2 Article 8 Background
2.2 Basic Understandings and Justification of Human Rights
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the European Convention on Human Rights and the European Court of Human Rights is in a separate subchapter, because of the high relevancy to the content of this thesis.
At the end of this Chapter, there is a detailed analysis of the Article 8 of the ECHR as well as a concrete formulation of the understanding of the term of individual and collective human rights used in this thesis.
This chapter is not meant to give an exhaustive amount of information about the human rights background, human rights theories, or all the relevant human rights documents. The intention is to give sufficient background information, which would allow reader with no particular educational experience in international law and human rights, to understand the complexity of this topic, and to make it easier to understand the case studies later analyzed in the Chapter 3.
2.2 Basic Understandings and Justification of Human Rights Human rights, as we understand them nowadays, are rather a new phenomenon, dating back for only few decades. Despite this relatively young age, the notion of human rights has to be taken seriously by all states. With the enactment of various international conventions and creation of international organizations, human rights have gained a legal basis and a relatively stable position within the international law regime. Indeed, there have been numerous notions of human rights movements during the long history of mankind, however usually discriminating certain groups of people, either because of the nationality, ethnicity, religion, or sex. Therefore, these movements, even though important for the evolution of human rights, are incomparable with the movement after the World War II. Before the War, the idea of human rights usually did not extend beyond borders of sovereign states. In other words, the sovereign state was the final authority to decide on its citizens' rights,
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accepting no interference in domestic affairs by other states. Any kind of international and "beyond the sovereign state" entity, enforcing human rights or constraining states' action, was something unimaginable for a long period of time. However, in the response to Holocaust and other horrors of the World War II, the Universal Declaration of Human Rights, which unanimously adopted by the UN General Assembly in 1948, gave a crucial blueprint for creation of following human rights documents. “The acknowledgment of human right as an issue by the international community has led to the creation of a vast network of laws, treaties, and international organizations. Moreover, most states today recognize some limits to their sovereignty and, at least ostensibly, acquiesce to treaties and covenants designed to protect those rights.”29
But how can we explain the existence of human rights? Who is entitled to have them? Are they justifiable and universally applicable, or it is the West that is trying to export its ideas and principles to countries with completely different values and traditions? These are several questions, to which this section is trying to find some possible answers. The aim of this Chapter is not to give a list of all existing theories and views on the existence and justification of human rights, which would be in any case impossible, instead it is trying to include those theories and ideas, which are interesting and meaningful for my research.
As a starting point, we should define the actual meaning of human rights.
Nickel’s definition offers a relatively complex and understandable description;
therefore some of his basic characteristics and explanations have been included in this part. According to him, human rights are high priority and mandatory norms with
29 Julie Harrelson-Stephens and Rhonda L. Callaway, "What Are Human Rights? Definitions and Typologies of Today's Human Rights Discourse," in Exploring International Human Rights, ed. Rhonda L. Callaway and Julie Harrelson-Stephens (London: Lynne Rienner Publishers, 2007), at p.4.
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strong justification, because they are dealing with serious issues of human life. People are the right-holders and states are the principal addressees of human rights. This however does not mean that states are giving these rights by themselves, they are only addressing them.
Human rights should be viewed rather as minimal standards, which constrain states, the main addressees, from different types of threats and acts, which could deprive people of their dignity. Nickel comments that: “human rights aim at avoiding terrible rather than achieving the best.” 30 This is a very important observation, because if human rights would be dealing with some marginal issues, their general acceptance would be endangered globally, and their status could be undermined as well. To be more specific, there are many differences between countries around the globe regarding their resources and capabilities to ensure certain level of services.
This means that not every country can provide the same standards to its citizens.
Currently, there have been debates in many developed countries whether for example the right to free education should also cover the higher education, including universities. At the same time, in many developing countries even the elementary education is often considered to be too luxurious for some families to provide their children with.
Thus, if we keep human rights as minimal standards, they could remain not only achievable in general, but also more attractive for all types of states, regardless their economic situation and capabilities. Indeed, we still should keep on mind that these are only the minimum standards, which must be secured, but states should try to go beyond these, if they have such opportunities. We should stay realistic and try to secure the most basic rights first, no matter how great ideas of broad spectrum of
30 James Nickel, Making Sense of Human Rights (Blackwell Publishing, 2007) at p. 36.
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human rights we might have. If such broad spectrum of rights was required from all countries at the same time and regardless their current capabilities, the whole notion of human rights could lead to the totally opposite conclusion, because many States would simply view these rights as unattainable and too expensive dreams.
Shue defines the basic rights as “minimum reasonable demands upon the rest of humanity.”31 He argues that this set of rights must be secured first; otherwise the other rights cannot be enjoyed. Among these basic rights belong security rights as well as subsistence rights. Without enjoying the right to physical security, we could hardly enjoy any other rights, because of the threat of murder, rape, or physical punishment.
The so-called subsistence rights are essential as well because “deficiencies in the means of subsistence can be just as fatal, incapacitating, or painful as violations of physical security.”32 Under the term subsistence, we could find issues of sufficient nourishment, proper health care, access to drinking water etc. According to Shue’s understanding, security rights and subsistence rights are rather parallel in their existence, and should be fulfilled simultaneously.
The question about who has human rights could be answered relatively easily, just by looking at the term “human rights” itself. We can assume that simply by being a human being, we have human rights. Since all human beings have these rights, regardless the place they live or their race or religion, they are universal, which means that they protect all people without exception. The Universal Declaration of Human Rights in its first Article states that: “all human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act
31 Henry Shue, "Basic Rights," in Exploring International Human Rights, ed. Rhonda L. Callaway and Julie Harrelson-Stephens (London: Lynne Rienner Publishers, 2007), at p.16.
32 Ibid. at p.18.
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towards one another in a spirit of brotherhood.”33 We can argue that human rights are egalitarian, which means that all people are equal and there are no differences between them.
However, from the historical perspective, this stance is relatively new, at least on the global scale, coming into actual practice in the second half of the twentieth century. It would be wrong to assume that there was no substance of human dignity and human rights until the twentieth century; on the contrary, we can find many of these conceptions rooted in Buddhism, Christianity, Hinduism, or Islam. However, as James comments, “the universalist potential was not realized due to intolerance, racism, sexism, and so on,”34 therefore we could not really talk about the universal human rights. Indeed, if we critically look at the actual implementation of the egalitarian understanding of human rights in the last century, we can observe that it has been facing many problems as well. Issues such as racial segregation in the United States, problem of self-determination of the formal colonies after the World War II, apartheid in the South Africa, or the unequal position of women in Muslim countries, are only few of many setbacks and complications contesting the actual universality of human rights. Even in the twenty first century, there is still large number of countries, where the conditions regarding human rights are far from the ideal situation and need to be improved.35
If we accept that every living person has equal human rights, then we come to an important finding. Human rights are independent on national boundaries or recognition by governments. Although the state is the main addressee of human rights, it is not necessarily the positive protagonist. In some countries the administration is
33 The Universal Declaration of Human Rights (UDHR), 1948. Article 1.
34 Stephen James, Universal Human Rights (LLFB Scholarly Publishing, 2007), at p. 8.
35 More information about the situation can be found in the annual Human Development Report, published by the United Nations Development Programme.
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not capable to maintain the human rights standards, and in some cases it is actually the administration itself that is mistreating its citizens, restricting their human rights, or treating them unequally. However, also for this reason, human rights can very well serve as international standard of evaluation. Simply by looking at the position of basic human rights in one concrete country, we can relatively well estimate the situation regarding the relationship between the government and citizens. The Office of the United Nations High Commissioner for Human Rights publishes the Human Rights Index36, which comprehensively describes the human rights situation around the world. This existence of human rights regardless governments and boundaries supports another characteristic of human rights, the inalienability. In other words, governments do not give human rights to us, for this same reason they also cannot take them from us. However, the issue of inalienability can be viewed as relatively controversial, because under many circumstances human rights can be actually limited and temporarily constrained. Moreover, in some circumstances people can give up some of their rights, for example when entering the army or taking some specific position requiring special working regime.
On what grounds can we justify human rights? There are various theories and debates trying to answer this question. They would include linkages to natural law, role of religion, anthropology, psychology etc. However, all these attempts to find a single and fully accepted theory that would give us a sufficient answer regarding the justification of human rights have not been successful. The non-existence of single grounded theory might be perceived as disadvantage or shortcoming, however in my opinion it merely shows the importance of human rights question. The more scholars
36 For more information see the United Nations Human Rights Office of High Commissioner, Human Rights Index webpage: http://uhri.ohchr.org/en
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and academics are being involved in researches and discussions, the more are human rights perceived as a living issue that is also more visible to general public.
In order to illustrate this difficult situation, it is appropriate to briefly describe some of the interesting positions we can take, to justify the existence and universality of human rights. For this purpose, this Chapter includes a brief look at the prudential and utilitarian justification of human rights, explaining differences between relativist and universalist understandings, and also giving a glimpse at the so-called four secure claims elaborated by Nickel.
The prudential understanding can be simply illustrated by an example of person, who accepts and supports human rights, simply because it is in his/her interest to do so. This person realizes that in order to live in more safer and harmonious society, where the observance of human rights by the higher authorities makes life more secure and flourishing, it is in his/her interest to support human rights. Because “if human rights generally serve people’s most basic prudential interests, and generate widely available secondary benefits as well, this helps explain why people have good reasons to respect them and to demand that their governments respect and protect them.”37 The Utilitarian justification can be explained by presuming that “what is best for the general welfare should be promoted.” In other words, the main determination is achieving happiness and diminishing suffering. Under this understanding, the basic human rights, such as protection of life and other liberties, would be profitable for the general welfare, maximizing the happiness, and therefore justifiable.
Especially interesting is Nickel’s idea that all human beings have four secure and moral claims. These so-called “claims” can be simply understood as set of basic human rights. They include a claim (right) to have a life and to lead one’s life. These
37 James Nickel, Making Sense of Human Rights (Blackwell Publishing, 2007), at p. 57.
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two are followed by a secure claim against severely cruel or degrading treatment, and against severely unfair treatment.38 There are both positive and negative obligations encompassed in these rights. For example the secure claim to have a life can be understood from both aspects: someone has a right to live and not to be murdered, but also the government should make positive actions to prevent murders from happening.
It is also important to look at this claim from much broader perspective. It is not only question of letting somebody live and prevent others to kill him, this right to live includes many other things, we might not see at the first sight. We cannot live without proper nourishment, without sufficient healthcare or shelter. The secure claim to lead one’s life encompasses the freedom and independency of human beings to decide their life path freely. Under this claim we would find not only strong argument against slavery, but also to right to free movement, marriage or belief.
Again, this claim includes both positive and negative obligations, where the positive would include for example the legal framework to ensure these rights, but also to provide favorable conditions as well as protection. The third and fourth claim could be included into the first two claims; nevertheless it is useful to briefly describe Nickel’s own understanding of their scope. Their focus might look similar and overlapping; however after closer examination, we can find some distinctive differences. The secure claim against severely cruel or degrading treatment basically condemns any caused suffering and inhumane treatment. The secure claim against severely unfair treatment on the other hand focuses on cases of especially intense injustice. This would cover right to fair trial as well as protecting innocent people against imprisonment. These four areas of rights should be obligations to everyone, therefore respected and protected. When fulfilled, these claims would allow every
38 James Nickel, Making Sense of Human Rights (Blackwell Publishing, 2007), at p. 62.
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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