothing more then slogans promoting goals of the UnitedNations, and sometimes even used for propaganda purposes in some countries.[63]Besides, the skeptical attitude towards collective rights is largely based onsupposed impossibility of enforcement of collective rights.[64] Thecurrent trend in the international human rights law and theory shows weaknessof these views[65] Moreover, many authors and legislators agree that the traditionalsystem of individual human rights combined with non-discrimination provisionsis not sufficient for the protection of the rights of individuals as groupmembers. [66]

Nonetheless, there is widespread opinion that indiscriminaterecognition of numerous demands or values as human rights would weaken the ideaof human rights in general. [67] However, the inclusion of collective rights (the right to politicaldetermination and the right to sovereignty over natural resources) in the twofundamental universal human rights instruments over thirty years ago has notruin individual human rights and it is doubtful to do so.[68] In thesame way many authors are afraid of possible underestimation of individualrights in favor of collective rights. This idea is supported by the fact thatthe worst violations of individuals’ human rights occurred in the name of some“inspiring abstraction”, such as “the one true faith”, “the nation”, “theState”, etc. The term “people” is an abstraction as well. As a result, graveabuses of individual human rights might occur under “legitimating” label ofcollective interest, if any of the individual rights and freedoms protected bymodern international human rights law ever will be regarded as in some senseinferior to peoples’ rights. [69] On the other hand, there is a view that “peoples… are above allpeople”[70] and that consequently such order has its advantages as well.According to the latter approach the main function of collective rights isstill their benefit to the individual. Groups have no ultimate or necessaryvalue, but they are a way in which individuals achieve various ends, which arenecessary or desirable (in particular the good of community and the fulfillmentof certain human capacities and attributes which are best fulfilled incommunity.)[71] There is an opinion, that recognition of collective rights as humanrights is meaningful as far as specific collective goods are essential forhuman self-realization. Such a conception of collective rights is called the“collective” conception, as opposed to the “corporate” one. The latterconception implies that rights are held by a single corporate entity and usedfor pursuing a common aim, unconnectedly to any individual composing it;whereas in the “collective” conception the rights are united, but the interestsof the group members are different.[72]

At all events, collective human rights are considered as animportant component of the protection of individual human rights, as, forexample, wars and local armed conflicts are clearly the most significant causesof violations of individual human rights. The collective character of the firstrights is justified from the insider perspective of the suffering individuals,who frequently experience their suffering as group suffering.[73]Furthermore, since 1945 the object for many serious human rights violationswere ethic groups as such. Therefore as the injustice is uphold by hostileattitude towards groups, the solution requires the promotion of the dignity ofgroups.[74] A clearer definition of collective rights would probably helpreconcile conflicting views. The meaning of “peoples” notion is uncertainitself. There are many groups within a State – is every one of them entitled tobe called “peoples” and claime, as a result, for its rights to be recognized?Is any given individual a member of a certain group sharing the group’s rights?Perhaps the most advanced definition would be the following one: “[Peoples are]collective entities based upon unifying, spontaneous [as opposed to artificialor planned] and permanent factors, as rule beyond the will of the members ofthe group.”[75] In addition, the territorial basis of such unifying has to be takeninto consideration in almost all situations.

The next suggestion of the collective rights’ critic is theuncertainty of the opposing party in emerging obligation. It is not difficultto identify the entities that have the duty to respect and secure the rights ofindividuals (the State, its government, or other public authorities). Thisobligation is imposed on those who have it in their power to perform them.Hence, it is not clear who is in power to ensure for people the right todispose of its natural wealth and resources for example. In Karel Vasek’s viewthe solidarity rights are rights with undetermined subjects and opposing to allcenters of power.[76] That power can be spread very thinly over other States, public andprivate ,national and international bodies, and many individuals. The right topeace, the right to a healthy environment and similar rights can be consideredas rights even not of a group of people, but of the whole human race entailingobligations of all the above-mentioned subjects and the human race itself. Itis almost impossible to demonstrate that any one, or more of them has breachedthe obligation, since collective rights might be viewed as being “higher” thanthe level of states’ responsibility, which argument supports the opinion aboutlegal non-enforceability of collective rights.

The possible solution could be to regard a state as responsiblebefore it’s population for performing in it’s competence the duties imposed bycollective rights’ obligations, and as a representative of it’s population inprotecting these rights on the international level,[77] bearing in mind that these are primarily governments, who have to takethe prime responsibility for promoting and protecting human rights.[78]

Some commentators consider collective rights as a product of boththe rise and the decline of the nation-state in the last half of the 20thcentury.[79] In this case collective rights are understood as reflecting theemergence of Third World nationalism and its «revolution of risingexpectations» (i.e., its demand for a global redistribution of power,wealth, and other important values or capabilities) and suggesting theimpotence or inefficiency of the nation-state in certain critical respects. [80]

Considering the role of states with regard to collective rights somewriters “distrust” collective rights since states might interpret these rightsas state’s rights widening the area for individual rights abuses. However,states violate the rights of collectives in the same way as they violate therights of individuals. They also promote the rights of collectives as theypromote the rights of individuals. Therefore, collective rights have to be opposableto the states in the same manner as individual rights. Considering the natureof collective rights, some of them have to, and are able to be opposed againstforeign states and against the international community as well. The lattercharacteristic demonstrates an unarguable advantage of collective rights beforeindividual rights. [81].

The status of collective rights differs not only in scientist’sviews, but also in accordance with a kind of geographical criterion. Collectiverights are traditionally given more attention in the non-Western societies,where the communal dimension is more important to individual well being than inthe Western societies. The interests of the group are automatically amongperson’s interests.[82] On this reason international human rights frequently undergo criticin the non-Western countries, since the conflict between the individual and thecommunity is the base of the human rights law originated in the Westerncountries. The promotion of collective human rights expresses the efforts ofnon-Western governments to assert their values on international level. As anexample of this tendency may serve the 1976 Universal Declaration of the Rightsof Peoples adopted in Algiers. Upon the non-Western way of thinking are basedthe so-called collective “Third Worldist” and “globalist” approaches[83] tocollective human rights similarly perceiving these rights as a proper responseto the globalization and the unconditional control of the Western countriesover the international politics.

In this way some commentators challenge the universality of collectiverights on the ground, that some groups of peoples do not need them at all. Itcan be true with regard to minority and indigenous peoples’ rights, but thisargument is void concerning other collective rights, which are attributed toall people. For example, peoples from rich countries enjoy a right todevelopment on an equal base with people from poor ones, but the protection ofthe first’s right does not require any action. In the same way providing forspecial rights to children or women doesn’t violate their universality. EvaBrems argues that human rights can be stipulated on behalf of certaincategories of individuals or groups as long as these same rights are not deniedto others.[84]

It seems that the arguments against collective rights are oftenbased on the fact that many people are less sympathetic to the rights of othersas a group, especially, when that group is perceived as very different.[85] Theinternational collective human rights’ concept is still in process ofdevelopment, and that we may say about many of international human rights.However, such a view is particularly true with regard to this group of rights.The potential of collective rights is great and the view that “individual humanrights … are a safer and probably more effective course to pursue human rights”[86] willprobably change. Collective human rights are recognized and protected in manyof international human rights documents. There is a large academic interest tothe topic as well, especially in connection with the globalization issues. And,although there is a role for international human rights instruments they inthemselves will not rid the world of human rights violations.[87]

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