Human Rights Developments After The Second World War
Dr. Bahram Mustaqimi Maryam Za’ir
Introduction
In the course of history, man has had an ongoing struggle for an expanding body of fundamental human rights for as many people as possible. Humanists and international lawyers have long endeavored to protect these rights. They have discussed the position of the individual in international law in particular. Although it is universally acknowledged as a fact that the individual is the basic unit to whom any legal system is directed, discussions of this nature have often resulted in denying man of any position whatsoever.
According to the classical international law, the individual as an object had no rights and duties. However, the relationship between the individual and the society has undergone changes over the recent years. Since the Western view on human rights has prevailed in contemporary international society for a long time and can be traced back to medieval Europe, it seems appropriate to consider it as a historic point of departure for investigating that relationship.
The Reformation and Renaissance movements provided scientific, religious and philosophical outlets for freedom and self-expression. In medieval Europe, the ordinary individual was left beyond the jurisdiction of international law and was treated as a mere object.
With the emergence of despotic regimes towards the close of the middle ages, the struggle for human rights commenced. This struggle led to the great political revolutions of the late seventeenth and eighteenth centuries.
Those facets of human rights that had, then, been encroached upon were formulated into declarations and bills of rights
and written subsequently in national constitutions.
During the eighteenth and nineteenth centuries, the commercial activities of certain European States were expanded, and the need for protecting groups of nationals was deeply felt by these states. They satisfied the exigeny by including specific clauses in their treaties with some nonEuropean states. For example, the United Kingdom entered into several treaties with Morocco whereby the latter agreed, inter alia to treat its entire people alike no matter what religion they had.
On the other hand, the participants in the Congress of Vienna (1815) showed deep concern for human rights at the international stage. They dealt with religious freedom as well as civil and political rights and heard petitions by individuals and groups for international protection of those rights. Likewise, major powers agreed in principle to abolish slavery and the slave trade. At Brussels Conference of 1890, a comprehensive treaty for abolishing the slave trade was finally concluded.
Despite the occasional actions, such as the above-mentioned examples, by the individuals, and not by the nationals of protesting states, the issue of human rights appeared on international political agenda during the past three centuries, at least not before World War II broke out. It was because human rights, which as a rule implied the way a state treated its citizens in its own territory, were viewed as an entirely domestic political affair. And the states were obligated by the principle of non-intervention, as a subsidiary duty of the right of sovereignty, not to interfere in the affairs that were basically within the domestic jurisdiction of sovereign states.
However, a state generally tended to the granting of civilized treatment to its citizens. This practice eventually led to the development of what is generally described as treatment in accordance with the minimum standard of international law. Since the beginning of the nineteenth century, a few general treaties have been concluded with the effect to stamp out the gross violations of human rights such as the slave trade. Although it may appear that anti-slavery and humanitarian movements have sought only sets of freedoms and rights of limited groups, they actually have operated upon philosophical foundations closely connected with the entire human kind.
Sympathy for religious minorities and humanitarian ideals helped further expand the international protection of the rights of citizens, by way of treaty and on occasions, by direct intervention. Furthermore, the nationality principle received recognition in the international protection of minorities.
During the Second World War, the Allied Powers found in the principle of national self-determination a powerful weapon in their way against the axis powers. In response to the German Peace Proposals of 1916 the Allied Powers affirmed inter alia that“no peace is possible as long as the reparation of violated rights and liabilities, the acknowledgement of the principle of nationalities and of free existence of small states shall not be assured.”
Though the League of Nations concerned itself with minority rights, labor rights and rights of the individuals in mandated territories, human rights did not receive specific mention in the language of the convention. This was not surprising in view of the then prevailing notion that these questions were not, primarily, of international concern.
Indeed, a problem often becomes an object of international concern and action, only after a dramatic event crystallizes awareness. This explains why more immediate reasons for the genesis of international concern for human rights were born out of the events concerned with the origin and conduct of the Second World War. The systematic carnage of millions of innocent civilians by Germany during the war resulted in the general conviction that the effective international protection of fundamental human rights was a fundamental condition for gaining international peace and progress. This faith was given repeated expression in several official statements and declarations of the Allied.
Franklin D. Roosevelt, the president of the United States, in an address to Congress, in January of 1941, set forth the doctrine of the Four Freedoms. In August of the same year, Roosevelt and the Prime Minister of the United Kingdom, Winston Churchill, formulated the Atlantic Charter in the form of a joint declaration which laid down a number of principles and policies to be put into effect when peace was achieved so that the people of the world could live free from fear and want.
These principles included those that were to be incorporated four years later in the Charter of the United Nations. The Preamble of the Charter, which was set forth at San Francisco Conference 1945, reads as follows:
We the people of the United Nations determined
“To save succeeding generations from the scourge of war which twice in our lifetime has brought untold sorrow to mankind and to reaffirm faith in fundamental human rights in the dignity and worth of the human person in the equal rights of men and women and of nations large and small and…”
“To establish conditions under which justice and respect for the obligations arising from treaties and other sources of international law can be maintained and…”
“To promote social progress and better standards of life in larger freedom”
To put human beings in their capacity as individuals, citizens and members of a race governed by principles of equality, justice and solidarity at the center of interest and action of the world order is the novel element which gives the United Nations Charter its historical value and present validity. This new emphasis is clearly discernible in the light of the conviction that there is a close connection between the respect for human rights and the preservation of international peace and security.
However, the challenge to achieve universal respect for human rights are still a matter of great importance. For example, slave-like practices have remained a grave and persistent problem even in the closing years of the twentieth century despite the fact that it is condemned. Another example of this nature is the refugee problem. Although the immediate cause of most refugees movements is armed stmggle or serious domestic disorder the violation of human rights usually finds root in the struggle itself.
In the present article we shall deal with the development of the concept of human rights to determine the process of this developments, the differentiation of each stage and the impact of the development on the formation of human rights documents. At the end, we shall discuss human rights under the influence of a new trend.
The Formation of Human Rights
So far, human rights have undergone three phases. Each phase has given birth to a new generation of human rights. The first or traditional generation is based on individual rights. Social rights are the main tenets of the second generation. Rights towards other countries and international society form the cornerstone of the third generation of human rights.
First Generation Of Human Rights
The first generation was affected by the views of Western countries. According to such views, civil and political rights are apparently of primary importance although it is not really possible to rank human rights in proportion to the priority of one over another. They help give shape to the foundation on which the economic and social welfare of individuals and communities should be built.
Those who advocate the preeminence of civil and political rights hold that the lack of these rights may permit authoritarian governments to remain in power, which ultimately will create an obstacle to economic, social and cultural development. They state that the ability to combat repression, corruption, environmental pollution and destruction over land or working conditions depends on the liberty to exercise civil and political freedoms.
Therefore, civil and political rights gained primary importance and selfdetermination was considered only as a general principle and not a full right of people. Western view had its reflection manifested on the work of the United Nations.
This will be dealt with later in this article.
In fact, the stance of Western countries centered on an arena in which socialist countries was at a disadvantage. Human rights, therefore, were used as an ideological weapon against eastern European States.
Second Generation Of Human Rights
Two important political events helped shape the second generation. First, the strengthening of the socialist group of countries; second, and as a consequence of the first one, the rise of the cold war, the ideological and geopolitical struggle between the United States and the Soviet Union. At this time human rights became just one more arena for the superpower struggle. For example, in the late 1950s the Commission on Human Rights, which was under the supervision of the United States extensively discussed the right to freedom of information (a right that the Soviet Union systematically violated) but completely ignored all economic and social rights. Conversely, the Soviet Union tried to focus attention on racial discrimination in the United States and unemployment throughout the capitalist West.
It may be generally stated that the second generation was the result of the encounter and the occasional convergence of Western and socialist schools of thought. The latter was supported by the Third World. The socialist countries tended to emphasize the importance of basic rights and freedoms for gaining international peace and security. The context of the international human rights obligations was defined solely by the state in the light of the socio-economic advancement of that state. It was the particular expression of an international human provision.
The socialist group tended to lay stress upon the rights relevant to economic and social matters, self-determination and equality. Hence, it minimized the importance of the traditional civil and political rights.
The input of the socialist and Third World states helped broaden the general abstract concept of human rights, emerging from the liberal values of the Universal Declaration. We shall consider its impact later in this article.
Third Generation Of Human Rights
The third generation was marked by the prevalence of developing countries. Their strategies for socio-political and economic development were based on the concepts of economic self-sufficiency and political independence. Thereupon, the developing countries elaborated their own philosophy and strategy of human rights on the basis of self-determination and development. Their numerical superiority and vociferousness made it possible for them to manage on the preponderance of their own aspirations without necessarily requiring the support of the socialist countries.
The general approach of the Third World States has been a combination of the aforesaid concepts. The Third World’s view is characterized by the importance attached to the equality and sovereignty of states as well as the recognition of the importance of social and economic rights.
Accordingly, the traditional civil and political rights of these countries, in fact, include a wide range of nations with different interests and needs and at different stages of development. Decolonization has left a deep influence on them. In addition, economic problems have played a major role in drawing their attention to the general development.
Developing countries felt that the world community had ignored their urgent economic, social and cultural needs and the right to development. They believed that the emphasis on civil and political rights served to impose others’ values on their societies. They wished that the international community should demonstrate as much commitment to economic, social and cultural rights - and in particular to the right to development of vulnerable groups - as it had to civil and political rights.
The attitude of developing countries, in general, towards civil and political rights was shaped by three factors:
Firstly, recognizing the importance of this category of right could undermine or weaken the authority of the government in such countries.
Secondly, developing countries need a strong central government if their economies are ever to grow. The restriction of certain rights and liberties seems to these countries to be justified by the need to give precedence to economic and social rights.
Thirdly, the social structure of many African and Asian countries is that of a community with a leader exercising undisputed power.
Their doctrine is based on the following points:
1. The priority of economic, social and cultural rights;
2. the alteration of the present international economic system as it is to a large extent responsible for the undeveloped conditions of the poorer nations and hence for the lack of fundamental rights in these countries;
3. only by changing the domestic-international context for the violations of civil and political rights these violations can be brought to an end.
The opinions of the developing countries have come to prevail in the United Nations within a short period of time. The turning point was the year 1974 when a series of important documents concerning the New International Economic Order was approved. These documents rendered the amelioration of the international economic and social order a precondition for greater respect for human rights in developing countries. Briefly, they sought to make clear, once and for all, that in considering important and subtle matters such as human rights, one cannot take an abstract and meta historical view but must look into the general factual and economic context of human rights.
Nevertheless, there is the risk that too little attention would be paid to certain classes of grave violations of human rights on the part of some developing countries. In fact, many of these violations are fruits of unjustified and arbitrary forms of authoritarian rule. They are not dictated by conditions of economic underdevelopment but are the aftermaths of abuses perpetrated by individuals or groups.
On the other hand, too much emphasis on economic context of human rights does not cast enough light on a phenomenon which is common in developing countries and which is often the cause of grave infringements of human rights. Specifically, it sometimes happens that the ruling minority has the backing of large-scale foreign interests and pursues ends, which are not for the good of the whole population. This minority often uses the support of foreign nations or powerful foreign economic interests to oppress the population. The authoritarian method of these governments is to some extent the outcome of underdevelopment but cannot be eliminated by economic means alone.
Briefly, the main result of the new strategy of human rights has been to stimulate the formulation of new rights. These are called collective or group rights and include the right to development and the right of peoples to cultural, economic, political and social self-determination.
New Trend
Although the emphasis on individual rights is not the sole prerogative of liberalism, the liberal tradition has laid claim to these rights in a special way. It has frequently done so at the cost of socio-economic rights as well as cultural, religious and group rights. However, personal well-being cannot be reduced to freedom of choice. In fact, first generation rights may not be fully realized in isolation from second generation and third generation rights.
A kind of truce has settled in which all states recognize different sets of values. It is now accepted that there is no inherent conflict, no hierarchy, and no priority among categories of rights or between any particular rights in the other. There is no excuse for neglecting each category of rights or for sacrificing rights in one category to rights in the other. Moreover, governments have come to recognize the need to continue to chip away at resistance rooted in government values in order to realize more fully and more effectively human values both economic and political.
Thereupon, the end of Cold War brought about a new phase in the evolution of the universal protection of human rights. In fact, an essential body of opinions has emerged on the basis of interdependence of all three groups of states, which is now shared by them. For the purpose of our discussion all groups of states agree on the following essential points:
1. The dignity of human beings is a basic value, which every state should try to protect;
2. it is compulsory to bring about the realization of fundamental rights of groups and peoples; and
3. even though some states may for economic, social organizational or political reasons find it hard to grant full respect of human rights, no state must commit grave, repeated and large-scale violations of whole categories of human rights.
Accordingly, promising paths for action by the United Nations have opened from the late 1980s,
which has led to the emergence of a new fourth generation of human rights.
Each one of these generations has contributed in its own way to the international documents, especially those of the United Nations, on human rights.
Impact on International Documents of Human Rights
Since its inception, the United Nations has been striving to make real the pledges made by the international community to the individual human being. That the Organization has helped formulate a series of declarations and conventions is of great significance. The International Bill of Human Rights marks one of the august actions taken by the United Nations with the intention of promoting human rights and fundamental freedoms.
A first act of the Organization was to fulfill the recommendation of the Preparatory Commission of the United Nations at San Francisco that the Economic and Social Council (ECOSOC) should immediately establish a commission on Human Rights and direct it to formulate the International Bill of Rights. The General Assembly approved this recommendation on 12 February 1945 and later ECOSOC established the Commission on Human Rights. Members of the Commission immediately decided whether the Bill should take the form of a proclamation or a treaty.
At its second session on December 1947, the Commission on Human Rights decided to designate a Covenant on Human Rights, and in its third session on June 1948 agreed as a compromise that the International Bill of Human Rights should consist of a declaration, a convention and measures of implementation. The report of the session presented by the Commission to the Economic and Social Council contained not only a Draft of International Declaration on Human Rights but also a Draft of the Covenant on Human Rights.
However, while the Draft of the Declaration contained all rights civil, political, economic, social and cultural - under the influence of Western view, specially the United states, which questioned the wisdom of including both types of rights in the same instrument, the Draft of the Covenant only contained articles on civil rights.
Universal Declaration Of Human Rights
Although the promotion of human rights was referred to in the Charter of the United Nations (1945), the real commitment to this ideal was only expressed with the adoption and proclamation of the Universal Declaration of Human Rights. The General Assembly adopted the Universal Declaration, which recognizes the inherent dignity and, equal and inalienable rights of all members of the human family, on 10 December, 1948.
A number of general ethical notions were enshrined in the Declaration. It embodies the idea of human dignity, of being free and equal in rights and opportunities and also ensured the material requirements for a dignified existence; the principle of tolerance, involving respect for the beliefs and views of others and allowing opportunities for all to play a part in determining the conditions under which their society lives; and the concept of solidarity which covers rights in civil, political, economic, social fields.
On the whole, the view expressed on human rights is Western. Much importance is allotted to civil and political rights than to economic, social and cultural rights and of the rights of peoples no mention is made at all. Nor does the Declaration say anything about economic inequalities between states.
The Universal Declaration of Human Rights is proclaimed as a common standard of achievement for all peoples and nations. It recognizes that the realization of this objective depends on both national and international action. While expressing a universal morality of respect for human dignity, it also indicates that the realization of human rights must likewise start from a consideration of irrelevant principles and standards.
The Universal Declaration is to be accorded a great step in stating goals and principles. Although a declaration lacks the binding force of a treaty, the Universal Declaration has secured the approval of a great majority of states. It provided the basis for several international treaties on human rights inspired constitutions of many states and influenced the formulation of subsequent resolutions.
The Universal Declaration of Human Rights affirms that the exercise of a person’s rights and freedoms may be subject to some limitations which must be determined by law, only for the purpose of securing due recognition of the rights of others and of meeting the just requirements of morality, public order and the general welfare in a democratic society.
By proclaiming the Universal Declaration, the first part of the Internal Bill of Human Rights, as provided by the Commission on Human Right in June 1948, took shape. Consequently, the second phase i.e. to design a covenant on Human Rights began.
Human Rights After The Universal Declaration
Inside the United Nations
The drafters of the Universal Declaration of Human Rights intended to follow it with a treaty or covenant that would give human rights binding force in international law. Although the drafting was largely completed by 1953, the covenant was tabled for more than a decade mainly because of the cold war and ideological rivalry over the status of economic and social rights. However, increase in the membership of the United Nations by the Third World countries led the organizations to give priority to the issues of human rights.
Notwithstanding, the influence of Western view is clearly discernible. They questioned the status of economic, social and cultural rights and claimed that these rights were not really human rights since they belonged to a different logical category. Economic, social and cultural rights such as right to food, healthcare, social insurance and education are less important than civil and political rights such as due process, and equal protection of the law.
Finally, Western view caused civil, political, economic and cultural rights to be separated by the United Nations subsequent action into two distinct treaties: the International Covenant on Civil, and Political Rights and the International Covenant on Economic, Social and Cultural Rights.
On the other hand, the socialist camp and Third World Countries exerted their influence on the 1966 Covenants. Upon the basic agreement of the above-mentioned countries and Western countries, on the need to translate the general principles of the Universal Declaration into legally binding instruments, the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights were adopted in 1966 and took effect in 1976. They enable us to affirm that civil, political, economic, social and cultural rights are equally important and worthy of attention.
The preamble to each Covenant states that everyone is entitled to enjoy civil and political rights as well as economic, social and cultural rights. Article 1 of each Covenant says that the right to self-determination is universal. Both Covenants add that by virtue of that right states determine their political status and freely pursue their economic, social and cultural development.
These similarities reflect endeavors of socialist and third world countries, which favored the inclusion of both categories of rights in a single instrument. They propounded several arguments.
1. Without economic, social and cultural rights, civil and political rights are meaningless or ineffective;
2. the unity of all human rights and the integral personality of human beings should be preserved:
3. a covenant which does not embrace economic, social and cultural rights would merely reaffirm civil and political rights which exist in all constitutions and it is hard to consider as a progress; and
4. the separation of the rights into two distinct covenants can cause an indefinite postponement of the attainment of economic, social and cultural rights.
While the influence of socialist and third world countries caused the above similarities between the two covenants, the impact of Western view brought differences for those documents. Advocators of separation put forward the following arguments:
1. States have the duty to ensure the fulfillment of civil and political rights as inherent rights of the human person; while the economic, social and cultural rights are objectives to be achieved instead of rights to be protected:
2. the implementation of civil and political rights needs inmmediate legislative and administrative measures to ensure that states do not intervene in the lives of individuals, but the implementation of economic, social and cultural rights is a progressive process dependent on socio-economic conditions and requires the positive action of the state; and
3. a covenant including only civil and political rights would be acceptable universally whereas the same was not true of economic, social and cultural rights.
Thereupon, under the Covenant on Civil and Political Rights, Contracting Parties undertook to respect and to ensure to all individuals within their territory and subject to their jurisdiction the rights recognized in the Covenant. The Covenant required them to take the necessary steps in accordance with their constitutional process and with the provisions of the Covenant, to adopt such legislative and other measures as may be necessary to give effect to the rights recognized in that instrument. Moreover, it designated a special organ of implementation (the Human Rights Committee) and required the States Parties to submit reports to the Committee on the measures they have adopted which give effect to the rights recognized and on the progress made in the enjoyment of these rights.
Whereas the Covenant on Economic, Social and Cultural Rights stipulated that the realization of the rights must be progressively achieved and required a Contracting Party to act to the best of its potentials with a view to gradually effect the full realization of the rights recognized in the Covenant, it also refused to mention any measures of implementation. All it did was to prescribe an obligation to submit periodic reports to the Economic and Social Council on the measures adopted and the progress made in the cause of realizing these rights.
However, the adoption of the Covenants completed the process of giving shape to the second part of the International Bill of Rights. Now it was the duty of Member States of the United Nations to take steps towards providing measures of implementation.
In the wake of the adoption of the two Covenants on Human Rights, the United Nations undertook standard sets of activities in human rights. The Tehran Conference provided the opportunity to set goals for the following years. This Conference was held from
April to 13 May 1968. It adopted inter alia a proclamation. The Proclamation of Tehran made the United Nations grant independence to Colonial Countries and Peoples on the grounds that it had created new standards and obligations to which states should conform (par. 3). This was an evidence for the advancement of the Third World stand towards human rights.
As the first step towards the exercise of human rights, Tehran Proclamation stipulated that the laws of every country should grant each individual, without limitation due to race, language, religion or political belief, freedom of expression, of information, of conscience and religion as well as the right to participate in the political, economic, cultural and social life of his country (Par. 5.)
The Proclamation emphasized that since human rights and fundamental freedoms are indivisible, the full realization of civil and political rights without the enjoyment of economic, social and cultural rights is impossible. The achievement of lasting progress in the exercise of human rights is dependent upon sound and effective national and international policies of economic and social development (Par. 13).
It was an important advancement for the Third World countries to propound the idea of establishing a New International Economic Order and to promote the concept of the right to development.
Outside the United Nations
Besides the United States documents, regional agreements were supplemented, and expanded upon the above-mentioned instruments. Among them are:
1. The European Convention on Human Rights and Fundamental Freedoms was signed in 1950 and took effect in 1953 together with its eight protocols:
2. the American Convention on Human Rights was signed in San Jose, Costa Rica in 1969 and took effect in 1978;
3. the Helsinki Accords was adopted in 1975; and
4. the African Charter on Human Rights and Peoples’ Rights was adopted in 1981.
The same situation as to the instrument adopted in the United Nations has existed regarding international human rights instruments adopted outside the UN system.
The European Convention on Human Rights covers a wide variety of primarily civil and political rights. Therefore, it is formulated under the influence of Western view. The rights in American Convention on Human Rights are fundamentally those protected by the European Convention and those economic rights contained in the Charter of the Organization of American states (1948) as revised by the Protocol of Buenos Aires (1967).
It can be easily understood why Helsinki Accords of 1975 laid emphasis on political and civil rights. These accords were based on an overall compromise in which Western States recognized post-war border and the status quo in Eastern and Central Europe in exchange for human rights commitment by the Communist countries.
The African Charter on Human and People’s Rights contains, in addition to civil and political rights, the economic rights such as the rights to selfdetermination and development. This charter reflects more than the other documents third world views. The best expressions of these views are rights to development and self-determination.
Formation Of The Third World Human Rights
Right to Development
Development was once defined as almost entirely in terms of economic growth. But the development strategies oriented merely towards economic considerations have often failed to achieve social justice. In the meantime, human rights may have been violated or denied. In the broadest sense, development may be viewed as the process by which all human rights are to be realized. In other words, the realization of human rights is the goal of development.
The right to development is the right of individuals, groups and peoples to participate in, contribute to and enjoy sustainable economic, social, cultural and political development in which all human rights and fundamental freedoms can be fully realized. This includes the right to effective participation in all aspects of development and at all stages of the decision making process: the right to equal opportunity and access to resources: the right to fair distribution of the benefits of development; the right to respect for civil, political, economic, social and cultural rights and the right to an international environment in which all these rights can be fully realized.
In fact, the right to development can be considered as the consequence of the new outlook in the field of human rights. It was forcefully asserted that individuals, peoples and the developing states have the right to development. This right was a means of reformulating the whole problem of the international law of development in terms of a fundamental right.
Many developing countries felt that the world community had ignored their urgent economic, social and cultural needs and the right to development. They felt that the main obstacle to the realization of the right to development lay at the international macro-economic level as reflected in the widening gap between the North and the South, between the rich and the poor.
Some developing countries believed that an emphasis on civil and political rights served to impose others’ values on their societies. For the future, many developing countries wanted the international community to demonstrate as much commitment to economic, social and cultural rights and in particular to the right to development of vulnerable groups - as it had to civil and political rights.
In fact, such countries, constituting a wide range of nations with different interests and needs and at different stages of development have been deeply influenced by decolonization. In addition, economic problems have played an important role in focusing their attention on the general developmental issues. Accordingly, the traditional civil and political rights tend to lose their superiority over the third world states.
Efforts to fashion a right to development can be traced back to the procss of founding the United Nations. In 1941, the Allied Powers of the Second World War proclaimed freedom from want to be one of their post war objectives.
Th preamble to the Charter of the United Nations speaks both of fundamental human rights and social progress and better standards of life in greater freedom. Article 5 of the charter stipulates that the United Nations shall promote the condition of economic and social progress and development. The right to development gradually emerged upon these principles.
The Declaration on Granting Independence to Colonial Countries and Peoples, resolution 1414 (XV) of 1960 stipulates that all peoples can by virtue of the right to self-determination, freely determine their political status and freely pursue their economic, social and cultural development.
According to the Declaration on Social Progress and Development adopted by the General Assembly in 1969, social progress and development shall aim at the continuous raising of the material and spiritual standards of living of all members of society with respect for and in compliance with human rights and fundamental freedoms.
The Declaration on Principles of International Law Concerning Friendly Relations and Cooperation among states in accordance with the Charter of the United Nations resolution 2625 (XXV) on 24 October 1970 stipulated that all peoples have the right to freely pursue their economic, social and cultural development.
In 1974, the special session of the General Assembly issued three resolutions which respectively embodied the Declaration on the Establishment of a New Economic Order (A/Res. 3201), the Program of Action on the Establishment of a New Economic Order (A/Res), and the Charter of Economic Rights and Duties of States (A/Res. 3281). It was stated in these declarations that the existing international economic system is unjust. Thereupon, developing countries called for a change in the system. They aimed to create economic conditions, which would improve their standard of principles of social justice and allow them to compete in terms of trade with other states on an equal basis.
The developing countries argued that until a new international economic order was achieved the economic and social conditions of underdevelopment would constitute an emergency situation making the implementation of at least some human rights difficult if not impossible. It is the impact of the application of principles of social justice and equity on international level which is pertinent to human rights.
Since the developed nations took a negative stand towards the New International Economic Order, the move to raise the moral imperatives for the cause of development understandably entered the human rights framework. Thus the right to development was initially raised in the General Assembly through the resolution 32/132 (1977) which stated that the right to development is a human right and equality of opportunity is as much a prerogative of nations and individuals.
On the other hand, in its resolution 32/130 (1977) the General Assembly stated, inter alia, that the achievement of lasting progress in the implementation of human rights is dependent upon sound effective national and international policies and social development. The Declaration on the Right to Development reinforced this position.
In 1986, the General Assembly adopted the Declaration on the Right to Development (A/Res. 41/128) which established an inalienable human right by virtue of which each person and all peoples are entitled to participate in, contribute to and enjoy economic, social cultural and political development in which all human rights and fundamental freedoms can he fully realized.
The Declaration stated among other things that the human person is the central subject of development and should be the participant and beneficiary of the right to development. It also emphasized the efforts at the international level to promote and protect human rights should be accompanied by efforts to establish a new international economic order.
In his 1992 report on the Work of the United Nations, Secretary General Boutros-Ghali wrote that sustainable development is not possible without respect for human rights and that human rights are meaningless in an environment of poverty and deprivation.
According to the statement of the then UN Secretary General, at the opening the World Conference on Human rights on 14 June 1993, one of the goals of the Conference was to reflect on the following the question: what are the links between the goals pursued by the United Nations and human rights including the link between development and enjoyment of economic, social, cultural, civil and political rights? He emphasized that the conference should reaffirm the link between development and the enjoyment of all human rights.
The San Jose Declaration (Costa Rica, meeting in January 1993) stated that the Latin America and Caribbean community regards peace, democracy, development and social welfare as essential for the full realization of human rights.
These documents show the process of the acceptance of development as a right for people. However, certain requirements have to be fulfilled before development is realised. Besides internal conditions, there should be international favorable environment for development. Self-determination is a means to this end.
Right to Self-determination
The principle of self-determination has developed from a philosophical to a political concept in international relations and now has given shape to a fiundamental principle of positive international law. It has developed as an aspect of human rights. The right of self-determination can be traced back to the First World War. After the war, a politico-legal postulate had been advanced challenging certain facets of the main fabric of the family of nations, namely the principle of self-determination of peoples.
It became part of international law with its inclusion in the Charter of the United Nations. According to the Charter of the United Nations one aim of the Organization is to develop friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples. Furthermore, article 55 of the Charter stipulates that with a view to the creation of conditions of stability and well being which are necessary for peaceful and friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples, the United Nations shall promote higher standards of living, full employment and condition of economic and social progress and development. Accordingly, the Charter sees a link between self-determination and economic concepts like economic progress and development.
The General Assembly directed by the resolution 545, the Commission on Human Rights to draw up draft covenants to ensure international respect for self-determination of people. Resolution 637 (VII) of 1952 provided that the member states of the United Nations should uphold the principle of selfdetermination of all peoples and nations.
However, the recognition of the principle came in the context of Decolonization in which the United Nations played a key role. The post war period witnessed former colonies joining the ranks of sovereign states through pressure both the General Assembly of the United Nations and the dependent nations themselves claiming their right to self-government. The pressure led to the agreement that the principle of self-determination had generated a rule of international law by which the political future of a colonial or similar non-dependent territory should be determined in accordance with the wishes of its inhabitants. Accordingly, the Declaration on the Granting Independence to Colonial Countries and Peoples, resolution 1514 (XV) of 1960 provided that all peoples had the rights to selfdetermination.
The Covenant on the Civil and Political Rights and the Covenant on Economic, Social and Cultural Rights both state that the right to selfdetermination is a universal right which all peoples should enjoy. According to the Common Article l all people have the right of self-determination and accordingly the right to freely determine their political status and to freely pursue the economic, social and cultural development.
The Declaration on Principles of International Law concerning Friendly Relations and Cooperation among States in Accordance with the Charter of the United Nations, adopted as resolution 2625 (XXV) on 24 October 1970 also emphasizes the right to self-determination.
The African Charter on Human Rights and People’s Rights 1986 emphasizes the right to self-determination.
The World Conference on Human Rights (1993) declared that 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.
According to some writers, self-determination constitutes only a general principle, not a full right of peoples. But the others believe in full legality of it. Some are of the opinion that self-determination refers to collectives rather than individuals, not yet subjects of international law but potential recipients of direct rights under the law. Such collectives wish to secede from or have autonomy within their state, create their own state or join another state. The idea is frightening to existing states.
Some others believe that the idea of self-determination entails not only a right of a country to attain independence, rid itself of foreign domination and remain free from foreign interference but also certain human rights of the citizens of its territory. They argue that the Declaration on the Granting Independence to Colonial Countries and Peoples accelerated the acceptance of self-determination as a legal right.
Besides the Covenant on the Civil and Political Rights and the Covenant on Economic, Social and Cultural Rights gave more validity to the right of self-determination as a rule of law and a wider front, not limited to colonial situation as a matter of treaty law. Its basic objective is to guarantee that all the people have a government of their own choice that respond to their political, economic and cultural needs. It aims at the elimination of external or internal domination and the creation of the proper atmosphere in which individuals have the possibility of enjoying fundamental human rights. It also seeks to impose certain standards of administration in all states regardless of race, creed color and sex.
Yet, support for self-determination can also be a political tool in the hands of groups agitating for self-determination in other states to embarrass or even dismember their states.
As we have already mentioned a new trend from the late 1980s, based on an essential body of opinions has opened promising avenues for action by the United Nations. Vienna Declaration and Program of Action adopted at the World Conference on Human Rights on 25 June 1993, is an example reflects this body of opinion.
For example, it recognizes and affirms that all human rights derive from dignity and worth inherent in human person and reaffirms the solemn commitment of all states to fulfill their obligations to promote universal respect for, and observance and protection of all human rights and fundamental freedoms for all.
It shows that the dignity of human beings is a basic value which every stote should try to protect.
Moreover, according to the Vienna declaration effective international measures to guarantee and monitor the implementation of human rights standards should he taken with respect to people under foreign occupation and effective legal protection against the violation of their human rights should he provided in accordance with human rights norms and international law, and great importance must he given to the promotion and protection of the human rights of persons belonging to groups which have been rendered vulnerable.
It accepts the necessity of aiming at the achievement of fundamental rights of groups and peoples.
The Declaration also provides that while the significance of national and regional particularities and various historical, cultural and religious backgrounds must be borne in mind, it is the duty of the states, regardless of their political, economic and cultural systems, to promote and protect all human rights and fundamental freedoms and while development facilitates the enjoyment of all human rights, the lack of development may not be invoked to justify the violation of internationally recognized rights.
It reflects the opinion that even though some states may for economic, social, organizational or political reasons find it hard to grant full respect to human rights, no state must commit grave, repeated and large scale violations of the whole categories of human rights.
However, the points cited above, altogether, reflect the present situation of human rights under the influence of the new trend and refer to the responsibility for human rights, indivisibility and universality of human rights and the necessity of respect for democracy.
Present Situation of Human Rights
Responsibility Of Human Rights
It has been remarked for example in article 2 of the International Covenant on Economic, Social and Cultural Rights that the state should be the best guarantor of human rights. According to that article, a Contracting Party undertake to take steps to the maximum of its available resources with a view to achieving progressively the full realization of the rights recognized in that covenant.
Most writers have assumed that a state has to care for its own nationals to enjoy the fundamental human rights. This obligation relates to all aspects of human rights. However, as Boutros-Ghali, the United Nations Secretary General, has recalled when states prove unworthy of this task, when they violate the fundamental principles laid down in the Charter of the United Nations, the issue of interational action must be raised. In these circumstances, the international community as a whole must take over from the states that fails to fulfill their obligations.
Indivisibility Of Human Rights
Which rights are preeminent? Is there a conflict between civil and political rights on the one hand and economic, social and cultural rights on the other? Do human rights begin with economic and social concerns such as shelter, nutrition , health, education, and employment or are political freedoms the key to fulfilling these and other human needs? Do the countries have to reach certain levels of development before the civil and political rights of their citizens can be recognized? Are governments obliged to respect political rights if countries are mired in poverty or chronic underdevelopment?
Debate over these questions has been heard within the United Nations system since the Organization’s earliest efforts to define and protect human rights.
These questions are focused on the problem of divisibility and indivisibility of human rights. In fact, since man is an integrated whole, human rights are indivisible and must be regarded altogether. Indivisibility or in the other words, interdependence of the human rights is evident. Efforts to promote one category of rights must take full account of the human right areas, which are interchangeably interrelated.
It is visible, for example, in the reciprocal relationship between respect for human rights and peace and stability, relation between the enjoyment of trade union rights and respect for civil liberties, participation of indigenous populations in decisions concerning their status and conditions and civil liberties which make possible the free shaping and expression of opinions and genuine involvement in processes leading to decisions.
More generally, the denial of civil and political rights tends to have adverse effects on the enjoyment of economic and social rights; neglect of social protection and well-being often goes hand in hand with the inability of poorer and more vulnerable population groups or people as a whole, to have a voice in influencing decisions.
Interdependence is evident not only in measures and policies within nations but also in their effects beyond international boundaries. It has become ever more evident that no country can pursue economic and social policies in isolation from developments in the world stage. This fact finds reflection, for example, in current anxieties concerning the global effects of the economic policies pursued by major industrialized nations and the implications for world stability of third world indebtedness. The policies pursued on such questions will have a direct effect on the ability of individual countries to maintain and further the enjoyment of human rights. International collaboration and solidarity are thus a vital factor in efforts aimed at the realization of human rights.
The indivisibility and interdependence of the two sets of human rights is a fundamental tenet of the United Nations approach to human rights. In 1948, the Universal Declaration of Human Rights put the challenge for United Nations Member States to enhance and sustain their commitment to the realization of all human rights. While a general, abstract concept of human rights, born of liberal values, prevailed initially as we can see from the text of the 1948 Universal Declaration, the input of the socialist states and the states of the third world helped broaden this initial vision.
The General Assembly has confirmed, on several occasions, its view that the full enjoyment of one category of rights depends on the realization of the others. According to the Declaration of the Right to Development (1986) all human rights and fundamental freedoms are indivisible and interrelated. The Assembly stated in 1991 that all human rights and fundamental freedom are indivisible and interrelated and promotion and protection of one category of rights should never exempt or excuse states from the promotion and protection of another.
The foregoing makes it clear that all human rights are universal, indivisible, interdependent and interrelated. Efforts to promote one category of rights must take full account of the progress in implementing others. As mentioned before, human rights are not only indivisible but also universal.
Universality Of Human Rights
Human rights should be viewed as a synthesis resulting from a long historical process. As such they should be in accordance with history. Yet, the fact that human rights keep pace with the course of history should not change what constitutes their very essence, namely the universality. The World Conference on Human Rights has reaffirmed the importance of ensuring the universality, objectivity and non-selectivity of the consideration of human rights issues. While some form of ideological split and economic disparities may continue to be the hallmark of our international society, they cannot interfere with the universality of human rights.
However, it should be noticed that the universality of human rights fits uncomfortably in a political order structured around sovereign states. The future of international human rights activity can be seen as a struggle over balancing the competing claims of sovereignty and international human rights. While the universal nature of these rights is beyond question, this concept of universality is not something that is decreed nor is it the expression of the ideological dimension of one group of states over the rest of the world. While human rights are common to all members of the international community, and each member of that community recognizes himself in them, each cultural epoch has its own special way of implementing them.
This conditioning reveals that some form of limitation can be regarded for human rights.
Limitations On Human Rights
While human rights are common to all members of the international community and each member of that community recognizes himself in them, each cultural epoch has its own special way for carrying them out. The significance of national and regional particularities and various historical, cultural and religious backgrounds must be borne in mind in the adoption of the way.
Thereupon, in giving shape to the rights and measures for implementing them, values of different cultures should be regarded. It is not an innovation. Having proper regard for different legal systems in the process of progressive development of international law has been under consideration by the member states of the United Nations from the earliest date. It can be seen, for example, in the status of the International Law Commission, which has been approved by the General Assembly through the adoption of the resolution 174 (II) on 21 November 1947. Article 8 of the Status provides inter alia, that in the Commission as a whole representation of the main forms of civilization and of the principle legal systems of the world should be assured.
In addition, the Universal Declaration of Human Rights affirms that the exercise of person’s rights and freedoms may be subject to certain limitations, which must be determined by law, only for the purpose of securing due recognition of the rights of others and of meeting the just requirements of morality, public order and the general welfare in a democratic society.
In the Bangkok meeting of March-April 1993 Governments, while welcoming the increased attention being paid to human rights by the international community, stressed the need to consider human rights in national and regional contexts and emphasized the principles of respect for national sovereignty and non-interference in internal affairs.
The foregoing reveals that human rights cannot be promoted without respect for democracy.
Democracy And Human Rights
In 1991, the General assembly stated that all human rights and fundamental freedoms are indivisible and interrelated and promotion and protection of one category of rights should never exempt or excuse states from the promotion and protection of another.
Boutros-Ghali recalled in his message for Human Rights Day (10 December 1992) that democracy is more than elections. The mere introduction of political pluralism is not enough to turn a poor society into a prosperous one. The final document of the World Conference on Human Rights inked in Vienna reaffirmed the recognition of the interdependence between democracy, development and human rights.
Generally, democracy, development and respect for human rights and fundamental freedoms are interdependent and mutually reinforcing. Since the human person is the central subject of the right to development, the enjoyment of all civil, political, economic, social and cultural rights is both the necessary condition and the aim of the right to development. Thus, States must not only take concrete steps to improve economic, social and cultural conditions and to facilitate the efforts of individuals and groups for that objective, but must do so in a manner that is democratic in its formulation and results.
Democracy is based on the freely expressed will of the people to determine their own religious, political, economic, social and cultural systems and their full participation in all aspects of their lives. Democracy is a political framework in which human rights can best be safeguarded and is a political system which best allows for the free exercise of individual rights. It is not possible to separate the promotion of human rights from the establishment of democratic systems within the national and international communities. Democracy at all levels and in all spheres is essential to true development. Structural inequalities in international relations as within individual countries, are obstacles to the achievement of genuine democracy and a barrier to development and to promote internationally acceptable norms of human rights.
Human rights should therefore be covered by effective mechanisms and procedures to guarantee and protect them and to provide sanctions. Only democracy, within and among states, can truly guarantee human rights. It is through democracy that individual and collective rights, the rights of peoples and the rights of persons are reconciled. It is through democracy that the rights of states and the rights of community of states are reconciled. This is why we must act constructively to build an effective link between democracy, development, in all its aspects, and human rights.
Vital importance of democracy for the promotion of human rights does not mean that some states should limit others voluntarily or to expect them to borrow political systems that are alien to them. Democracy is no one’s private property. It can and ought to be assimilated by all cultures. Democracy is not a model to copy from certain states but a goal to be achieved by all peoples. It is the political expression of the common heritage. It is something to be shared by all.Vital importance of democracy for the promotion of human rights does not mean that some states should limit others voluntarily or to expect them to borrow political systems that are alien to them. Democracy is no one’s private property. It can and ought to be assimilated by all cultures. Democracy is not a model to copy from certain states but a goal to be achieved by all peoples. It is the political expression of the common heritage. It is something to be shared by all.
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Author: A Group of Scholars
