HUMAN RIGHTS CONCEPTS, IDEAS AND FORA / PART I: THE CONCEPT OF HUMAN RIGHTS / DEFINITIONS AND CLASSIFICATIONS
DEFINITIONS AND CLASSIFICATIONS
Human rights are commonly understood as inalienable fundamental rights to which a person is inherently entitled simply because she or he is a human being. This chapter examines the concept of human rights and its origins, explaining the different terms and classifications.
A. Historical antecedents
The origins of human rights may be found both in Greek philosophy and the various world religions. In the Age of Enlightenment (18th century) the concept of human rights emerged as an explicit category. Man/woman came to be seen as an autonomous individual, endowed by nature with certain inalienable fundamental rights that could be invoked against a government and should be safeguarded by it. Human rights were henceforth seen as elementary preconditions for an existence worthy of human dignity.
Before this period, several charters codifying rights and freedoms had been drawn up constituting important steps towards the idea of human rights. During the 6th Century, the Achaemenid Persian Empire of ancient Iran established unprecedented principles of human rights. Cyrus the Great (576 or 590 BC - 530 BC) issued the Cyrus cylinder which declared that citizens of the empire would be allowed to practice their religious beliefs freely and also abolished slavery. The next generation of human rights documents was the Magna Charta Libertatum of 1215, the Golden Bull of Hungary (1222), the Danish Erik Klipping’s Håndfaestning of 1282, the Joyeuse Entrée of 1356 in Brabant (Brussels), the union of Utrecht of 1579 (The Netherlands) and the English Bill of Rights of 1689. These documents specified rights which could be claimed in the light of particular circumstances (e.g., threats to the freedom of religion), but they did not yet contain an all-embracing philosophical concept of individual liberty. Freedoms were often seen as rights conferred upon individuals or groups by virtue of their rank or status.
In the centuries after the Middle Ages, the concept of liberty became gradually separated from status and came to be seen not as a privilege but as a right of all human beings. Spanish theologists and jurists played a prominent role in this context. Among the former, the work of Francisco de Vitoria (1486-1546) and Bartolomé de las Casas (1474-1566) should be highlighted. These two men laid the (doctrinal) foundation for the recognition of freedom and dignity of all humans by defending the personal rights of the indigenous peoples inhabiting the territories colonised by the Spanish Crown.
The Enlightenment was decisive in the development of human rights concepts. The ideas of Hugo Grotius (1583-1645), one of the fathers of modern international law, of Samuel von Pufendorf (1632-1694), and of John Locke (1632-1704) attracted much interest in Europe in the 18th century. Locke, for instance, developed a comprehensive concept of natural rights; his list of rights consisting of life, liberty and property. Jean-Jacques Rousseau (1712-1778) elaborated the concept under which the sovereign derived his powers and the citizens their rights from a social contract. The term human rights appeared for the first time in the French Déclaration des Droits de l’Homme et du Citoyen(1789).
The people of the British colonies in North America took the human rights theories to heart. The American Declaration of Independence of 4 July 1776 was based on the assumption that all human beings are equal. It also referred to certain inalienable rights, such as the right to life, liberty and the pursuit of happiness. These ideas were also reflected in the Bill of Rights which was promulgated by the state of Virginia in the same year. The provisions of the Declaration of Independence were adopted by other American states, but they also found their way into the Bill of Rights of the American Constitution. The French Déclaration des Droits de l’Homme et du Citoyen of 1789, as well as the French Constitution of 1793, reflected the emerging international theory of universal rights. Both the American and French Declarations were intended as systematic enumerations of these rights.
The classic rights of the 18th and 19th centuries related to the freedom of the individual. Even at that time, however, some people believed that citizens had a right to demand that the government endeavour to improve their living conditions. Taking into account the principle of equality as contained in the French Declaration of 1789, several constitutions drafted in Europe around 1800 contained classic rights, but also included articles which assigned responsibilities to the government in the fields of employment, welfare, public health, and education. Social rights of this kind were also expressly included in the Mexican Constitution of 1917, the Constitution of the Soviet Union of 1918 and the German Constitution of 1919.
In the 19th century, there were frequent inter-state disputes relating to the protection of the rights of minorities in Europe. These conflicts led to several humanitarian interventions and calls for international protection arrangements. One of the first such arrangements was the Treaty of Berlin of 1878, which accorded special legal status to some religious groups. It also served as a model for the Minorities System that was subsequently established within the League of Nations.
The need for international standards on human rights was first felt at the end of the 19th century when the industrial countries began to introduce labour legislation. This legislation - which raised the cost of labour - had the effect of worsening their competitive position in relation to countries that had no labour laws. Economic necessity forced the states to consult each other. It was as a result of this that the first conventions were formulated in which states committed themselves vis-à-vis other states in regard to their own citizens. The Bern Convention of 1906 prohibiting night-shift work by women can be seen as the first multilateral convention meant to safeguard social rights. Many more labour conventions were later to be drawn up by the International Labour Organisation (ILO), founded in 1919 (see II§1.D). Remarkable as it may seem, therefore, while the classic human rights had been acknowledged long before social rights, the latter were first embodied in international regulations.
The atrocities of World War II put an end to the traditional view that states have full liberty to decide the treatment of their own citizens. The signing of the Charter of the United Nations (UN) on 26 June 1945 brought human rights within the sphere of international law. In particular, all UN members agreed to take measures to protect human rights. The Charter contains a number of articles specifically referring to human rights (see II§1.A). Less than two years later, the UN Commission on Human Rights (UNCHR), established early in 1946, submitted a draft Universal Declaration of Human Rights (UDHR) to the UN General Assembly (UNGA). The Assembly adopted the Declaration in Paris on 10 December 1948. This day was later designated Human Rights Day.
During the 1950s and 1960s, more and more countries joined the UN. Upon joining they formally accepted the obligations contained in the UN Charter, and in doing so subscribed to the principles and ideals laid down in the UDHR. This commitment was made explicit in the Proclamation of Teheran (1968), which was adopted during the first World Conference on Human Rights, and repeated in the Vienna Declaration and Programme of Action, which was adopted during the second World Conference on Human Rights (1993).
Since the 1950s, the UDHR has been backed up by a large number of international conventions. The most significant of these conventions are the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR). These two Covenants together with the UDHR form the International Bill of Human Rights. At the same time, many supervisory mechanisms have been created, including those responsible for monitoring compliance with the two Covenants (see II§1.C).
Human rights have also been receiving more and more attention at the regional level. In the European, the Inter-American and the African context, standards and supervisory mechanisms have been developed that have already had a significant impact on human rights compliance in the respective continents, and promise to contribute to compliance in the future. These standards and mechanisms will be discussed in more detail throughout this book (see Part II).
B. Defining human rights
Human rights are commonly understood as being those rights which are inherent in the mere fact of being human. The concept of human rights is based on the belief that every human being is entitled to enjoy her/his rights without discrimination. Human rights differ from other rights in two respects. Firstly, they are characterised by being:
Inherent in all human beings by virtue of their humanity alone (they do not have,e.g., to be purchased or to be granted);
Inalienable (within qualified legal boundaries); and
Equally applicable to all.
Secondly, the main duties deriving from human rights fall on states and their authorities or agents, not on individuals.
One important implication of these characteristics is that human rights must themselves be protected by law (‘the rule of law’). Furthermore, any disputes about these rights should be submitted for adjudication through a competent, impartial and independent tribunal, applying procedures which ensure full equality and fairness to all the parties, and determining the question in accordance with clear, specific and pre-existing laws, known to the public and openly declared.
The idea of basic rights originated from the need to protect the individual against the (arbitrary) use of state power. Attention was therefore initially focused on those rights which oblige governments to refrain from certain actions. Human rights in this category are generally referred to as ‘fundamental freedoms’. As human rights are viewed as a precondition for leading a dignified human existence, they serve as a guide and touchstone for legislation.
The specific nature of human rights, as an essential precondition for human development, implies that they can have a bearing on relations both between the individual and the state, and between individuals themselves. The individual-state relationship is known as the ‘vertical effect’ of human rights. While the primary purpose of human rights is to establish rules for relations between the individual and the state, several of these rights can also have implications for relations among individuals. This socalled ‘horizontal effect’ implies, among other things, that a government not only has an obligation to refrain from violating human rights, but also has a duty to protect the individual from infringements by other individuals. The right to life thus means that the government must strive to protect people against homicide by their fellow human beings. Similarly, Article 17(1) and (2) of the ICCPR obliges governments to protect individuals against unlawful interference with their privacy. Another typical example is the Convention of the Elimination of All Forms of Racial Discrimination (CERD), which obliges states to prevent racial discrimination between human beings. State obligations regarding human rights may involve desisting from certain activities (e.g., torture) or acting in certain ways (e.g., organising free elections).
C. Terminology
The term ‘human rights’ is used to denote a broad spectrum of rights ranging from the right to life to the right to cultural identity. They involve all elementary preconditions for a dignified human existence. These rights can be ordered and specified in different ways. At the international level, a distinction has sometimes been made between civil and political rights, on the one hand, and economic, social and cultural rights on the other. This section clarifies this distinction. Since other classifications are also used, these will likewise be reviewed, without claiming, however, that these categorisations reflect an international consensus. It is also clear that the various categorisations overlap to a considerable extent.
Although human rights have been classified in a number of different manners it is important to note that international human rights law stresses that all human rights are universal, indivisible and interrelated (e.g., Vienna Declaration and Programme of Action (1993), para. 5). The indivisibility of human rights implies that no right is more important than any other.
1. CLASSIC AND SOCIAL RIGHTS
One classification used is the division between ‘classic’ and ‘social’ rights. ‘Classic’ rights are often seen to require the non-intervention of the state (negative obligation), and ‘social rights’ as requiring active intervention on the part of the state (positive obligations). In other words, classic rights entail an obligation for the state to refrain from certain actions, while social rights oblige it to provide certain guarantees. Lawyers often describe classic rights in terms of a duty to achieve a given result (‘obligation of result’) and social rights in terms of a duty to provide the means (‘obligations of conduct’). The evolution of international law, however, has to lead to this distinction between ‘classic’ and ‘social’ rights becoming increasingly awkward. Classic rights such as civil and political rights often require considerable investment by the state. The state does not merely have the obligation to respect these rights, but must also guarantee that people can effectively enjoy them. Hence, the right to a fair trial, for instance, requires well-trained judges, prosecutors, lawyers and police officers, as well as administrative support. Another example is the organisation of elections, which also entails high costs.
On the other hand, most ‘social’ rights contain elements that require the state to abstain from interfering with the individual’s exercise of the right. As several commentators note, the right to food includes the right for everyone to procure their own food supply without interference; the right to housing implies the right not to be a victim of forced eviction; the right to work encompasses the individual’s right to choose his/her own work and also requires the state not to hinder a person from working and to abstain from measures that would increase unemployment; the right to education implies the freedom to establish and direct educational establishments; and the right to the highest attainable standard of health implies the obligation not to interfere with the provision of health care.
In sum, the differentiation of ‘classic’ rights from ‘social’ rights does not reflect the nature of the obligations under each set of rights
2. CIVIL, POLITICAL, ECONOMIC, SOCIAL AND CULTURAL RIGHTS
Civil rights
The term ‘civil rights’ is often used with reference to the rights set out in the first eighteen articles of the UDHR, almost all of which are also set out as binding treaty norms in the ICCPR. From this group, a further set of ‘physical integrity rights’ has been identified, which concern the right to life, liberty and security of the person, and which offer protection from physical violence against the person, torture and inhuman treatment, arbitrary arrest, detention, exile, slavery and servitude, interference with one’s privacy and right of ownership, restriction of one’s freedom of movement, and the freedom of thought, conscience and religion. The difference between ‘basic rights’ (see below) and ‘physical integrity rights’ lies in the fact that the former include economic and social rights, but do not include rights such as protection of privacy and ownership.
Although not strictly an integrity right, the right to equal treatment and protection in law certainly qualifies as a civil right. Moreover, this right plays an essential role in the realisation of economic, social and cultural rights.
Another group of civil rights is referred to under the collective term ‘due process rights’. These pertain, among other things, to the right to a public hearing by an independent and impartial tribunal, the ‘presumption of innocence’, the principle (freedom from double jeopardy) and legal assistance (see, e.g., Articles 9, 10, 14 and 15 ICCPR).
Political rights
In general, political rights are those set out in Articles 19 to 21 UDHR and also codified in the ICCPR. They include freedom of expression, freedom of association and assembly, the right to take part in the government of one’s country and the right to vote and stand for election at genuine periodic elections held by secret ballot (see Articles 18, 19, 21, 22 and 25 ICCPR).
Economic and social rights
The economic and social rights are listed in Articles 22 to 26 UDHR, and further developed and set out as binding treaty norms in the ICESCR. These rights provide the conditions necessary for prosperity and wellbeing. Economic rights refer, for example, to the right to property, the right to work, which one freely chooses or accepts, the right to a fair wage, a reasonable limitation of working hours, and trade union rights. Social rights are those rights necessary for an adequate standard of living, including rights to health, shelter, food, social care, and the right to education (see Articles 6 to 14 ICESCR).
Cultural rights
The UDHR lists cultural rights in Articles 27 and 28: the right to participate freely in the cultural life of the community, the right to share in scientific advancement and the right to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which one is the author (see also Article 15 ICESCR and Article 27 ICCPR).
The alleged dichotomy between civil and political rights, and economic, social and cultural rights
Traditionally it has been argued that there are fundamental differences between economic, social and cultural rights and civil and political rights. These two categories of rights have been seen as two different concepts and their differences have been characterised as a dichotomy. According to this view, civil and political rights are considered to be expressed in very precise language, imposing merely negative obligations which do not require resources for their implementation, and which therefore can be applied immediately. On the other hand, economic, social and cultural rights are considered to be expressed in vague terms, imposing only positive obligations conditional on the existence of resources and therefore involving a progressive realisation.
As a consequence of these alleged differences, it has been argued that civil and political rights are justiciable whereas economic, social and cultural rights are not. In other words, this view holds that only violations of civil and political rights can be adjudicated by judicial or similar bodies, while economic, social and cultural rights are ‘by their nature’ non-justiciable.
Over the years, economic, social and cultural rights have been re-examined and their juridical validity and applicability have been increasingly stressed. During the last decade, we have witnessed the development of a large and growing body of case law of domestic courts concerning economic, social and cultural rights. This case law, at the national and international level, suggests a potential role for creative and sensitive decisions of judicial and quasi-judicial bodies with respect to these rights.
Many international fora have elaborated on the indivisibility and interdependency of human rights. As stated in the 1993 Vienna Declaration and Programme of Action: ‘All human rights are universal, indivisible and interdependent and interrelated. The international community must treat human rights globally in a fair and equal manner, on the same footing, and with the same emphasis.’ The European Union (EU) and its member states have also made it clear on numerous occasions that they subscribe to the view that both categories of human rights are of equal importance, in the sense that an existence worthy of human dignity is only possible if both civil and political rights and economic, social and cultural rights are enjoyed. In their Declaration of 21 July 1986, they affirmed that ‘the promotion of economic, social and cultural rights as well as of civil and political rights is of paramount importance for the full realisation of human dignity and for the attainment of the legitimate aspirations of every individual.’
The so-called Limburg Principles on the Implementation of the ICESCR also indicate that a sharp distinction between civil and political rights on the one hand and economic, social and cultural rights on the other is not accurate. These principles were drawn up in 1986 by a group of independent experts and followed in 1997 by the Maastricht Guidelines on Violations of Economic, Social and Cultural Rights. Together, these documents provide a clear explanation of the nature of the state party obligations under the ICESCR. The same can be said of the 1990 General Comment 3 of the UN Committee on Economic, Social and Cultural Rights on the nature of states parties’ obligations in relation to the ICESCR.
Fortunately, continuous declarations at the international level on the indivisibility and interdependency of all rights have finally been codified by way of the recently adopted Optional Protocol to the ICESCR. States parties to the Optional Protocol will recognise the competence of the Committee on Economic, Social and Cultural Rights to receive and consider individual and collective complaints alleging violations of economic, social and cultural rights set forth in the ICESCR. The Committee will also be empowered to request interim measures to avoid possible irreparable damage to the victims of the alleged violations and, where it receives reliable information indicating grave or systematic violations, it shall conduct an inquiry which may include a visit to the state party.
The adoption of the Optional Protocol on the 60th anniversary of the UDHR, on 10 December 2008, represents a historic advance for human rights. Firstly, economic, social and cultural rights - historically demoted to an inferior status with limited protection - are now finally on an equal footing with civil and political rights. Secondly, through an individual complaints procedure, the meaning and scope of these rights will become more precise, facilitating efforts to respect and guarantee their enjoyment. Thirdly, the existence of a potential ‘remedy’ at the international level will provide an incentive to individuals and groups to formulate some of their economic and social claims in terms of rights. Finally, the possibility of an adverse ‘finding’ of the Committee on Economic, Social and Cultural Rights will give economic, social and cultural rights salience in terms of the political concerns of governments; which these rights largely lack at present.
3. FUNDAMENTAL AND BASIC RIGHTS
Fundamental rights are taken to mean such rights as the right to life and the inviolability of the person. Within the UN, extensive standards have been developed which, particularly since the 1960s, have been laid down in numerous conventions, declarations and resolutions, and which bring already recognised rights and matters of policy which affect human development into the sphere of human rights. Concern that a broad definition of human rights may lead to the notion of ‘violation of human rights’ losing some of its significance has generated a need to distinguish a separate group within the broad category of human rights. Increasingly, the terms ‘elementary’, ‘essential’, ‘core’ and ‘fundamental’ human rights are being used.
Another approach is to distinguish a number of ‘basic rights’, which should be given absolute priority in national and international policy. These include all the rights which concern people’s primary material and non-material needs. If these are not provided, no human being can lead to a dignified existence. Basic rights include the right to life, the right to a minimum level of security, the inviolability of the person, freedom from slavery and servitude, and freedom from torture, unlawful deprivation of liberty, discrimination and other acts which impinge on human dignity. They also include freedom of thought, conscience and religion, as well as the right to suitable nutrition, clothing, shelter and medical care, and other essentials crucial to physical and mental health.
Mention should also be made of so-called ‘participation rights’; for instance, the right to participate in public life through elections (which is also a political right; see above) or to take part in cultural life. These participation rights are generally considered to belong to the category of fundamental rights, being essential preconditions for the protection of all kinds of basic human rights.
4. OTHER CLASSIFICATIONS
Freedoms
Preconditions for a dignified human existence have often been described in terms of freedoms (e.g., freedom of movement, freedom from torture and freedom from arbitrary arrest). United States President Franklin D. Roosevelt summarised these preconditions in his famous ‘Four Freedoms Speech’ to the United States Congress on 26 January 1941:
Freedom of speech and expression;
Freedom of belief (the right of every person to worship God in his own way);
Freedom from want (economic understandings which will secure to every nation a healthy peacetime life for its inhabitants); and
Freedom from fear (world-wide reduction of armaments to such a point and in such a thorough fashion that no nation would be able to commit an act of physical aggression against any neighbour).
Roosevelt implied that a dignified human existence requires not only protection from oppression and arbitrariness but also access to the primary necessities of life.
Civil liberties
The concept of ‘civil liberties’ is commonly known, particularly in the United States, where the American Civil Liberties Union (a non-governmental organisation) has been active since the 1920s. Civil liberties refer primarily to those human rights which are laid down in the United States Constitution: freedom of religion, freedom of the press, freedom of expression, freedom of association and assembly, protection against interference with one’s privacy, protection against torture, the right to a fair trial, and the rights of workers. This classification does not correspond to the distinction between civil and political rights.
Individual and collective rights
Although the fundamental purpose of human rights is the protection and development of the individual (individual rights), some of these rights are exercised by people in groups (collective rights). Freedom of association and assembly, freedom of religion and, more especially, the freedom to form or join a trade union, fall into this category. The collective element is even more evident when human rights are linked specifically to membership of a certain group, such as the right of members of ethnic and cultural minorities to preserve their own language and culture. One must make a distinction between two types of rights, which are usually called collective rights: individual rights enjoyed in association with others, and the rights of a collective.
The most notable example of a collective human right is the right to self-determination, which is regarded as being vested in peoples rather than in individuals (see Articles 1 ICCPR and ICESCR). The recognition of the right to self-determination as a human right is grounded in the fact that it is seen as a necessary precondition for the development of the individual. It is generally accepted that collective rights may not infringe on universally accepted individual rights, such as the right to life and freedom from torture.
First, second and third-generation rights
The division of human rights into three generations was first proposed by Karel Vasak at the International Institute of Human Rights in Strasbourg. His division follows the principles of Liberté, Égalité and Fraternité of the French Revolution.
First-generation rights are related to liberty and refer fundamentally to civil and political rights. The
second-generation rights are related to equality, including economic, social and cultural rights. Third generation or ‘solidarity rights’ cover group and collective rights, which include, inter alia, the right to development, the right to peace and the right to a clean environment. The only third-generation right which so far has been given an official human rights status - apart from the right to self-determination, which is of longer standing - is the right to development (see the Declaration on the Right to Development, adopted by the UNGA on 4 December 1986, and the 1993 Vienna Declaration and Programme of Action (Paragraph I, 10)). The Vienna Declaration confirms the right to development as a collective as well as an individual right, individuals being regarded as the primary subjects of development. Recently, the right to development has been given considerable attention in the activities of the High Commissioner for Human Rights. Adoption of a set of criteria for the periodic evaluation of global development partnerships from the perspective of the right to development by the Working Group on the Right to Development, in January 2006, evidence the concrete steps being taken in this area. The EU and its member states also explicitly accept the right to development as part of the human rights concept.
While the classification of rights into ‘generations’ has the virtue of incorporating communal and collective rights, thereby overcoming the individualist moral theory in which human rights are grounded, it has been criticised for not being historically accurate and for establishing a sharp distinction between all human rights. Indeed, the concept of generations of rights is at odds with the Teheran Proclamation and the Vienna Declaration and Programme of Action, which establish that all rights are indivisible, interdependent and interrelated.
D. The universality of human rights
In the last fifty years, the principle of universality has become central to the interpretation of human rights law. The recognition and protection of fundamental rights had already to some extent been codified before the Second World War, albeit primarily in national law, and especially in national constitutions. It was, however, only after the Second World War that politicians and civil society alike came to realise that national schemes for the protection of human rights did not suffice. Since then, human rights have found their way into a wide range of regional and global treaties.
The entry into force of the UN Charter on 24 October 1945 marked the formal recognition of human rights as a universal principle, and compliance with human rights was mentioned in the Preamble and in Articles 55 and 56 as a principle to be upheld by all states. In 1948, it was followed by the adoption of the UDHR, and in 1966 by the ICESCR and the ICCPR and its First Optional Protocol (see II§1.C).
The UDHR specifies over thirty rights. It regards the protection of these rights as a common standard to be ultimately achieved. Several governments and scholars maintain that a number of human rights in the UDHR have the character of jus cogens (a peremptory norm, which states are not allowed to derogate from; a rule which is considered universally valid). Its universality is underlined by the fact that in 1948 it was formulated and agreed upon not only by Western states, but also by representatives from countries such as China, the Soviet Union, Chile, and Lebanon. It was moreover adopted without any objection: no votes against and only eight abstentions.
As noted above, during the 1950s and 1960s, more and more countries became independent and joined the UN. In doing so they endorsed the principles and ideals laid down in the UDHR. This commitment was underlined in the Proclamation of Teheran of 1968. The Proclamation was adopted by 85 states, of which more than 60 countries did not belong to the Western Group. The Proclamation stated: ‘The Universal Declaration of Human Rights states a common understanding of the peoples of the world concerning the inalienable and inviolable rights of all members of the human family and constitutes an obligation for the members of the international community.’
The Vienna Declaration and Programme of Action, the results of the 1993 Second World Conference on Human Rights (which was attended by 171 states), once more endorsed and underlined the importance of the UDHR. It stated that the UDHR 'constitutes a common standard of achievement for all peoples and all nations’, using the language of the Declaration itself.
The universality of human rights has been and still is, a subject of intense debate, including in anticipation of, during and after the 1993 World Conference on Human Rights. The Vienna document itself states that the universal nature of human rights is ‘beyond question’. It also says: ‘all human rights are universal’; adding, however, that ‘the significance of national and regional particularities and various historical, cultural and religious backgrounds must be borne in mind’. This national ‘margin of appreciation’, as it is called, does not, however, according to the Vienna document, relieve states of their duty to promote and protect all human rights, ‘regardless of their political, economic and cultural systems’.
Also relevant when considering the universality of human rights is the increasing number of ratifications of international human rights conventions. In March 2010, the ICESCR had been ratified by 160 states and the ICCPR by 165 states. Several other UN conventions, as well as conventions Definitions and Classifications 39 Umbrotið FYRIR GUÐRÚNU - Nota_Layout 1 8.4.2010 11:19 Page 39 of the International Labour Organisation (ILO), have also been ratified by many states; indeed in some cases by nearly all states. Most strikingly, the Convention on the Rights of the Child (CRC), adopted in 1989, has been ratified by 193 states (March 2010)
E. Human rights and interference in domestic affairs
In earlier times, whenever human rights violations were openly condemned by third states, the authorities concerned countered with references to ‘unacceptable interference in internal affairs’. In more recent years, this argument has lost ground when human rights are at stake. The Second World War constituted a turning point in the way the international community regards its responsibility for the protection of and respect for human rights. The long-standing principle of state sovereignty vis-à-vis one’s nationals has in the course of the years been eroded. The UN Charter explicitly proclaimed human rights to be a matter of legitimate, international concern: ‘[...] the United Nations shall promote [...] universal respect for, and observance of, human rights and fundamental freedoms for all without distinction as to race, sex, language or religion’ (Article 55); and ‘All Members pledge themselves to take joint and separate action in co-operation with the Organisation for the achievement of the purposes set forth in Article 55’ (Article 56).
These commitments were reaffirmed in the Sixth and Seventh principles of the Helsinki Final Act of the Conference on Security and Co-operation in Europe of 1975 (see II§5), and during the Vienna World Conference on Human Rights of 1993. The traditional (broad) interpretation of the principle of national sovereignty has thus been limited in two crucial, and related, respects. Firstly, how a state treats its own subjects is nowadays considered a legitimate concern of the international community. Secondly, there are now superior international standards, established by common consent, which may be used for appraising domestic laws, and the actual conduct of sovereign states within their own territories, and in the exercise of their internal jurisdiction.
Thus, whether a state has accepted international human rights norms, laid down in conventions, is relevant but not the only decisive factor: human rights, as formulated in the UDHR, have become a matter of international concern and do not fall within the exclusive jurisdiction of states. As stated in the 1993 Vienna Declaration and Programme of Action: ‘[T]he promotion and protection of all human rights is a legitimate concern of the international community’. In other words: there is a right to interfere in case of human rights violations. Interference can be defined, in this context, as any form of international involvement in the affairs of other states, excluding involvement in which forms of coercion are used (‘intervention’). The distinction between interference and intervention is relevant: the fact that the principle of noninterference does not apply to human rights questions does not mean that states may react to human rights violations by making use of military means. This could amount to a violation of the prohibition of use of force, as laid down in the UN Charter (Article 2(4)). Some human rights experts claim that the United Nations Security Council should decide that a certain human rights situation poses a threat to international peace and security and on the basis of that decision authorise military action for humanitarian purposes, undertaken under the auspices of the UN.
F. Types of state duties imposed by all human rights treaties:
The tripartite typology
The early 1980s gave rise to a useful definition of the obligations imposed by human rights treaties, which blurred the sharp dichotomy between economic, social and cultural rights, and civil and political rights.
Specifically, in 1980, Henry Shue proposed that for every basic right (civil, political, economic, social and cultural) there are three types of correlative obligations: ‘to void depriving’, ‘to protect from deprivation’ and ‘to aid the deprived.’
Since Shue’s proposal was published, the ‘tripartite typology’ has evolved and scholars have developed typologies containing more than three levels. While there is no consensus on the precise meaning of the different levels, the ‘tripartite typology’ presented by Shue is known today in more concise terms as the obligations ‘to respect’, ‘to protect’, and ‘to fulfil’.
Obligations to respect: In general, this level of obligation requires the state to refrain from any measure that may deprive individuals of the enjoyment of their rights or of the ability to satisfy those rights by their own efforts.
Obligations to protect: This level of obligation requires the state to prevent violations of human rights by third parties. The obligation to protect is normally taken to be a central function of states, which have to prevent irreparable harm from being inflicted upon members of society. This requires states: a) to prevent violations of rights by any individual or non-state actor; b) to avoid and eliminate incentives to violate rights by third parties, and c) to provide access to legal remedies when violations have occurred in order to prevent further deprivations.
Obligations to fulfil: This level of obligation requires the state to take measures to ensure, for persons within its jurisdiction, opportunities to obtain satisfaction of the basic needs as recognised in human rights instruments, which cannot be secured by personal efforts. Although this is the key state obligation in relation to economic, social and cultural rights, the duty to fulfil also arises in respect to civil and political rights. It is clear that enforcing, for instance, the prohibition of torture (which requires, for example, police training and preventive measures), the right to a fair trial (which requires investments in courts and judges), the right of free and fair elections or the right to legal assistance, entails considerable cost.
The above analysis demonstrates that there is little difference in the nature of state obligations in regard to different human rights. The three levels of obligation encompass both civil and political rights and economic, social and cultural rights, blurring the perceived distinction between them.
ICELANDIC HUMAN RIGHTS CENTR.
