Solidarity
rights:universality and diversities
Zoltan Vig
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 Genocide[15]
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]
Modern human rights development
makes clear the movement in favour of collective rights for minorities.
However, in most international and domestic human rights instruments these
rights are declared alongside with rights of individual members of minority
groups without any distinction. Examples are the Council of Europe’s 1995
Framework Convention for the Protection of National Minorities[23]
; the 1993 Vienna Declaration;[24]
the 1978 UNESCO Declaration on Race
and Racial Prejudice;[25]
the 1992 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 the rights of indigenous peoples,[27]
as historically the indigenous population was the target of
discrimination.[28]
Compared with minority rights, rights of indigenous people are more
often to encounter in domestic legislation and more readily recognized as group
rights[29]
than minority rights. For example, the 1994 United Nations Draft
Declaration on the Rights of Indigenous People declares to be “collective
rights” many of the rights included in the Declaration.[30]
An exception in this tendency is the Vienna Declaration referring to
“the rights of indigenous people”, not peoples.[31]
A group of so called collective
cultural rights implies an individual’s right in community with others to take
part in cultural life. This right is recognized in the 1966 UNESCO Declaration
of the Principles of International Cultural Co-operation[32]
and separately protected in ICESC[33]
15 (1)(a). The right to profess and
practice a religion in community with others is declared in ICCPR[34]
18 (1). Surprisingly, the right to use a language is provided by
neither of them.[35]
The right to the common heritage of mankind is included in the UNESCO
Draft Declaration on the Safeguarding of Future Generations of 1997.[36]
This right is supposed to be more comprehensive than other cultural rights.
It provides every individual, in community with others, with the right to share
“Earth and space resources, scientific, technical, and other information and
progress, and cultural traditions, sites, and monuments.”
The collective right to peace and
security or “the right to life in peace” is declared as a right of “every
nation and every human being” in the Declaration on the Preparation of
Societies for Life in Peace, adopted by the UN General Assembly in 1978[37]
. The Declaration on the Right of Peoples to Peace, adopted by the UN
General Assembly in 1984[38]
(§ 1) “solemnly proclaims that the peoples of our planet have a sacred
right to peace.”
The right to use of wealth and
resources or the right to sovereignty over natural resources might be described
as an economic counterpart of the right to self-determination. There is an
opinion that the permanent sovereignty of peoples and nations over their
natural resources is a component of the “principle of equal rights and
self-determination of peoples” declared in the UN charter (article 1).[39]
This right is formulated in article
1 (2) of the ICCPR and the ICESCR as follows:
“All peoples may, for their own
ends, freely dispose of their natural wealth and resources without prejudice to
any obligations arising out of international economic co-operation, based upon
the principle of mutual benefit, and international law. In no case may a people
be deprived of its own means of subsistence”.
Moreover, the article 47 of the
ICCPR and the article 25 of the ICESCR state:
“Nothing in the present Covenant
shall be interpreted as impairing the inherent right of all peoples to enjoy
and utilize fully and freely their natural wealth and resources”.
In the most completed form this
right is declared by the article 21 of ACHPR.[40]
All the above mentioned documents
limit the right to sovereignty over natural resources by “obligations arising
out of international economic cooperation” and by international law.
One of the most significant
collective rights - the right to development, according to some commentators,
is “difficult to define as a human right”, because it rather “tends to suggest
the presence of certain conditions conducive for human rights ”.[41]
The origin of this right is tracked back by some authors to the 1944
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, have the right to pursue both their
material well-being and their spiritual freedom in conditions of freedom and
dignity, of economic security and equal opportunity”.
The right to development as a human
right was launched by Keba M’Baye, that time Chief Justice of Senegal, in his
inaugural lecture on that subject to the 1972 study session of the
International Institute of Human Rights in Strasbourg. In 1986 the General Assembly
adopted the United Nations key document in this field - the Declaration on the
Right to Development setting up the right to development as “an unalienable
human right”.[43]
The Vienna 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 of fundamental human rights”.[44]
However, the most commentators
agree, that this right doesn’t really have any enforceable means of
implementation except for in the regional ACHPR system.[45]
The right has been discussed broadly in recent years.[46]
Partly, because the economic circumstances in many countries are such,
that their inhabitants’ rights are violated steadily, and partly also because
some programs for the economic development of these countries may themselves
result in deprivation of human rights.[47]
There is no generally agreed
definition of the nature or scope of the right to development in the context of
human rights. Many authors agree with the collective nature of this right[48]
, however, the right to development might be considered as being both of
collective and individual nature.[49]
The UN Declaration on the Right to
Development defines the right to development as right to participate in,
contribute to, and enjoy economic, social, cultural and political development,
in which all human rights and fundamental freedoms can be realized;[50]
So, the right to development is supposed to have not only economical
and social dimensions, but cultural and political as well.[51]
As individual human right, the right
to development, represents a kind of combination of all individual human rights
or the basis of all other rights. The individual right to development is a
right to human flourishing in all spheres of life[52]
in other words the individual right
of every person to benefit from a developmental policy.”[53]
An important element of the right to development as an individual human
right is politic and economic “active participation”.[54]
Article 3 (3) of the Declaration on the Right to Development states,
that national development policies must be based on “active, free and
meaningful participation in development and in the fair distribution of the
benefits resulting therefrom.” The article 8 (2) requires, that “States should
encourage popular participation in all spheres as an important factor in
development and in the full realization of all human rights.” Pursuing these
aims states are obliged to ensure “equality of opportunity for all in their
access to basic resources, education, health services, food, housing,
employment and the fair distribution of income”.[55]
It should be noted that the
participatory element is essential in other collective rights as well.
As a collective right the right to
development implies full realization of the right of peoples to
self-determination, which includes, subject to the relevant provisions of both
International Covenants on Human Rights, the exercise of their inalienable
right to full sovereignty over all their natural wealth and resources. (Article
1 (2) of the United Nations Declaration on the Right to Development)). The
double role of the state in relation to collective rights can be illustrated
the best on the example of this right. Acting as responsible for the promotion
and protection of the right to development on national level states have the
duty to formulate appropriate national development policies that aim at the
constant improvement of the well-being of the entire population and of all
individuals (article 2 (3) of the United Nations Declaration on the Right to
Development)). Acting as representatives of nations on the international level
states are obliged “to take steps, individually and collectively, to formulate
international development policies with a view to facilitating the full
realization of the right to development” (article 4 (1)).
A collective human right with regard
to the environment is not generally accepted. It is included in the Rio
Declaration concluding the 1992 United Nations Conference on Environment and
Development[56]
by reference to the right to development. The Vienna Declaration
adopted the same position. § I/11 of the Declaration states “The right to
development should be fulfilled so as to meet equitably the developmental and
environmental needs of present and future generations.”[57]
In many documents this right was mentioned not as a collective right
but among the rights of individuals.[58]
The collective environmental right
is provided by the 1981 African Charter on Human and Peoples’ Rights in the
following formulation: “All peoples shall have the right to a general
satisfactory environment favorable to their development”(article 24).[59]
The right to humanitarian assistance
is described in the guiding principles for the strengthening of the
coordination of humanitarian emergency assistance of the United Nations as
having cardinal importance for the victims of natural disasters and other
emergencies[60]
. However, there is no mechanism to enforce this right at the international
level (except for the ACHPR).
We could see that there are many
collective rights declared in international and regional human rights
instruments, and recognized by the international community. However, some
commentators suggest that the status of collective rights as international
human rights standards still remains ambiguous.[61]
On the reason that a “people”
cannot consist of anything more than the individuals who make it up, collective
human rights are viewed as a non-existing concept and considered as rights of
all individual human beings.[62]
Many authors consider these rights
to be too vague to be justifiable, and nothing more then slogans promoting
goals of the United Nations, and sometimes even used for propaganda purposes in
some countries.[63]
Besides, the skeptical attitude towards collective rights is largely
based on supposed impossibility of enforcement of collective rights.[64]
The current trend in the international human rights law and theory
shows weakness of these views[65]
Moreover, many authors and
legislators agree that the traditional system of individual human rights
combined with non-discrimination provisions is not sufficient for the
protection of the rights of individuals as group members. [66]
Nonetheless, there is widespread
opinion that indiscriminate recognition of numerous demands or values as human
rights would weaken the idea of human rights in general. [67]
However, the inclusion of collective rights (the right to political
determination and the right to sovereignty over natural resources) in the two
fundamental universal human rights instruments over thirty years ago has not
ruin individual human rights and it is doubtful to do so.[68]
In the same way many authors are afraid of possible underestimation of
individual rights in favor of collective rights. This idea is supported by the
fact that the worst violations of individuals’ human rights occurred in the
name of some “inspiring abstraction”, such as “the one true faith”, “the
nation”, “the State”, etc. The term “people” is an abstraction as well. As a
result, grave abuses of individual human rights might occur under
“legitimating” label of collective interest, if any of the individual rights
and freedoms protected by modern international human rights law ever will be
regarded as in some sense inferior to peoples’ rights. [69]
On the other hand, there is a view that “peoples... are above all
people”[70]
and that consequently such order has its advantages as well. According
to the latter approach the main function of collective rights is still their
benefit to the individual. Groups have no ultimate or necessary value, but they
are a way in which individuals achieve various ends, which are necessary or
desirable (in particular the good of community and the fulfillment of certain
human capacities and attributes which are best fulfilled in community.)[71]
There is an opinion, that recognition of collective rights as human
rights is meaningful as far as specific collective goods are essential for
human self-realization. Such a conception of collective rights is called the
“collective” conception, as opposed to the “corporate” one. The latter
conception implies that rights are held by a single corporate entity and used
for pursuing a common aim, unconnectedly to any individual composing it;
whereas in the “collective” conception the rights are united, but the interests
of the group members are different.[72]
At all events, collective human
rights are considered as an important component of the protection of individual
human rights, as, for example, wars and local armed conflicts are clearly the
most significant causes of violations of individual human rights. The
collective character of the first rights 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 violations were ethic groups as such. Therefore
as the injustice is uphold by hostile attitude towards groups, the solution
requires the promotion of the dignity of groups.[74]
A clearer definition of collective
rights would probably help reconcile conflicting views. The meaning of
“peoples” notion is uncertain itself. There are many groups within a State – is
every one of them entitled to be 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 artificial or planned] and permanent factors, as rule beyond the
will of the members of the group.”[75]
In addition, the territorial basis
of such unifying has to be taken into consideration in almost all situations.
The next suggestion of the
collective rights’ critic is the uncertainty of the opposing party in emerging
obligation. It is not difficult to identify the entities that have the duty to
respect and secure the rights of individuals (the State, its government, or
other public authorities). This obligation 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 to dispose of its natural wealth and resources for
example. In Karel Vasek’s view the solidarity rights are rights with
undetermined subjects and opposing to all centers of power.[76]
That power can be spread very thinly over other States, public and
private ,national and international bodies, and many individuals. The right to
peace, the right to a healthy environment and similar rights can be considered
as rights even not of a group of people, but of the whole human race entailing
obligations of all the above-mentioned subjects and the human race itself. It
is almost impossible to demonstrate that any one, or more of them has breached
the obligation, since collective rights might be viewed as being “higher” than
the level of states’ responsibility, which argument supports the opinion about
legal non-enforceability of collective rights.
The possible solution could be to
regard a state as responsible before it’s population for performing in it’s
competence the duties imposed by collective rights’ obligations, and as a
representative of it’s population in protecting these rights on the
international level,[77]
bearing in mind that these are primarily governments, who have to take
the prime responsibility for promoting and protecting human rights.[78]
Some commentators consider
collective rights as a product of both the rise and the decline of the
nation-state in the last half of the 20th century.[79]
In this case collective rights are
understood as reflecting the emergence of Third World nationalism and its
"revolution of rising expectations" (i.e., its demand for a global
redistribution of power, wealth, and other important values or capabilities)
and suggesting the impotence or inefficiency of the nation-state in certain
critical respects. [80]
Considering the role of states with
regard to collective rights some writers “distrust” collective rights since
states might interpret these rights as state’s rights widening the area for
individual rights abuses. However, states violate the rights of collectives in
the same way as they violate the rights of individuals. They also promote the
rights of collectives as they promote the rights of individuals. Therefore,
collective rights have to be opposable to the states in the same manner as
individual rights. Considering the nature of collective rights, some of them
have to, and are able to be opposed against foreign states and against the
international community as well. The latter characteristic demonstrates an
unarguable advantage of collective rights before individual rights. [81]
.
The status of collective rights
differs not only in scientist’s views, but also in accordance with a kind of
geographical criterion. Collective rights are traditionally given more
attention in the non-Western societies, where the communal dimension is more
important to individual well being than in the Western societies. The interests
of the group are automatically among person’s interests.[82]
On this reason international human rights frequently undergo critic in
the non-Western countries, since the conflict between the individual and the
community is the base of the human rights law originated in the Western
countries. The promotion of collective human rights expresses the efforts of
non-Western governments to assert their values on international level. As an
example of this tendency may serve the 1976 Universal Declaration of the Rights
of Peoples adopted in Algiers. Upon the non-Western way of thinking are based
the so-called collective “Third Worldist” and “globalist” approaches[83]
to collective human rights similarly perceiving these rights as a
proper response to the globalization and the unconditional control of the
Western countries over the international politics.
In this way some commentators
challenge the universality of collective rights on the ground, that some groups
of peoples do not need them at all. It can be true with regard to minority and
indigenous peoples’ rights, but this argument is void concerning other
collective rights, which are attributed to all people. For example, peoples
from rich countries enjoy a right to development on an equal base with people
from poor ones, but the protection of the first’s right does not require any
action. In the same way providing for special rights to children or women
doesn’t violate their universality. Eva Brems argues that human rights can be
stipulated on behalf of certain categories of individuals or groups as long as
these same rights are not denied to others.[84]
It seems that the arguments against
collective rights are often based on the fact that many people are less
sympathetic to the rights of others as a group, especially, when that group is
perceived as very different.[85]
The international collective human
rights’ concept is still in process of development, 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 human rights … are a safer and probably
more effective course to pursue human rights”[86]
will probably change. Collective
human rights are recognized and protected in many of international human rights
documents. There is a large academic interest to the topic as well, especially
in connection with the globalization issues. And, although there is a role for
international human rights instruments they in themselves will not rid the
world of human rights violations.[87]
Список литературы
Для
подготовки данной работы были использованы материалы с сайта http://www.monax.ru
[1]
Eva Brems, Human Rights:
Universality and Diversity 67 (2001).
[2]
Paul Sieghart, The
international law of human rights 367 (1995); Jose Ayala-Lasso, The
Universality of Human Rights, in Human
Rights and Humanitarian Law. The Quest for Universality 93 (Daniel
Warner ed., 1997).
[3]
Eva Brems, Human Rights:
Universality and Diversity 67 (2001).
[4]
Eva
Brems, Human Rights: Universality and Diversity 67
(2001).
[5]
Burns H. Weston, Human Rights the
Content of Human Rights: Three Generations of Rights (visited Aug. 14, 2002) .
[6]
Jose Ayala-Lasso, The Universality of Human Rights, in Human
Rights and Humanitarian Law. The Quest for Universality 91 (Daniel Warner ed.,
1997).
[7]
Paul Sieghart, The
International Law of Human Rights 368 (1995).
[8]
James Crawford, The Rights of Peoples: ‘Peoples’ or
‘Governments’?, in The Rights of
Peoples 57 (James Crawford ed.,1988).
[9]
Ian Brownlie, The Rights of Peoples in Modern International Law,
in The Rights of Peoples 124
(James Crawford ed., 1988).
[10]
Burns H. Weston, Human Rights the Content of
Human Rights: Three Generations of Rights (visited
Aug. 14, 2002) .
[11]
Charter of the United Nations (visited July 20, 2002) .
[12]
International Covenant on Civil and Political Rights (visited July 20, 2002)
; International Covenant on
Economic, Social and Cultural Rights (visited July 20, 2002) .
[13]
African Charter on Human and
Peoples' Rights (visited July 21, 2002) .
[14]
Paul Reeves, The Human Rights of
Indigenous People: Tiptoeing Towards Self-determination, in Universal Human Rights? 68-69 (Robert
G. Patman ed., 2000).
[15]
Convention on the Prevention and Punishment of the Crime of Genocide (visited
July 20, 2002) .
[16]
International Convention on the Suppression and Punishment of the Crime of
Apartheid (visited July 20, 2002) .
[17]
International Convention on the Elimination of All Forms of Racial
Discrimination (visited July 20, 2002) .
[18]
Eva Brems, Human Rights: Universality and
Diversity 479 (2001).
[19]
Nathan Lerner, Group Rights and Discrimination
in International Law 10 (1991).
[20]
Nathan Lerner, Group Rights and Discrimination
in International Law 11-14 (1991).
[21]
For example, Articles 86 and 93 of
the Treaty of Versailles of 1919 (visited July 20, 2002) ; the Polish-German Upper Silesia Treaty of 1922 not only guaranteed
certain rights – including life, liberty, and the free exercise of religion –
for all inhabitants, and equal treatment before the law and the same civil and
political rights for all nationals, but also the same treatment and security in
law and in fact to all linguistic, or ethnic minority groups of nationals; the
right of minority groups to establish schools and religious institutions and to
use their own language for publications, at public meetings, and before the
courts. (visited July 24, 2002) .
[22]
International Covenant on Civil and Political Rights (visited July
20, 2002) .
[23]
Framework Convention for the Protection of National Minorities (visited July
24, 2002) .
[24]
Vienna Declaration and Program of Action (visited July 24, 2002) .
[25]
Declaration on Race and Racial Prejudice (vidited July 21, 2002) .
[26]
Declaration on the Rights of Persons Belonging to National or Ethnic, Religious
and Linguistic Minorities (visited July 21, 2002) .
[27]
Eva Brems, Human Rights: Universality and
Diversity 480 (2001).
[28]
Rebecca M. M. Wallace, International Human
Rights Text and Materials 104 (2001).
[29]
E.g.: ILO Convention Nr. 107, on the Protection and Integration of Indigenous
and Other Tribal and Semi-Tribal Populations in Independent Countries (June 26,
1957), declaring the collective rights of indigenous people, such as the right
to decide their own priorities for the process of development and to
participate in the formulation, implementation and evaluation in national and
regional development plans affecting them (article 7 (1)), the right to retain
their own customs and traditions (article 8 (2)), the rights of ownership and
possession over the lands which they traditionally occupy (article 14 (1)), and
the right to the natural resources pertaining to their lands (article 15 (1)).
(visited July 24, 2002) .
[30]
E.g., the collective right to live in freedom, peace and security as distinct
people and to full guarantees against genocide or any other act of violence,
including the removal of indigenous children from their families and
communities under any pretext (article 6); the collective and individual right
not to be subjected to ethnocide and cultural genocide (article 7); the
collective and individual right to maintain and develop their distinct
identities and characteristics (article 8); the right to determine their own
citizenship in accordance with their custom and traditions (article 32) etc.
(Draft Declaration on the Rights of Indigenous People (visited July 24, 2002)
.
[31]
Vienna Declaration, § II, 28-29. (visited July 21, 2002) .
[32]
Declaration of the Principles of International Cultural Co-operation (visited
July 21, 2002) .
[33]
International Covenant on Economic, Social, and Cultural Rights (visited July
28, 2002) .
[34]
International Covenant on Civil and Political Rights (visited July 24, 2002)
.
[35]
However, the European Court of Human Rights has held that the right to
education would be meaningless if it did not imply the right to be educated in
their national language. Judgement of the European Court of Human Rights in Six
Groups of Belgian Citizens v. Belgium (visited Aug. 5, 2002)
.
[36]
Draft Unesco Declaration on Cultural Diversity (visited Aug. 5, 2002)
.
[37]
Implementation of the Declaration
on the Preparation of Societies for Life in Peace (visited Aug. 5, 2002)
.
[38]
Declaration on the Right of Peoples to Peace (visited Aug. 5, 2002)
.
[39]
Paul Sieghart, The International Law of Human
Rights 368 (1995).
[40]
African Charter on Human and
Peoples' Rights (visited Aug. 5, 2002)
.
[41]
Rebecca M. M. Wallace, International Human
Rights Text and Materials 1 (2001).
[42]
Declaration of Philadelphia (visited Aug. 5, 2002)
.
[43]
Declaration on the Right to Development
(visited Aug. 8, 2002) .
[44]
Vienna Declaration (visited Aug. 7, 2002)
.
[45]
Gudmundur Alfredson, The right to Development: perspectives from human
rights law, in Human Rights in
Domestic Law and Development Assistance Policies of the Nordic Countries 84-85
(Lars Adam Rehof et al. ed., 1989).
[46]
See, for example, the 1992 Rio Declaration on Environment and Development
(visited Aug. 18, 2002)
; Program
of Action of 1994 Cairo Conference (visted Aug. 18, 2002)
;
Declaration and the Programme of Action of the World Summit for Social
Development (Copenhagen, 1995) (visited Aug. 14, 2002)
; the 1995 Platform of
Action of the Beijing World Conference on Women (visited Aug. 14, 2002)
.
[47]
Paul Sieghart, The International Law of Human
Rights, 401 (1995).
[48]
Philip Kunig, Human Rights Approach to the Right to Development: Merits and
Shortcomings, in The Right to Development
in International Law 84 (Erik M. G. Denters et al. ed., 1992).
[49]
Eva Brems, Human Rights: Universality and
Diversity 71 (2001).
[50]
Declaration on the Right to Development (visited Aug. 5, 2002)
.
[51]
An international conference,
convened by the International Commission of Jurists in 1981, formulated the
right to development as follows: “Development should… be seen as a global
concept including, with equal emphasis, civil and political rights and
economic, social and cultural rights… True development requires recognition
that the different human rights are inseparable from each other, and
development is inseparable from human rights and the Rule of Law. Likewise,
justice and equity at the international level are inseparable from justice and
equity at the national level… Development should be understood as a process
designed progressively to create conditions in which every person can enjoy,
exercise and utilize under the Rule of Law all his human rights, whether
economic, social, cultural, civil or political. Every person has the right to
participate an, and benefit from, development in the sense of a progressive
improvement in the standards and quality of life. The concept of the right to
development… serves to express the right of all people all over the world, and
of every citizen, to enjoy all human rights. The primary obligation to promote
development, in such a way as to satisfy this right, rests upon each State for
its own territory and for the persons under its jurisdiction.” (Reported in Development,
Human Rights and the Rule of Law; also UN General Assambly Resolution
32/130 of 16 December 1977).
[52]
Eva Brems, Human Rights: Universality and
Diversity 72 (2001).
[53]
Burns
H. Weston. Human Rights the content of human rights: Three generations of
right (visited July 21, 2002)
[54]
United Nations Declaration on the Right to Development, Article 2 (1) (visited
Aug. 8, 2002) .
[55]
It also says that: “Effective measures should be undertaken to
ensure that women have an active role in the development process. Appropriate
economic and social reforms should be carried out with a view to eradicating
all social injustices ”.
[56]
The Rio Declaration on Environment and Development (1992) (visited Aug. 5,
2002) .
[57]
Vienna Declaration (visited Aug. 5, 2002)
.
[58]
For example, Commision on Human Rights Resolution 1999/23, “Adverse effects of
the illicit movement and dumping of toxic and dangerous products and wastes on
the enjoyment of human rights”, § 4. (visited Aug. 5, 2002)
.
[59]
African Charter on Human and Peoples' Rights (visited Aug. 5, 2002)
.
[60]
See, for example, General Assembly RES/45/100 of 14 December 1990 (visited Aug.
5, 2002) .
[61]
Burns H. Weston Human Rights the Content of Human Rights: Three Generations
of Rights (visited July 24, 2002) .
[62]
Jack Donnely, Human rights and collective rights, in Human Rights in a Pluralist World. Individuals
and Collectives 43 (Jan Berting et al. ed., 1990).
[63]
Richard B. Lillich & Hurst Hannum,
International Human Rights Problems of Law, Policy and Practice 201
(1995).
[64]
Richard B. Lillich & Hurst Hannum,
International Human Rights Problems of Law, Policy and Practice 204
(1995).
[65]
. “Unqualified resistance to
the idea of collective human rights is not very productive for the pragmatic
reason that such rights already exist.” (Eva
Brems, Human Rights: Universality and Diversity 73 (2001).)
[66]
J. Donnely, Third Generation Rights, in Peoples and Minorities in International Law 91 (Catherine
Brolmann et al. ed., 1993.)
[67]
Richard B. Lillich & Hurst Hannum,
International Human Rights Problems of Law, Policy and Practice 201
(1995).
[68]
Eva Brems, Human Rights:
Universality and Diversity 73 (2001).
[69]
Paul Sieghart, The International Law of Human
Rights 368 (1995).
[70]
Eugene Kamenka, Human Rights, Peoples’Rights, in The Rights of Peoples 133 (James Crawford ed., 1988).
[71]
James Crawford, The Rights of Peoples
167 (1992).
[72]
Peter Jones, Human Rights, Group Rights, and Peoples’ Rights, Human Rights Quarterly 2. 86-88 (1999).
[73]
William F. Felice, The Case for Collective Human Rights: the Reality of
Group Suffering, Ethics and
International Affairs 48 (1996).
[74]
Michael Freeman, Are there Collective Human
Rights? 32-33 (1995).
[75]
J. Donnely, Third Generation Rights, in Peoples and Minorities in International Law 92 (Catherine
Brolmann et al. ed., 1993).
[76]
Eva
Brems, Human Rights: Universality and Diversity 74
(2001).
[77]
Eva Brems, Human Rights: Universality and
Diversity 485 (2001).
[78]
Jose Ayala-Lasso, The Universality of Human Rights, in Human Rights and Humanitarian Law. The Quest
for Universality 94 (Daniel Warner ed., 1997).
[79]
Burns H. Weston Human Rights the content of human rights: Three generations
of rights (visited July 24, 2002)
.
[80]
Burns H. Weston Human Rights the content of human rights: Three generations
of rights (visited July 24, 2002) .
[81]
Jack Donnely, Human rights, individual rights and collective rights, in Human Rights in a Pluralist World. Individuals
and Collectives 72-73 (Jan Berting et al. ed., 1990).
[82]
Eva Brems, Human Rights: Universality and
Diversity 67 (2001).
[83]
Eva Brems, Human Rights: Universality and
Diversity 70 (2001).
[84]
Eva Brems, Human Rights: Universality and
Diversity 71 (2001).
[85]
J. Donnely, Third Generation Rights, in Peoples and Minorities in International Law 149 (Catherine
Brolmann et al. ed., 1993).
[86]
J. Donnely, Third Generation Rights, in Peoples and Minorities in International Law 149 (Catherine
Brolmann et al. ed., 1993).
[87]
Rebecca Wallace, International Human Rights:
Text and Materials 104 (2001).