2 Article 8 Background
2.3 Basic Human Rights Documents
國
立立 政 治 大
㈻㊫學
•‧
N a tio na
l C h engchi U ni ve rs it y
person to live a good and decent life. Nickel concludes that: “because these principles prescribe a secure floor of respect, protection, and provision for each person, they hold a prospect of grounding the universality of specific human rights.”39
Donnelly is suggesting the term "relative universality," as a middle course between radical relativism and radical universalism. Whereas radical realism considers culture as a source of all values, universalist's approach sees all values as well as human rights to be entirely universal without any cultural influence.40
2.3 Basic Human Rights Documents
The necessity to create an international framework, which would protect human rights of the individual human beings, regardless their nationality, race, or religion, began to gain a significant support after the end of the World War II. The gradually revealed atrocities of Holocaust mobilized the general public as well as politicians to face this new situation by establishing fundamentally different and internationally recognized human rights frameworks. During the Wartime period, many states failed to ensure even basic rights of their citizens. Moreover, in some cases it was the State that was actually supportive to diverse atrocities committed against either concrete ethnic groups or various minorities in broader sense. These were not only Jews, but also Roma people, disabled people, homosexuals etc. The experience from the World War II clearly revealed that mechanisms at the domestic level could not effectively ensure sufficient human rights enforcement, and for that reason it was necessary to create international mechanism, which would provide sufficient safeguards.
The notion of human rights after the World War II was indeed something unique, especially because the world powers agreed to sit together and discuss the creation of
39 James Nickel, Making Sense of Human Rights (Blackwell Publishing, 2007), at p. 62.
40 Jack Donnelly, International Human Rights (Westview Press, 2007), at p. 37.
•‧
國
立立 政 治 大
㈻㊫學
•‧
N a tio na
l C h engchi U ni ve rs it y
the United Nations. Mark Mazover is describing two most common explanations of this human rights success after the World War II in the article “The Strange Triumph of Human Rights.”41 He titles these explanations the “Eleanor Roosevelt version” and the “Adolph Hitler version.” President Harry S. Truman appointed Eleanor Roosevelt as a delegate to the UN General Assembly, where she chaired the committee that drafted the Universal Declaration of Human Rights. Her “version” symbolizes the visionary individuals who determinedly advocated and fought for the human rights.42
“Hitler version,” on the other hand symbolizes the action, people took to avoid similar situation to Holocaust and the horrors of the War, to ever happen again.
However, both explanations do not really clarify the difference from previous attempts. There were many tyrants as well as human rights advocates in the history, but they did not have the analogous effect to the post war situation. What was then the key difference and main reason that contributed to the human rights triumph in the post war period? To better understand the development, which led to this “triumph,”
we have to understand the changes in the perception of human rights during the first half of the twentieth century. In addition to that, we should also focus on the evolution of United Nations in the light of historical context.
The UN predecessor, the League of Nations, was founded after the World War I.
with its main purpose to serve as a forum, which could maintain the peace and solve disputes between states through peaceful dialogue. During this time, human rights issues focused particularly on the minority rights and on the right to self-determination.43 This concrete focus was reflecting the situation on the European continent in the first half of the twentieth century. After the collapse of the
41 Mark Mazower, The Strange Triumph of Human Rights, 1930-1950.
42 Ibid. at p. 380.
43 Stephen James. Universal Human Rights. New York, LFB Scholarly Publishing LLC, 2007, at p. 31-32.
•‧
國
立立 政 治 大
㈻㊫學
•‧
N a tio na
l C h engchi U ni ve rs it y
Hungarian Empire, by using the right to self-determination, some nations were allowed to found their own states. This consequently led to the establishment of numerous new countries on the European continent. However, the problem was that not all the nations were allowed to claim the right to self-determination in order to create their own country, or simply to decide their own fate. This situation was a tickling bomb, which eventually exploded in 1938. The Nazi Germany seized the opportunity to proceed with its revisionist policy toward its neighbors, Czechoslovakia and Poland, in the name of the right to the self-determination for the German minorities living on the territory of these countries.
After the end of War, it was necessary to establish a new international regime, which could protect basic human rights even “against the encroachment by the national States’.”44 Such approach would allow creating an effective institution, which would have more powers to solve the human rights issues by an active involvement. However, the feasibility of such plan is questionable, because the big powers would never join the organization if it could intervene in their internal affairs.
As Mazower concludes, “so far as the superpowers were concerned, human rights were strictly for export.”45
The need to defend the individual rights instead of the minority rights was there from the beginning of the talks during the wartime period. This is understandable if we take the collective rights as one of the causes, or pretexts for the World War II.
Nowadays we know that the Hitler’s interest in the German minority in Sudetenland was not really because of the people’s welfare. Ironically, Hitler who was eagerly
44 Mark Mazower, The Strange Triumph of Human Rights, 1930-1950, at p. 385.
45 Ibid. at p. 397.
•‧
國
立立 政 治 大
㈻㊫學
•‧
N a tio na
l C h engchi U ni ve rs it y
fighting for the rights of the one minority in Czechoslovakia and Poland before the World War II basically annihilated another European minority in the next few years.46
This stance of switching the human rights focus was also strongly supported by the Czechoslovak exile President Edvard Beneš, who wanted to see Germans out of Czechoslovakia immediately after the end of the World War II. However, nowadays the expulsion of Germans out of the Czechoslovakia could be seen as revenge more than anything else, which caused deaths of thousands of people.47 Evidently, right after the World War II, neither collective, nor individual human rights were available for the members of the German minority. Quite ironically, we could say that one of the reasons for the “strange triumph of the human rights” was the timing and the intensity of human rights’ abuses during the wartime period. The Revealing of Holocaust horrors activated the whole spectrum of population around the globe and put the human rights issues in the front of everybody’s attention.
As a consequence, the Universal Declaration of Human Rights (UDHR) was adopted by the General Assembly on 10 December 1948. The Declaration encompasses 30 articles, which cover the most fundamental human rights. The Declaration contains both types of rights, civil and political as well as social and cultural rights. It condemns discrimination,48 slavery and servitude,49 torture and inhumane treatment.50 It also contains right to freedom of thought, conscience and religion,51 opinion and expression,52 and association.53 The social, economic and
46 Systematic state-sponsored killing of approximately six million of Jews during the World War II.
47 Mark Mazower, The Strange Triumph of Human Rights, 1930-1950, at p. 388.
48 UDHR, Art. 1-2.
49 Ibid. Art. 4.
50 Ibid. Art. 5.
51 Ibid. Art. 18.
52 Ibid. Art. 19.
53 Ibid. Art. 20.
•‧
國
立立 政 治 大
㈻㊫學
•‧
N a tio na
l C h engchi U ni ve rs it y
cultural rights are represented for example by the right to have a cultural life,54 right to rest,55 or by the right to work.56 The Declaration itself is not legally binding, and we can understand it rather as a proposal or manifesto of moral aspirations. The Preamble proclaims the Universal Declaration of Human Rights “as a common standard of achievement for all peoples and all nations.” Although lacking the legally binding power, the Declaration is giving an important guidance to States, but also a blueprint to following international human rights conventions.
The International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights came into existence in the same year (1976). The existence of two separate covenants covering different sets of rights clearly illustrates the situation during the Cold War Era, and the inability of the two rivals, the United States and the Soviet Union, to find a common language. Whereas the “Capitalist West” perceived the civil and political rights as the most important, the
“Communist East” favored the economic, social and cultural rights to be achieved before the actual realization of the civil and political rights. This situation also brought a vivid discussion regarding the importance of each group of rights and their possible hierarchy. The civil and political rights are often perceived as negative rights, whereas the economic, social and cultural rights are considered to be positive rights, requiring costly actions by governments.57
However, this stance has been often criticized for being oversimplifying the relatively complex situation. We can illustrate this problem on the issue of the law enforcement, concretely on the right to have access to legal remedies, which is encompassed in the Article 2 of the ICCPR. This right is among the civil and political
54 UDHR. Art. 27.
55 Ibid. Art. 24.
56 Ibid. Art. 23.
57 Jack Donnelly. International Human Rights (Westview Press, 2007), at p. 5-6.
•‧
國
立立 政 治 大
㈻㊫學
•‧
N a tio na
l C h engchi U ni ve rs it y
rights, but in the reality, the access to legal remedies would not be possible without the existence of courts, without proper education of judges, establishment of prisons etc. One of the critiques Jack Donnelly comments that: “the moral basis of the positive-negative distinction is also questionable. Does it really make a moral difference if one kills someone through neglect or by positive action?”58 Currently, the number of signatories to both Conventions is similar (167 ICCPR, 160 ICESCR).
All three documents (UDHR, ICCPR, and ICESCR) follow the similar structure. Both the ICCPR and ICESCR begin with the right to self-determination, which is identically worded. The ICCPR is divided into six parts, consisting of fifty-three articles, and the ICESCR is divided into five parts, which consist of thirty-one articles.
The ICCPR is monitored by the Human Rights Committee (HRC), whereas the ICESCR by the UN Committee on Economic Social and Cultural Rights.
The following table is transformed from Donnelly’s chart,59 which was originally only referring to the so-called International Bill of Rights (UDHR, ICCPR, ICESCR), omitting the ECHR. There is added column referring to the ECHR in order to make an interesting comparison of the four important human rights documents, and also to illustrate their scope, and range of rights they encompass.
Table 1 Rights included in basic human rights documents
Rights
Human Rights Document UDHR ICCPR ICESCR ECHR
Equality of rights without discrimination 1, 2 2, 3 2, 3 1, 14
Life 3 6 2
Liberty of security of person 3 9 5
Protection against slavery 4 8 4
Protection against torture and cruel and inhuman punishment 5 7 3
Recognition as a person before the law 6 16 2
58 Jack Donnelly, International Human Rights (Westview Press, 2007), at p. 27.
59 Ibid. at p. 7.
•‧
Access to legal remedies for rights violations 8 2 13
Protection against arbitrary arrest or detention 9 9 5
Hearing before an independent and impartial judiciary 10 14 6
Presumption of innocence 11 14 6
Protection against ex post facto laws 11 15 7
Protection of privacy, family, and home 12 17 8
Freedom of movement and residence 16 12
Seek asylum from persecution 14
Nationality 15
Marry and found a family 16 23 10 12
Own property 17
Freedom of thought, conscience, and religion 18 18 9
Freedom of opinion, expression, and the press 19 19 10
Freedom of assembly and association 20 21, 22 11
Political participation 21 25
Social security 22 9
Work, under favorable conditions 23 6, 7
Free trade unions 23 22 8
Rest and leisure 24 7
Food, clothing and housing 25 6, 7
Health care and social services 25 12
Special protection for children 25 24 10
Education 26 13, 14
Participation in cultural life 27 15
A social and international order needed to realize rights 28
Self-determination 1 1
Humane treatment when detained or imprisoned 10
Protection against debtor's prison 11
Protection against arbitrary expulsion of aliens 13 Protection against advocacy of racial or religious hatred 20
Protection of minority culture 27
*Modified: Jack Donnelly, International Human Rights (Westview Press, 2007), at p. 7
**Numbers represent concrete Articles dealing with these rights
•‧
國
立立 政 治 大
㈻㊫學
•‧
N a tio na
l C h engchi U ni ve rs it y
2.4 European Convention of Human Rights – Characteristics and