Solidarity rights:universality and diversities (73577-1)Посмотреть архив целиком
Solidarity rights:universality and diversities
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.3 Some 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.4 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.”5 This triad of democracy, development, and human rights reflects the fundamental 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, the property right of the common heritage of mankind, and the right to humanitarian assistance.
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.7 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),8 and other collective human rights;9
- 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).10 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.11 Throughout 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.”12
In the probably most progressive document concerning collective human rights - the 1981 African Charter on Human and Peoples’ Rights (ACHPR)13 (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.14
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 Genocide15 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”.16
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.17 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.”18.
The protection of minorities, reflecting the needs of minorities and groups as collectives,19 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.20 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.21 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).22