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Human Rights and their Limits


  • Page extent: 262 pages
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 (ISBN-13: 9780521125239)

Human Rights and Their Limits
Cambridge University Press
9780521110273 - Human Rights and Their Limits - By Wiktor Osiatyński

1    A Short History of Human Rights

The idea of human rights is of moral rather than legal nature. Although a growing number of human rights have legal protection, human rights primarily reflect people's aspirations. They proclaim widely accepted standards for freedom, for limitations on state power, and for services that can be expected from a society as represented by the state in accordance to an underlying set of moral values.1 Although some of these standards may be enforced by law, new ones appear and are claimed as moral postulates. Human rights are, therefore, universal moral rights of fundamental character.2 They belong to every person in his or her relations with the state and with any other authority in a position to use coercive power against the individual. Although some moral rights can be acquired (inherited, earned, bought, received, or exchanged for something else), human rights are inherent and belong to the human being as such. It is believed that every person comes to existence endowed with these rights.

Let us accept this working description of the nature of human rights for now and leave the more detailed discussion for the rest of this book. The concept of human rights, as described here, consists of at least six fundamental ideas:

1. The power of a ruler (a monarch or the state) is not unlimited.

2. Subjects have a sphere of autonomy that no power can invade and certain rights and freedoms that must to be respected by a ruler.3

3. There exist procedural mechanisms to limit the arbitrariness of a ruler and protect the rights and freedoms of the ruled (points 1 and 2, above, have already transformed “subjects” into the “ruled”) who can make valid claims on the state for such protection.

4. The ruled have rights that enable them to participate in the decision making (with this concept, the “ruled” are transformed into the “citizens”).

5. The authority has not only powers but also certain obligations that may be claimed by the citizens.

6. All these rights and freedoms are granted equally to all persons. (This transforms individual rights/privileges into human rights).

The ideas on this list have been emerging, disappearing, reemerging and evolving throughout history, reflecting changing social conditions and serving various needs.4 Before the concept of human rights could be formulated and adopted, a number of specific customs, legal provisions, institutions, and ideas had to emerge.

This chapter focuses on two distinct ideas: notions of individual rights that emerged by the eighteenth century and human rights, which are essentially a twentieth-century concept. Continuities and differences between these two ideas are relevant today, influencing the very understanding of the nature, the meaning, and methods for the implementation of human rights.


The Origins

Individual rights evolved over a long period of time,5 beginning with the assertion of freedoms that characterized the “old constitutionalism” that became widespread

in medieval Europe.6 Over time, society has gradually acknowledged both individual freedoms and the scope of limitations placed on the power of rulers and governments.7 Simultaneously, instruments of due process of law that limit the arbitrariness of governments have also grown.8 With the emergence of kings’ councils, church councils, and early parliaments, the notions of participation and representation slowly gained acknowledgment. Finally, Christian communities accepted their responsibility for the basic survival needs of all their members.9 Such responsibility was later assumed by absolute monarchs, becoming, in fact, one of the justifications for the absolute power held by the “enlightened” monarch. Later, some of these obligations were transformed into social rights or, more precisely, into the expectation of social benefits.

Medieval rights differed substantially from today's concept of rights. Indeed, the idea of the separateness of individual identity and the notion of individualism first appeared in the medieval West,10 but rights, as a rule, were granted to groups and not individuals.11 Although they contained the rudiments of relief and welfare, medieval rights and immunities were not equal; they were bestowed by kings on individuals, estates, or corporate bodies. They resembled privileges rather than rights, in the

contemporary sense. It was only after the principle of equality gained acceptance that these privileges for the few could become rights for everyone.12

During the Enlightenment, numerous medieval ideas converged to form a coherent philosophical concept of the rights of man. This idea was directed against the absolutism of monarchs and emphasized individual freedoms and limited government. John Locke, the best known theoretical opponent of absolutism, suggested that people transfer to the state only limited prerogatives – to protect them, to administer justice, and to punish wrongdoers – while retaining all other powers as inalienable rights.13 These inalienable rights form the basis for limited government. This means that the state cannot claim that it has powers in those spheres where individuals have retained their inalienable rights.14 The contract could be dissolved by the people at any time if the ruler did not fulfill his or her obligation or otherwise violated the people's rights.15 This idea provided justification for American colonists’ claim for independence and became the foundation of American statehood. In England, where the absolutist king had to surrender to the revolution, the triumphant Parliament itself became absolutist. Its power, however, was limited by the Bill of Rights and other documents, by common law and an independent judiciary, by the free press, and by other institutions of a strong, independent society. In France, the idea of the rights of man and citizen provided justification for the Great Revolution of

1789. Although the revolution transferred power from the king and aristocracy to the bourgeoisie – as well as to the bureaucracy and the army – it did not change the absolutist character of the state. From the seventeenth century onward, the French state was in control of society and of the rights of its citizens. We can trace the consequences of absolutism's victory in continental Europe (with the exception of Holland) and the victory of civil society in the United States, Holland, and, to some degree, England – all the way to modernity.

In antiabsolutist states, people have antecedent rights that limit the government. Instead of living as mere subjects, they are on an equal footing with state officials. Independent courts protect the rights of citizens and work to ensure that the government acts within the limited powers assigned to it by the constitution. Whether written or not, it is this constitution – and not the will of a ruler – that constitutes the supreme law. In post-absolutist states, however, the government has power and the people have duties. The government is usually highly centralized and has a monopoly on most social activities, including charity. This limits potential for social innovation and change.

Two Traditions of Rights

The difference between triumphant and defeated absolutism is reflected in the two traditions of rights in the West. One emphasizes the inherent rights of the individual and the rights of the such “natural” social groups as family or church that may be claimed against a state's authorities. This tradition, best elaborated by Locke, dominated in seventeenth century England and, particularly, in the eighteenth-century American colonies that struggled against the British state. Although England has been making incremental departures from it since the eighteenth century, this tradition is still referred to as Anglo-American.

On the European continent, another tradition of rights prevailed. Andrzej Rapaczyński concludes his study of the influence of the U.S. Constitution abroad by stating that

The American idea of a weak, divided government, restrained by judicially enforceable individual rights had only limited attractiveness in those countries, including most European democracies and the majority of countries of the developing world, in which the state has been viewed as a guardian of the common good and a provider of individual benefits, and not as a necessary evil always threatening the interests of the citizens.16

Outside the United States, rights were perceived as a sort of grant given by an enlightened state to fulfill its obligations to society.17 Among these obligations was a ruler's duty to protect the citizens and take care of them in times of need or deprivation. Understood in this way, rights existed not to protect individuals from government but, instead, to be realized through the government of an active rather than passive state. This vision of rights was embodied in the French revolutionary constitution of 1790, as well as in the second Declaration of the Rights of Man and Citizen of 1793.18 It was also present in the General Code of Prussia of 1794, the constitution of Norway of 1815, and in the social legislation that spread throughout Europe, this time including England, in the late nineteenth century.

Louis Henkin defines the two traditions in the following way. According to the first, “individual rights protect autonomy and freedom, limit government, and provide immunity from undue, unreasonable exercise of authority.…But in the nineteenth century there began to grow another sense of rights, rooted not in individual autonomy but in community, adding to liberty and equality the implications of fraternity.” This suggests “a broader view of the obligations of society and the purposes of government – not only to maintain security and protect life, liberty and property, but also to guarantee and if necessary provide basic human needs.”19

Mary Ann Glendon distinguishes between the “individualistic” Anglo-American tradition of rights that has emphasized individual liberty without much attention to constraints and responsibilities and the “dignitarian” tradition prevailing on the European continent.20

The Second Generation of Rights

Despite these differences, the English Bill of Rights (1689), the U.S. Declaration of Independence (1776), and the French Declaration of Rights of Man and Citizen (1789) have forever remained crucial milestones in the history of freedom.

The eighteenth-century concept of rights, however, was limited. Although some philosophers of the time used the term human rights and insisted on their universal application,21 the Enlightenment idea of rights was limited to a handful of property owners, excluding women,22 children, those who did not own property, and the entire non-White population of the world.23 In the United States, the idea of rights did not prevent the extermination of native people and the continued enslavement of Black Americans.24

In contrast to their medieval predecessors, eighteenth-century rights were individual, in that it was an individual person rather than a group that was the locus of these rights. As they were limited to only some individuals, however, these rights were not yet “human.”25

The nineteenth century did not provide fertile soil for the idea of rights. New concepts took over whose authors were eager to sacrifice the individual for the benefit of groups, including nations, societies, unlimited majorities, and social classes.26 In Europe, where the social problem was growing ever more acute, the eighteenth-century idea of civil liberties and political rights was too limited. The second generation of rights emerged with the aim of offering protection of basic social and economic needs for members of an industrial society.27 This new concept included positive obligations of the state to regulate labor relations and markets to protect workers vis-à-vis the predominant power of owners and prevent excessive

exploitation. Thus, the concept of “freedom from government” was extended to include “freedom through government.” Social legislation was adopted in Bismarck's Prussia and in England, where it was accompanied by the gradual lifting of property requirements for voting and by growing franchise.

This development accelerated in the interwar period with the formation of the International Labor Organization and the adoption of social policies by the United States government during the New Deal. In the Four Freedoms speech of 1941, President F. D. Roosevelt spoke of freedom – including the freedom from want – “everywhere in the world,” thus embracing the continental concept of rights.28

Few people, however, thought in terms of human rights at the peak of colonization in a time of rife nationalism, imperial states, and class struggle. Despite the condemnation of slavery in the Paris Peace Treaty of 1814,29 the colonization by Whites of non-White people continued and could not be reconciled with the idea of human rights.30 In fact, colonization actually increased the popular appeal of social Darwinism and racism. Among White people, demands for better life were not justified in terms of human rights but in categories of a nation's well-being and history, the notion of the greater good for the greater number of people, social justice or humanitarian assistance. At last, with the mid-nineteenth-century abolitionist movement in the United States and international opposition to the atrocities committed by Belgian troops and entrepreneurs in the Congo, international humanitarian movements were formed.31

Humanitarian considerations led to the formation, in 1863, of the International Committee of the Red Cross and to the adoption of a number of international

conventions limiting the arbitrary application of force during armed conflicts.32 The crisis of nineteenth-century empires led to growing concerns about the plight of minorities. Some of the great powers invoked a right to humanitarian intervention “to prevent the Ottoman Empire from persecuting minorities in the Middle East and the Balkans.”33 Minority rights were of great concern after World War I, when the multicultural Russian and Austro-Hungarian empires disintegrated into numerous new states with substantial minorities. At the Paris Peace Conference, the recognition of independent Poland, Czechoslovakia, and other states in Central Europe was made contingent on the guarantees of certain collective rights to the minorities.34 The mechanism of protection through general constitutional provisions, peace treaties, and bilateral minority treaties35 designed in Paris proved unsuccessful and gave way to the growth of nationalism and racism in authoritarian Germany, Italy, and a number of other countries in Central Europe.

Nevertheless, minority clauses in a number of peace treaties with Austria, Bulgaria, Hungary, and Turkey, as well as bilateral minority treaties, included provisions that concerned other groups as well. They assured protection of life and liberty to all inhabitants of the countries in question, as well as equal civil and political rights for all minority nationals in such countries. In 1922, when the states concerned protested that their sovereignty was being violated as other states were not subject to such limitations, the Assembly of the League of Nations adopted a resolution recommending that all other states voluntarily adopt similar standards with respect to their minorities. Even though no further steps were taken on the intergovernmental level, the provisions in minority clauses became the basis for proposals to codify human rights in international law.


First Proposals

Mass displacement of people after World War I and minority problems were exacerbated by the pogroms in Russia and the aftermath of the Bolshevik revolution. The national upheavals resulted in members of the White middle class and upper classes who had hitherto enjoyed privileges joining the traditional victims of

abuse – the poor, the enslaved, and the excluded: “The fact that citizens, all citizens, had to be protected from the abusive instruments of the modern state would become increasingly clear between two wars, the period that helped to shape the vision of human rights in its current form.”36

One such victim was Russian jurist Andre Mandelstam, head of the legal office of the Russian ministry of foreign affairs in 1917. After the Bolsheviks claimed power, Mandelstam escaped to Paris, where he taught international law. After 1926, he joined Antoine Frangulis, who had founded the International Diplomatic Academy.37 In November 1928, the Academy adopted a resolution prepared by Mandelstam and Frangulis that generalized obligations contained in minority clauses in the form of a declaration of rights.38 A year later, the International Law Institute in New York adopted a Declaration of the International Rights of Man drafted by Mandelstam, who admitted that the need for the recognition of human rights became manifest after “the horrors perpetrated under the government of the Soviet Union.”39 The Declaration was widely publicized in the 1930s by a number of nongovernmental organizations and academic institutions that called for the adoption of standards that would limit coercive powers of states and protect fundamental rights.40 Protestant churches also called for the establishment of a peaceful global order centered around human rights.41

The awareness of the need for rights was hastened by the developments in Germany after Hitler's ascent to power in January 1933. The Nazis rejected the concept of the rule of law (the Rechtstaat) and sought to build a new legal order based on German traditions (Volksseele).42 It was introduced in a sweeping wave of emergency decrees, based on powers given to Hitler by president Paul von Hindenburg and justified by the Reichstag fire on February 27, 1933.43 As a result of the March 5 general election, the Nationalsozialistische Deutsche Arbeiterpartei (NSDAP) became the largest party but one still dependent on its coalition partner, the German National People's Party, for a majority in Parliament. This obstacle toward absolute rule was overcome on March 23, when the Reichstag adopted the Enabling Act that authorized the cabinet – for 4 years – to enact legislation, including laws deviating from or altering the constitution, without the consent of the Reichstag.44 Thus, a dictatorship was legally established. A new wave of laws followed, primarily stripping Jews of any citizen's rights.45 These laws influenced society and, beginning with the German Swimming Association's April 1933 decision to exercise “purification,” Jews were expelled from all civic associations in Germany. The Nuremburg Laws (promulgated at the annual NSDAP rally in Nuremburg in September 1935) sealed this process and opened the doors for a subsequent extermination of Jews.

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