Tag Archives: human rights

Human Rights and International Relations. Some Remarks

This special issue of Nordicum-Mediterraneum contains select proceedings from the meeting of the Nordic Summer University (NSU) research circle “Human Rights and International Relations”. The meeting took place in Wroclaw, Poland, from the 24th to the 26th of February 2017, where we were very well received by the University of Wroclaw, for which we thank them warmly.

The program of the research circle, “Human Rights and International Relations”, runs from 2015 to 2017. This circle explores how human rights militancy and more generally the protection of human rights are affected by the international human rights regime and the way this regime enters state relations, and it also examines how the international human rights regime modifies the relations between states and how this is explained in international relations theory.

The contributions from this circle address the issue of human rights implementation. What happens when universal principles are translated into concrete action. Magdalena Tabernacka analyses the political battles surrounding the implementation of the Convention on Preventing and Combating Violence against Women and Domestic Violence. Barbara Gornik shows how the plan to redress the erased residents of Slovenia was derailed. Athanasia Petropoulou demonstrates how visions of European citizenship fail the test of reality. Liudmila Ulyashyna reflects on how human rights law can be rooted into national legislation through education, in order to enhance the implementation. Eyassu Gayim addresses the relationship between human rights law and humanitarian law, and reflects on the nature of the human being and its rights in both of them. If they are based on the same fundamental considerations, why implementing them separately? Mogens Chrom Jacobsen challenges common views about Protestantism as the originator or foremost promoter of human rights. Implementation often depends on how human rights conform to pre-existing ideas about religion and politics, but such conformity can also be constructed to fit the purposes of the moment.

An additional contribution by long-time collaborator of Nordicum-Mediterraneum, Prof. John McMurtry, is also included, in which the worrisome implications of Brexit for human rights in the UK are discussed, given their EU-based emanation, with special emphasis on labour, environmental and financial regulation. McMurtry, who was Honorary Theme Editor for UNESCO’s Encyclopedia of Life Support System, authored therein the encyclopaedia of philosophy called “Philosophy and World Problems”. It is in the same spirit that he offers his contribution to Nordicum-Mediterraneum, in the hope of prompt and wide circulation. Consistently, the text is listed in a new category called “Philosophy and World Affairs”.

The abstracts of the published papers can be found below, as these were submitted by the authors:

Athanasia Petropoulou

On the Margins of Citizenship: The Refugee Crisis and the Transformation of Identities in Europe

Transformations of the notion of citizenship in today’s globalized context brings us closer to what Yasemin Soysal calls a post national citizenship characterized primarily by the erosion of the national identity as the distinctive form of belonging and the generalization of rights to non-nationals that initially were only attributed to members of the polity. While this vision has proven to be rather relevant in analysing changes in contemporary membership formations, it fails in some measure to capture the shortcomings of the universal human rights regime and the inherent tensions between the status of aliens and nationals-citizens. The current so called “refugee crisis” in Europe shows the predicaments of populations seeking to escape from war and deprivation and the uncertain legal status of these populations, whose rights are seriously impaired. Drawing on the notion of the “right to have rights” the study aims to explore how the European responses in this context, based on strong inclusion-exclusion mechanisms, can be pertinent for analysing and capturing current transformations of the notion of European citizenship and its future developments. In this respect, the current shortcomings of the international human rights regime can help us reconsider the foundation and notion of European citizenship. It is further suggested that the institution of European citizenship in its current form needs to be superseded, in order to attain a truly cosmopolitan content and to provide a foundation for a universalistic human rights regime. The main proposal presented in this direction, stresses the need to rethink human rights in terms of political practices and to “rediscover” the revolutionary heritage of human rights from an Arendtian perspective.

Barbara Gornik

The Politics of Victimhood in Human Rights Violations: The Case of the Erased Residents of Slovenia

In 1992, during the process of gaining national independence, the Slovenian government unlawfully erased 25,671 individuals, mainly citizens of other republics of the former Yugoslavia from the Slovenian Register of Permanent Residents. These individuals, who later become known as the Erased, became irregular foreigners; nevertheless, many of them continued to live in Slovenia for more than a decade without enjoying basic human rights. In 2012 the European Court of Human Rights in the case of Kurić and others vs. Republic of Slovenia held unanimously that there had been a violation of the 8th, 13th and 14th Articles of the European Convention on Human rights. Following this judgement the Slovenian government adopted a compensation scheme for the Erased, where it introduced the criteria determining conditions for their redress. Building on this, the article reflects on the political and legal construction of victimhood and reveals the elements that constitute the victims of human rights violations. The article highlights the notions of political loyalty, legal conformity and territorial attachment as one of the most decisive elements of victimhood. In this manner it shows that the subjectivity of victims in the case of the Erased is not defined within the human rights discourse but is grounded in nationalist terms and categories.

Eyassu Gayim

Humanity and Human Rights: The contours of international law

Laws regulate conducts by responding to social and political requirements. This holds true for international law as well, which now follows two separate tracts, one for international human rights law and another one for international humanitarian law. If these two branches of law are intended to protect the dignity and worth of human beings as it is often said, why separate them? Does humanity really exist? If it does, how does it relate to human rights? If the two are distinct where do they converge? This article highlights these questions by revisiting the contours of international law.

Liudmila Ulyashyna

Human Rights Education for lawyers: A Case Study Into the Universality and Its Relativism

Normative universality in the international human rights law shall be rooted into national legal contexts for its effective implementation. Human Rights training for lawyers ensures that lawyers receive appropriate education for the practical application of the principle universality. The case study shows that learners often lack the knowledge of the peculiarities of international human rights law, which differ from the ”classical” public law notions. Human rights training curricula should include topics, which form lawyers´ understanding of international and national legal regimes in their interdependency. Concepts of ”International Human Rights Standards”, ”Implementation and de facto implementation”, ”Status and Role of Individual/Human Rights Defender” being delivered to learners increase their knowledge and awareness of the direct applicability of international human rights norms and make them effective actors of the two-way process facilitating “a cross-fertilization” between national law and international human rights standards.

Mogens Chrom Jacobsen

Protestant Origins of Human Rights Challenged

This paper will challenge common views about Protestantism as the originator or foremost promoter of human rights. The idea of a Protestant origin is launched by Georg Jellinek and disputed by Emile Boutmy. The idea is still current and John Witte can thus claim that Protestantism was in part a human rights movement. The point of departure for this strain of thinking is religious toleration, which is seen as a particularly Protestant achievement. We will argue that a more precise notion of what 18th century human rights were and a closer look at mainstream Protestant political philosophy will tell another story.

Magdalena Tabernacka

The Council of Europe Convention on Preventing and Combating Violence against Women and Domestic Violence in the Polish Social Safeguard System

The ratification of the Council of Europe Convention on preventing and combating violence against women and domestic violence in Poland was preceded by a heated debate. From the very beginning it was the object of political battles between the conservative and liberal circles. Culturally and socially conditioned position of women has influenced its operation and the scope of its implementation. The Convention is a universally binding tool which guarantees the protection of human rights in events of violence against the woman and children. The case of this Convention in Poland proofs the existence of a universal European understanding of human rights protection standards. The Convention thus has a protective function not only for individuals but also, in a broader context, for the common European cultural identity.

John McMurtry

 

Is Brexit a Neo-Liberal Coup against 45 years of Life-Protective Law and Regulation?

The self-maximizing growth of private-money power over all life and life support systems – life capital in a word – to exploit for non-producer profit is not yet recognized as a master degenerative trend built into the ruling meta program of which Brexit and Trump are the latest Anglo-American expressions. Central to this unseen meta trend is the compulsive dismantling of life-protective law and rights whose masking justification has shifted from ‘globalization’ to ‘nationalism’. The Left is befuddled. It sees the anti-Labour implications in both the financialized EU and the de-regulating Brexit with no coherent program to overcome both. The Right blindly follows the inner logic of the ruling economic model while Liberals offer only partial and incompetent market fixes for collective life capital sustainability. All fail to see Brexit’s giant step towards life capital degeneration and eco-genocide at the margins as environmental and civil commons are stripped of their public funding by privatization and de-regulation.  The cumulative carcinogenic conversion of organic, social and ecological life organization into ever faster private money-profit sequences multiplying to the unproductive few is the predictable system result.

 

On the Margins of Citizenship: The Refugee Crisis and the Transformation of Identities in Europe

The 15th December 2016 the Grand Chamber of the European Court of Human Rights (ECtHR) handed down its judgement in the case of Khlaifia and Others v. Italy. The judgement concerns the detention of undocumented immigrants at the Italian borders and their subsequent expulsion from Italy to Tunisia. Whilst the facts of the case took place in the immediate aftermath of the Arab Spring in 2011, the case is evocative of the so-called “refugee crisis” and the predicaments of millions of third-State nationals seeking to cross the European borders.

Transformations in contemporary configurations of sovereignty, citizenship and rights have made many scholars argue that we are closer to a post-national citizenship characterized primarily by the erosion of the national identity as the distinctive form of belonging and the generalization to non-nationals of rights which were initially attributed only to members of the polity (Soysal, 1994). According to this approach, the institutionalization of human rights on the international level and the undermining of national sovereignty are indicative of the shifting of the basis of the entitlement of rights from nationality to universal personhood (Cohen, 1999). While this vision has proven rather pertinent in analysing changes in contemporary membership formations, it fails to capture the shortcomings of the universal human rights regime and the inherent tensions between the status of aliens and nationals-citizens. The fate of the people, referred to indistinctively as “asylum seekers”, “refugees”, “undocumented” or “illegal immigrants” in contemporary’s public discourse, is inextricably linked to the paradox and the perplexities of the contemporary “human rights regime”. Whereas the institutionalization and global expansion of human rights norms in the post-war era and the codification of the right to asylum constitute major advancements regarding the protection of the human person, the contemporary “refugee crisis” demonstrates that the problem of “rightlessness” can be still present in the so-called “age of rights” (Henkin, 1990).

In fact, the problems encountered by different categories of immigrants and refugees can partially be attributed to an implementation deficit, “a discrepancy between formal rights and their praxis” (Soysal, 1994). However, the difficulties of these groups in claiming some basic rights do not only result from external factors, but also reveal the limits of these norms. These groups, as Seyla Benhabib argues: “exist at the limits of all rights regimes and reveal the blind spot in the system of rights, where the rule of law flows into its opposite: the state of exception and the ever-present danger of violence” (Benhabib, 2004).

Drawing on the notion of “the right to have rights”, the phrase initiated by Hannah Arendt in her attempts to reconsider human rights in terms of a right to citizenship and humanity (Arendt, 1973) and the creative reading of Arendt’s critique of human rights by Ayten Gündogdu (Gündogdu, 2015), the present study aims to explore how the European responses to the current “refugee crisis”, based on strong inclusion-exclusion mechanisms which in their turn erode the human rights of refugees and asylum seekers, can be pertinent for capturing and analysing the notion of European citizenship and its future developments.

In the next two sections, it will be argued that the restrictive policies regarding the managing of the refugee crisis by the European Union needs to be directly associated with the shortcomings of the institution of European citizenship and its failure to contribute to the creation of a European demos. In this regard, the current failure of European citizenship to fulfil a universalistic ambition and to provide the foundation for a cosmopolitan political project cannot be considered without taking into account the shortcomings and inherent paradoxes of the human rights regime. In this respect, the failures in the European conception of citizenship are interrelated, though not interdependent, with the failures of the human rights regime, as it stands. In the third section, the paradoxes of the human rights regime and the question of rightlessness will be discussed, in order to show how this regime partakes in and exemplifies this failure. It is argued in the last part of this paper, that in order to reinvent the notion and content of European citizenship, we need to reconsider human rights. Rethinking human rights in terms of political practices is important in order to reinvent the notion of citizenship, as a foundation of a truly cosmopolitan polity, where human rights can be recognized to new subjects.

European Citizenship in a Post-National Context

European citizenship is one of the unaccomplished political projects of the European Union, seeking to give a popular legitimization to its construction and perpetuation. Having the protection of the person and human rights in the heart of its conception, European citizenship is primarily conceived as a legal relationship between the individual European citizen and the membership of the European polity. Without disregarding the connection between an individual and its nation State, which in fact constitutes a presupposition for the acquisition of European citizenship, the institution of the European citizenship aims at superseding both nationality and nationally confined citizenship, as the only forms of belonging in a polity.

The emergence of a “post-national” citizenship, according to some authoritative doctrines, is the result of transformations in the relationship between citizenship and the national State. European citizenship participates in this transformation, as it provides for a space where equal rights are recognized to European citizens irrespective of their nationality. In this context, while European citizenship was at its very beginning associated with internal mobility of labour and the creation of an internal market, progressively, it reflected concerns about the transformation of the single market into a People’s Europe.

The institution of European citizenship is to a considerable degree shaped by the tension between the two opposing dynamics, intergovernmentalism and supranationalism, the two major trends which dominate the policy and discourse on the subject (Kostakopoulou, 2007). The process carries with it fundamental ambiguities, contradictions, and tensions. The weakening of traditional state prerogatives with regard to the entry and residence of economically active or economically self-sufficient community nationals has been, in this respect, accompanied by the reinforcement of the dichotomy between citizens and aliens, be they resident third country nationals, migrants, asylum seekers or refugees. Processes of equalization thus coexist with processes of exclusion, and the relativization of the Member States’ borders is accompanied by the strengthening of the external frontiers of the Union and the relocation of migration controls to third countries (Kostakopoulou, 2007). The gap between “third country nationals with valid permits” and illegal migrants constitutes a direct challenge to the European citizenship’s cosmopolitan ambitions. This gap has to be directly associated with the restrictive asylum policies, which often fail to conform with the standards of the Geneva Conventions, the construction of a “space of Freedom, Security and Justice”, the criminalization of illegal immigration and the current rise of a nationalistic public discourse, as manifested in the rise of far-right political parties in Europe.

The external control of the borders of the European Union and their closure, the refusal to provide safe and legal routes for third country nationals in need of international protection are closely linked to the conditions under which the European identity is shaped and conceived. Consequently, the fight against illegal immigration raises the question of the symbolic borders determining the conditions of participation in a given political order. The fight against illegal immigration, which has been one of the goals of the creation of a “Space of Freedom, Security and Justice”, has fuelled the restrictive policies of the Union as regards the current “refugee crisis”. These policies have to be considered in the context of the broader procedure of the European integration and the shaping of a sense of belonging in the European Union as the foundation of the citizenship for the members of the European polity. In this perspective, the strategies applied by the European States reveal how Europe is constructing the figure of the “Other” and its own identity (Duez, 2008). As Etienne Tassin has rightly pointed out, “far from being a ‘collateral damage’ of European unification, illegal immigration could on the contrary be the heart of the problem” for it is impossible to accept “that this is nothing but a border police matter that would leave unscathed the unique logic according to which political Europe is structured” (Tassin, 2007).

In this regard, it is argued that the response provided by European institutions and States to the current immigration and refugee crisis is indicative of the shortcomings of the European citizenship and the European identity, the limits and contradictions of the human rights regime, the failure of the European demos as it stands and its cosmopolitan ambitions. The failure of the European Union to implement more inclusive policies and to provide a legal status conferring basic rights to undocumented immigrants or asylum seekers is a sign manifesting the disability of the European elites and institutions to conceive the project of European citizenship as a process of eroding identity boundaries and of creating a space where “universal rights” are applied. However, it can also be argued that the current crisis could constitute an opportunity to reconsider the concept of European citizenship and contribute to its transformation. If citizenship can be read as a historical process, European citizenship can also be seen as a laboratory of shaping new policies of belonging, thus extending some basic rights to non-members of the European polity and strengthening the “participation to collective self-government”.

Refugee Crisis and European Responses

Throughout Europe there are many migrants, primarily rejected asylum seekers, who live in a state of protracted legal and social limbo without any long-term prospects. About 60 000 refugees are stranded in Greece, where 26 400 are children, mostly Syrian, according to current estimations. The mass influx of displaced people, refugees, asylum seekers and immigrants has pushed the European foundations to its limits. The Member States have replied with border closings, erection of fences, racist and xenophobic reactions, and have reclaimed their sovereignty (Kapartziani, Papathanasiou, 2016).

Asylum seekers and migrants in Greece and other European countries face multiple human rights violations, including obstacles in accessing adequate protection, and reception conditions that are well below international human rights standards. The situation is particularly dire for people, such as pregnant women, female heads of households, unaccompanied children, people with disabilities, and the elderly.

Despite common, binding EU asylum standards, inadequate implementation and enforcement mean that there are deep disparities among EU member states with respect to procedures, reception conditions, and treatment of asylum seekers. These disparities are at the root of the distortions in the EU asylum system and explain many of the tensions and divisions among EU member states when it comes to addressing migration and asylum challenges (Human Rights Watch, November 2016).

The European policies in this respect reveal the fragility of human rights on which the European construction has been founded and shows that national considerations are central to how the European identity is generally conceived. However, the restrictive policies of the European Union manifest also the shortcomings of the universal human rights regime. Within this regime, the claims of undocumented immigrants, and even asylum seekers or refugees regarding access to basic rights, cannot be accommodated easily. In this respect, it would be pertinent to examine the case law of the European Court of human rights, one of the most prominent institutions in the field of protection of human rights in Europe. Reading the case law in the light of H. Arendt’s considerations on “statelessness” and “rightlessness” can help us understand the inherent paradox of human rights and the uncertainties of its current normative and moral foundations.

The Paradox of Human Rights and the Question of Rightlessness

The multiplication of “waiting zones”, “hot spots” and other similar sites within the context of contemporary immigration controls reveals the challenging problems that various categories of migrants encounter as they claim and exercise human rights. I will try to approach these problems by turning to one of the key arguments in Hanna Arendt’s reflection on statelessness in the first half of the 20th century: “The stateless found themselves in a ‘fundamental situation of rightlessness’”, Arendt claims, “as they lost not only their citizenship rights but also their human rights. In the absence of a political community that could recognize and guarantee their rights, the stateless were deprived of legal personhood as well as a right to action, opinion and speech” (Arendt, 1973).

As Güdongdu notes, from an Arendtian perspective, personhood, or the artificial mask provided by law, is important, as it allows public appearance without the pervasive fear of arbitrary violence and enables rights’ claims to be articulated (Arendt, 1990). Without this mask, one is relegated to a certain form of civil and social death. However, legal personhood remains an artifact and not an inherent essence. It is therefore necessary to attend how it can be effectively unmade or undermined in certain conditions. Possibilities of qualifying and evading personhood are nowhere more visible than in the cases of asylum and immigration, due to the centrality of the principle of territorial sovereignty to the ordering of the international system. Given these possibilities, “rightlessness” must be reconsidered as a critical concept that can alert us to various practices that undermine the legal personhood of migrants. Rightlessness in this regard is thus conceived not as the absolute loss of rights but instead as a fundamental condition denoting the precarious legal, political, and human standing of migrants (Güdongdu, 2015).

I propose to analyse the limits and exclusions of the existing inscriptions of personhood in human rights law by examining the recent case of the ECtHR referred to in the beginning of this paper. The case is about detention at the Italian borders (including the island of Lampedusa) of aliens, namely undocumented immigrants, and their expulsion from Italy to Tunisia. Whilst the events took place in 2011, in the immediate aftermath of the Arab Spring, the issues raised before the Court by the applicants and the principles outlined by the judgement appear relevant to the current “refugee crisis” and its management by the European Union institutions and member States. The case concerns the arrival of the applicants, three Tunisian migrants, on the island of Lampedusa, their initial placement in a reception centre and subsequent confinement on two ships moored in Palermo harbour, followed by their removal to Tunisia in accordance with a simplified procedure under an agreement between Italy and Tunisia of April 2011. The applicants were complaining about the conditions of their detention, a violation of the right to personal liberty, as well as a violation of the prohibition of collective expulsions.

It is to the credit of the Court that the judgement corroborates its position on the value of personal liberty, by reminding States that legal certainty is a crucial principle when it comes to a deprivation of liberty, and it cannot be set aside “even in the context of a migration crisis” (§106). However, the Court found that the conditions in the Lampedusa reception centre did not amount to inhuman or degrading treatment. In this context, the ECtHR reiterated that an increasing influx of migrants cannot, per se, absolve a State of its obligation under Article 3, but conducted, so to say, a “reality check” of the situation suffered by the applicants vis-à-vis the actual situation in which Italy found itself due to the migratory pressure at the time of the Arab Spring (Venturi, 2017).

The Grand Chamber affirmed, firstly, that “it would certainly be artificial” not to consider that the undeniable hurdles faced by the applicants originated from a situation of extreme difficulty confronting the Italian authorities at the relevant time. Secondly, the Court observed that the applicants were not asylum seekers and therefore, they “did not have the specific vulnerability inherent in that status” (§194). Conversely, the Grand Chamber recalled that the applicants were in a weakened physical and psychological condition when held at the centre, due to the dangerous sea crossing (§194). Nevertheless, according to its view, the applicants did not bear the burden of traumatic experiences that had justified the vulnerability approach adopted in a previous case MSS v. Belgium and Greece. Furthermore, the Grand Chamber also pointed out that the applicants did not belong to any of the categories traditionally regarded as vulnerable, but they were young males without any particular health issue.

These arguments seem to corroborate the ECtHR’s nuanced approach to the notion of vulnerability, which, on the one hand, is inherent in all asylum seekers while, on the other hand, is attached to certain individuals because of specific conditions that put them in a more disadvantaged position. Besides, the Grand Chamber’s reasoning seems to give a hint on what vulnerability is not: being a healthy, young man, albeit with irregular status (Venturi, 2017). In any event, the utility of the notion of “vulnerability” in the Court’s case-law can also be criticized, because the legal status of the refugees and asylum seekers in contemporary international law is already founded, primarily, on their “vulnerable” status. The notion can also be considered responsible for introducing further differentiations of the status of non-nationals, be they refugees, illegal immigrants or asylum seekers.

As to the violation of Article 4 of Protocol 4 to the ECHR, concerning the prohibition of collective expulsion, the Grand Chamber found no violation. In the Court’s view, the “relatively simple and standardized nature” of the refusal of entry orders which were merely based on the applicants’ nationality due to the bilateral agreement in force between Tunisia and Italy, could be explained by the fact that the applicants did not allege any fear of being returned or any other legal impediment. In the ECtHR’s opinion, Article 4 of Protocol 4 does not warrant an unfettered right to an individual interview, but only the effective possibility to submit arguments against deportation. As the applicants had this possibility, but they did not raise any argument to challenge their expulsion, the latter did not qualify as “collective” in nature.

The judgement of the Court seems to grant States a large margin of action when dealing with irregular migrants. The judgement gives rise to many conclusions. As some scholars have argued, human rights are ambivalent, they have both “jurisgenerative” and “jurispathic” dimensions (Cover, 1984). We become aware of the “jurisgenerative” dimension of law when existing rights are “reposited, resignified, and reappropriated by new and excluded groups”, as Seyla Benhabib notes (Benahbib, 2006). But it is equally important to look at how human rights law gives rise to “jurispathic” processes when its norms are invoked to affirm the sovereign right to detain or deport rejected asylum seekers and undocumented immigrants. The Khlaifia case shows that the Court recognizes some rights to undocumented migrants, thus extending personhood to migrants, but also upholds the principle of territorial sovereignty that enables a state to expel these migrants, a practice amounting to the unmaking of that personhood.

The judgement also demonstrates that the body has become a crucial site for claiming rights, giving rise to what Didier Fassin aptly calls “biolegitimacy” (Fassin, 2005). It is in the suffering body of the migrant, refugee or asylum seeker that States, courts and refugee advocates will look for some irrefutable truths. The status of the vulnerability as a bodily narrative becomes central also in the reasoning of the Court. The attempt to adjudicate rights claims based on suffering bodies, risks eroding the personhood of migrants who, like the ones in the Khlaifia case, cannot prove any particular suffering (Gündogdu, 2015).

The notion of “vulnerability” closely connected to the suffering body of the migrant points to another arbitrary rule faced by migrants. This new rule is directly related to the compassionate humanitarianism, which can be described as the fact that States, courts and rights advocates turn to compassion to make decisions about suffering. This “new moral economy” risks unmaking the equal personhood of migrants, rendering the rights dependent on a capricious moral sentiment (Gündogdu, 2015). As a result, we are not too far away from Arendt’s argument that the stateless find themselves in a fundamental condition of rightlessness because of their dependence on goodwill or generosity of others (Arendt, 1973). The Court in Khlaifia case reproduces the humanitarian tendency to depict refugees as a vulnerable category, and draw as a consequence a distinction with other categories of migrants who are placed outside the realm of vulnerability. But that move places the dichotomies at the intersection between a moral economy centred on compassion and an administrative rationality directed at the management of vulnerable populations. Thus, from an Arendtian perspective the Court ends up subjecting the rights of migrants to arbitrary decisions about the conditions under which a human body can be considered as suffering and worth of protection (Gündogdu, 2015).

The judgement of the European Court is indicative of the tensions inherent to the contemporary human rights regime and its connection to the notion of State sovereignty. The case also underlines the dangers of “subjecting” the implementation of human rights on moral considerations that can prove to be highly relative or arbitrary. In the next chapter, it is argued that the current “refugee crisis” points primarily to a crisis of human rights within Europe and beyond, implying a need for a reconfiguration of citizenship beyond the nation-state framework and the notion of sovereignty. In this regard, we need to rethink of human rights in the light of a “reinvented” citizenship. The European citizenship, as the first historical precedent with cosmopolitan aspirations, could provide a space for experimentation of this new form of belonging to a truly universalistic human rights regime.

Forming a European Citizenship: The Failure of a Cosmopolitan Ambition or a Chance for the Future of Europe?

How can we overcome the inherent tensions and paradoxes of the human rights regimes and reflect accordingly on the future of citizenship in Europe? Has the notion of European citizenship the potential of reinventing the European polity where equal rights are offered to all? Is the concept of EU citizenship still appropriate today? How can European Citizenship respond adequately to the current challenges and fulfil the cosmopolitan dimension it has?

It is here argued that in the current refugee crisis, the institution of European citizenship could have provided a basis for a unique experience, consisting in stretching social and political bonds beyond national boundaries and permitting the creation of a new, more inclusive political community. However, EU citizenship in its current form needs to be superseded.

Dora Kostakopoulou develops a “constructive approach” to citizenship, as a promise held by the European Union citizenship (Kostakopoulou, 2007). One crucial feature of “constructive citizenship” is that it postulates a vision of inclusion and equal democratic participation in a community where difference is valued and appreciated and not simply tolerated. Such a conception of citizenship embodies a novel and more flexible conception of demos: it separates demos from ethnic and cultural commonalities and reconfigures it as a political process of participatory enactment. According to this vision, European citizenship should carry with it an ethical responsibility: the responsibility to be nourished by institutions, practices, rules and ideas embodying a commitment to social transformation, democratic reform and respect for the Other.

Etienne Balibar proposes to create new modalities and new perspectives of accession to citizenship, which can even transform its definition. He cites for example the generalization of the jus soli in the whole European Union.  According to this scholar, it is urgent for the European Union to act in order to respond to the humanitarian crisis at its borders. An ideological change is in this regard necessary. As Balibar notes: “We can say that Europe will either be realized by revolutionizing its vision of the world and its societal choices or it will be destroyed by denying realities and by holding onto the fetishes of the past” (Balibar, 2015).

In this regard, it has also been stressed that it would be more in keeping with the nature of the European entity to relaunch the movement for the “denationalization of rights”. This would benefit European citizens, but also those who do not belong to the “inner” nations and it would progressively transform Europe into the place where a “universality of rights” is achieved, founded in a fractional loosening of the bond woven between nationality and citizenship (Lacroix, 2010). In this sense, granting equal rights to illegal immigrants and asylum seekers, mainly by attributing to them the right to belong to the EU political community is essential for reimagining the symbolic and ideological boundaries of the “European polity” and its “cosmopolitan dimension”.

In her turn, inspired by Arendt, Ayten Güdogdu, proposes an original reading of her “right to have rights”. According to this reading the puzzling formulation of a “right to have rights” can be read as an invitation to rethink human rights in terms of political practices of founding. The author is further drawing on the term introduced by Etienne Balibar “equaliberty” (égaliberté) (Balibar, 2010), which foregrounds the inextricable connection between equality and freedom in modern democracy, affirms a universal access to politics, and animates struggles that contest exclusions from rights and citizenship. This reading highlights that the “right to have rights” marks a new beginning radically interrupting the existing regime of human rights and introducing “a hiatus between the end of the old order and the beginning of the new” (Arendt, 1990).

This approach also underlines that the contemporary institutional mechanisms concerning the protection of human rights cannot always respond to new problems of rightlessness. It also highlights that human rights are not simply normative constrains on an established constitutional order but owe their origins as well as their ongoing preservation to political action (Güdogdu, 2015).

The struggles for the rights of the so-called “illegal immigrants” or the “sans papier” in France, as well as the vague of solidarity raised in Greece and everywhere in Europe in support of the refugees trying to escape from war and suffering reveal that human rights are not simply normative constraints regulating an existing political and legal order but also political inventions that can constitute a new order, bring to view new subjects of rights, and reconfigure existing relations between rights, citizenship and humanity (Güdogdu, 2015). Understood in these terms, human rights have an “insurrectional” dimension, to use Etienne Balibar’s term, because they can turn against the constituted political and normative order for the purposes of founding a new one (Balibar, 2004).

The insurrectional dimension of human rights, configured in the political struggles, changes the boundaries of our political and normative universe, as it introduces us to new subjects who were formerly not recognized as human beings entitled to rights. This point shares similarities with Seyla Benhabib’s proposal to understand human rights in terms of “democratic iterations” that involve practices of contesting and redefining existing prescriptions of rights (Benhabib, 2004). These struggles reveal that human rights understood as a “right to have rights” ultimately depend on a type of citizenship enacted by those who do not have a legitimate standing and yet who thrust themselves into the public spaces from which they are excluded. This paradoxical kind of citizenship involves practices of claiming rights that one is not entitled to according to prevailing legal and normative frameworks (Güdogdu, 2015). The political practices of founding and refounding are important not only for establishing the universal validity of human rights but also for reinventing and reaffirming citizenship, also in the context of the European Union, in the face of global transformations that continue to dilute it.

Inspired by the revolutionary heritage of the 18th century human rights declarations, Arendt’s “right to have rights” emphasizes the ineluctable historicity of human rights. These rights as products of historical contingency are also founded on the universal validity of the principle of “equality and liberty” (Claude Lefort), animating the struggles that have inspired the modern human rights declarations. In order to move beyond the deficiencies of the contemporary human rights regime, we need to reevaluate the revolutionary dimension of human rights, by considering them as an ongoing achievement that can challenge their instituted configurations, as well as those of citizenship. Enacting those rights presupposes thus a form of active political participation and action. Taking into account that illegal immigrants or asylum seekers have not a recognized legal standing within the instituted polity, political action takes necessarily the form of a political struggle contesting the established limits of citizenship and conditions of acceding to basic rights. A form of political solidarity by the members of the polity is also essential in this respect. Such practices of political action can contribute to the transformation of the practices of belonging, so that people, as the undocumented immigrants, who do not enjoy any rights or who have only limited rights in Europe, can aspire to a place in the European demos and to an extended human rights regime.

….

The responses of the European states to the current refugee crisis, as well as the responses of the institutionalized mechanisms in the field of the protection of human rights, such as the ECtHR, reveal the deficiencies of the system and the fragility of the human rights values on which the idea of the European demos is founded. Rethinking human rights in terms of political practices can help us reinvent the European citizenship, an institution with a cosmopolitan ambition. In an Arendtian framework, the struggles of new subjects challenging current configurations of human rights and citizenship can open the way to a truly cosmopolitan polity.

…….

The author would like to thank the participants of the Winter Session of 24th-26th February 2017 of the Nordic Summer University in Wroclaw for their comments, as well as particularly Mogens Chrom Jacobsen for his insightful remarks and suggestions on an earlier draft.

 

 

References

 

Case-Law

Khlaifia and others v. Italy, [GC], n° 16483/12, 15 December 2016.

MSS v. Belgium and Greece, [GC], n° 30696/09, 21 January 2011.

 

Reports

Human Rights Watch, EU Policies Put Refugees at Risk, An Agenda to Restore Protection, November 2016.

 

Bibliography

Arendt, Hannah, The Origins of Totalitarianism, Mariner Books, 1973.

Arendt, Hannah, On Revolution, London and New York, Penguin, [1963], 1990.

Balibar, Etienne, “What is a Politics of the Rights of Man?”, In Masses, Classes, Ideas: Studies on Politics and Philosophy Before and After Marx, New York, Routledge, 1994.

Balibar, Etienne, We the People of Europe? Reflections on Transnational Citizenship, Princeton, NJ: Princeton University Press, 2004.

Balibar, Etienne, La proposition de l’égaliberté, Paris, Actuel Marx, Confrontations, Presses universitaires de France, 2010.

Balibar, Etienne, “Borderland Europe and the Challenge of Migration”, www.opendemocracy.net, 8 September 2015.

Benhabib, Seyla, The Rights of Others: Aliens, Residents and Citizens, Cambridge and New York: Cambridge University Press, 2004.

Benhabib, Seyla, Another Cosmopolitanism, Robert Prost (ed.), Oxford and New York, Oxford University Press, 2006.

Cohen, Jean L. “Changing Paradigms of Citizenship and the Exclusiveness of Demos”, International Sociology 14, no. 3, September 1999.

Cover, Robert, “Foreword: Nomos and Narrative”, Harvard Law Review, (1983-1984).

Duez, Denis, L’Union européenne et l’immigration clandestine: De la sécurité intérieure à la construction de la communauté politique, éditions de l’Université de Bruxelles, 2008.

Fassin, Didier, “Compassion and Repression: The Moral Economy of Immigration Policies in France”, Cultural Anthropology 20, N° 3, 2005.

Fassin, Didier, Humanitarian Reason: A Moral History of the Present, Berkeley and Los Angeles, University of California Press, 2012.

Gündogdu, Ayten, Rightlessness in an Age of Rights, Hannah Arendt and the Contemporary Struggles of Migrants, Oxford: Oxford University Press, 2015.

Henkin, Louis, The Age of Rights, New York: Columbia University Press, 1990.

Kapartziani, Chryssoula, Papathanasiou, Katerini, “The Refugee Crisis as a European Democratic Crisis”, Globalism: Journal of Culture, Politics and Innovation, 2016.

Kostakopoulou, Dora, “European Union Citizenship: Writing the Future”, European Law Journal, Vol. 13, No 5, pp. 623-646, September 2007.

Lacroix, Justine, “Is European Citizenship feasible?”, La vie des idées, 2010.

Lefort, Claude, “Human Rights and Welfare State”, Democracy and Political Theory, Cambridge, Uk, Polity Press, 1988.

Soysal, Yasemin Nuhoglu, Limits of Citizenship: Migrants and Postnational Membership in Europe, Chicago: University of Chicago, 1994.

Tassin, Etienne, « L’Europe cosmopolitique et la citoyenneté du monde », Raison publique n° 7, October 2007.

Venturi, Denise, “The Grand Chamber’s Ruling in Khlaifia and Others v. Italy: One Step Forward, One Step Back?”, Strasbourg Observers, January 2017.

The Politics of Victimhood in Human Rights Violations: The Case of the Erased Residents of Slovenia

The article analyses the political practice of human rights in the case of the erased residents of Slovenia. The term “Erased” refers to the 25,671 individuals, ethnically mainly Serbs, Croats, Bosnians, Macedonians, Montenegrins and Roma, who were unlawfully erased from the Register of Permanent Residents of Slovenia by the government after the break-up of the Socialist Federal Republic of Yugoslavia in 1992. The Erased were Yugoslav citizens who either did not apply for Slovenian citizenship or whose application was denied in the process of Slovenian state building. At that point, they were formally given the possibility to apply for a permanent residency permit, but in reality the newly adopted Aliens Act did not enable them to maintain their residential status. Hence, many of them became irregular foreigners and lost the political, social and economic rights they had once enjoyed.

The erasure was committed in secret and from 1992 to 1999 the general public was unaware about this event. It was only in 1999 after several unsuccessful legal complaints filed by the Erased that the Constitutional Court declared Article 81 of the Aliens Act unconstitutional and revealed the crime in its entirety. Paralysed by the futile political process of human rights reconciliation, eleven individuals filed a complaint against the Republic of Slovenia at the European Court of Human Rights in July 2006, which reached its final judgement in the case of Kurić and others vs. Republic of Slovenia (2012) and held unanimously that there had been a violation of the 8th, 13th and 14th Articles of the European Convention on Human Rights. It took altogether twenty-one years for the political process of human rights redress to be concluded by establishing a compensation scheme for the Erased in 2013.

Close observation of the case of the Erased over the last decade has prompted significant questions about how human rights actually work in practice. Sadly, this case alludes to the fact that when faced with a situation wherein human rights are at risk, those responsible may not take immediate action nor offer the response needed to abolish the elements of human rights violation and abuse. This casts doubt on the efficiency of human rights, for if these rights which are supposed to represent the minimum standard of dignified life can be ignored for so long and with such particular lightness, even after the violation had been already legally established, we must then question and expose the factors which obstruct their implementation and diminish their potential for the individual and humanity.

This paper offers an analysis of the human rights practice in the case of the Erased focusing in particular on the political construction of their victimhood. By adopting the standpoint of anthropology of human rights, the article contextualizes the erasure and demonstrates how universal human rights were vernacularized (Engle Merry 2006), appropriated (Speed 2006, 2008) and reinterpreted within the Slovenian political setting in order to align with the values of the local community and the rules flowing from the existing political and legal order. The article begins with a brief introduction into the main ideas of the anthropology of human rights and continues by charting the context of the erasure. This is followed by an examination of the significance of legal residence in relation to human rights implementation. Thereafter I introduce the process through which the Erased became recognized as victims of a human rights violation and thus human right-bearing subjects. Finally, I examine the criteria for dividing “true” and “false” victims of the erasure revealing how human rights and victimhood construction operate within a political setting. In this manner, I expose elements of human rights discourse that are not seen as an obvious part but nevertheless a play major role when putting rights into practice.

An Anthropological Approach to Human Rights Practice

Human rights can be considered separately from the political structures by which they were formed and beyond the situations in which they are practised. If considered in a vacuum of legal documents, conventions and declarations regardless of their implementations, we note that human rights law generates a figure of rights built upon the human as its main subject and basic principles such as universality (Donnely 2003) human dignity (Carrozze 2013; Klein and Kretzmer 2002; Kateb 2011), human integrity (Rodley 2014) and equality (Clifford 2013; Moeckli, 2014). Human rights are often understood as legal categories in the instrumentalist sense as a tool for protection against the arbitrary power of the state, especially within the idea that the power of the state is not unlimited, that each individual has some autonomy and rights with which no authority can interfere (Osiatynski 2009: 1; Donnelly 2003).

Stemming from this, we can assert that human rights law constitutes a kind of culture in the sense that the discourse on rights is defined by particular characteristics—for example, a way of speaking, thinking, a construction of the self and sociality (Covan, Dembour and Wilson 2001; Riles 2006). Human rights law, however, is only one part of human rights articulations in a nearly endless array of human rights practices. Although I take human rights to be those rights enshrined in international human rights law, I also recognize the significance of the wider social and historical context which led to the emergence of human rights and their current practices. Therefore, I tend to rely on Goodale’s (2009: 378) description of rights as “a phrase that captures the constellations of philosophical, practical and phenomenological dimensions through which universal rights, rights believed to be entailed by common human nature, are enacted, debated, practised, violated, envisioned, and experienced”. This formulation is in line with anthropologists such as Cowan, Dembour and Wilson, (2001), Riles (2006) and Engle Merry (2006), and points to the position that human rights culture is best understood as a discourse with its own logic of operation, its own possibilities and limitations, which is not limited to law but also reflects and contributes to the understanding of perceptions about who we are, and what our social ideals and cultural values are.

In adopting an anthropological view of human rights it is important to recognize two relevant approaches that broaden the above position. The first approach is that of the ethnography of human rights, which examines how the global culture of human rights is subject to transformation by adopting and adjusting to the existing social values, power relations, and powerful structures, when used at the micro-level in a particular socio-cultural context (Cowan, Dembour and Wilson 2001; Engle Merry 2006, 2009; Goodale 2006, 2007, 2009) giving it a specific character that may depart from the official framework of universal human rights. At the heart of the focus here is the “translation” of the human rights principles into local situations by integrating local concerns into the interpretation and implementation of human rights. In line with Speed (2008) and her term “local appropriations”, and with Engle Merry (2006) and her concept of “vernacularization” of human rights, special emphasis is put on examining the processes of justification and actualization of human rights within the context of local settings and the never-ending negotiations between agency, culture, and power.

The second approach – critical anthropology of human rights – is complementary to ethnography, but tends to reflect critically on the concepts of society, culture, and human rights beyond their manifest declarative level to discover the power relations which reside within the human rights framework itself (Goodale 2009). Human rights law often operates with categories that at a first glance may appear to be self-evident and unproblematic. In this sense, recognition of the political element of the human rights regime is essential; as observed by Žižek, human rights as a supposedly “non” or “pre-political” phenomenon demonstrate “that every naturalization of some partial content as “non-political‘’ is a political gesture par excellence” (Žižek 2005: 125). Such an approach builds upon establishing a critical distance to human rights law in order to examine the political dimensions and power relations that reside within and reproduce a political world order that may finally not be entirely in line with the principles of human rights.

The category of a victim of a human rights violation is undoubtedly one place where a myriad of political dimensions and power relations intersect. If we take a closer look at how the figure of a victim is articulated in practice, either in international law or local contexts, we soon realize that victimhood is far from being clear-cut and unambiguous. Instead it points to the very issue of power relations by raising significant questions such as who counts as a victim of a human rights violation, what are the elements of the criterion for establishing victimhood, who determines the human rights redress and what constitutes the legitimacy of a human rights claim.

An anthropological approach to the question of victimhood construction draws attention to examining how political tensions which appear during the process are navigated in different ways. In this paper, I will demonstrate that the notion of territorial attachment, political loyalty and compliance with the legal order, readily entering the process of victimhood constitution and operating as an important element of interpretation and implementation of human rights despite having little or nothing to do with the idea of human rights as such. Following the standpoint of anthropology this should not surprise us, for if victimhood construction takes place in political discourse – the prime place for exhibiting nationalist rhetoric, pride, and self-glorification (van Dijk 1990) – it is expected that through the process of vernacularization, the values of human rights will be entangled with the values of the local political setting.

The theories of human rights which take humanity as their base obviously aim to create a connection of essentialism where it does not exist. We must agree with Foucault on his view that throughout history men have never ceased to construct themselves and their subjectivities in multiple series that never end and can “never bring us in the presence of something that would be “man.”” (Foucault 2002: 276). Human rights, as they exist in international law are rights constructed as a result of the knowledge and power relations of contemporary society and not something that exist beyond or independent of that knowledge and power. Victimhood is, in the same vein, a social construct, consisting of views, opinions, perceptions and social practices which define and demonstrate our understanding of humanity. The anthropological approach to victimhood construction is therefore not about examining the process of applying the language enshrined in international legal documents as a one-way process with an aim to resolve the cases of human rights violations. An analytical look beyond the essentialism offered by the rationality of human rights on the declarative level is required. Consequently, the task of analysing victimhood within human rights can therefore not be setting the interpretation to a level showing primarily how things should be – although this cannot be entirely avoided – but mainly to exposing how things are and why.

 

 

A Contextualization of the Erasure

The erasure from the register of permanent residents of the Republic of Slovenia in 1992 befell citizens of other republics of the former Yugoslavia who had not applied for Slovenian citizenship, whose application for citizenship had not been accepted by officials at the administrative units, and for those whose application for citizenship was rejected. Among the Erased, there were 20,311 adults and 5,360 minors, of whom 14,775 were men and 10,896 were women. They represent a heterogeneous group of people; some were internal immigrants from other republics of the former Yugoslavia who held common Yugoslav citizenship, while others were born and raised in Slovenia. Most had spent a significant part of their lives there and had developed personal, social, cultural, linguistic and economic bonds in their private and family lives.

The story of the erasure begins in the early 1990s’, after the separation from Yugoslavia.  One of the first documents of Slovene statehood, the Statement of Good Intent (1990), guaranteed, “the members of all other nations and nationalities their right to an overall cultural and linguistic development, and to all those who have their permanent residence in Slovenia that they can obtain Slovene citizenship, if they so desire”. On 25th June 1991, the Republic of Slovenia formally declared its independence and adopted legislation related to internal affairs, citizenship and sovereignty. In line with Article 40 of the Citizenship Act (1991) individuals who held citizenship from other republics of former Yugoslavia and who had permanent residency in the Republic of Slovenia were given the possibility to apply for Slovenian citizenship without additional requirements related to length of stay, language proficiency and material status or similar[1]. Under this article, approximately 171,000 out of 200,000 citizens of other Yugoslavian republics gained Slovenian citizenship (Zorn 2009).

Although the Slovenian government proved to be liberal in this regard, it had expressed exclusivist tendencies toward permanent residents of Slovenia from other Yugoslavian republics who did not wish to, could not, or were not eligible to obtain Slovenian citizenship. These individuals came under the rules of the Aliens Act (1991). They reasonably expected to be able to maintain their permanent residency status, however, Article 81 of the Aliens Act stipulated that a permanent residence permit could be granted if a person had been living in Slovenia for three years on the basis of a temporary residence permit. The decisive fact was that no such permits were needed for citizens of other republics of former Yugoslavia before the break-up of the country. This bureaucratic banality was used as an argument for taking away their status as permanent residents.

But the legal void of the Aliens Act was neither a mistake nor an unfortunate coincidence. The transcript of the 19th session of the then Assembly of the Republic of Slovenia from 1991 demonstrates that parliamentarians were conscious of the difficulties foreigners would face if the Aliens Act was passed without preliminary provisions for Yugoslav citizens which allowed them to keep their permanent residency. Member of Parliament, Metka Mencin, proposed an amendment to article 81 of the Aliens Act which could have prevented the erasure by suggesting that:

Citizens of the SFRY who are citizens of other republics and have not filed a request for citizenship of the Republic of Slovenia, but who do have a registered permanent residence or are employed in the Republic of Slovenia on the day this law takes effect, will be issued a permanent residence permit in the Republic of Slovenia.

(transcript of 19th Session of the Socio-political Chamber, 3rd June 1991).

On the 3rd of June 1991, they turned down the amendment to article 81 of the Aliens Act by two votes. On the 27th of February 1992, Minister of the Interior, Igor Bavčar, dispatched the Official Communication to local administrative units, instructing them to start “clearing up the records” and managing the status of all citizens of other republics of former Yugoslavia who did not apply for citizenship in the Republic of Slovenia by the stipulated deadline (MI, 1992a). Even though the Aliens Act did not provide a legal basis for such a procedure, 25,671 individuals were erased from the Register of Permanent Residents of Slovenia. These persons became known as the “Erased.” Some were deported, some left Slovenia of their own accord, others stayed on the basis of temporary work permits, while others had no choice but to live without legal residency status or even found themselves stateless. Three months after the erasure Bavčar, acquainted with the difficulties the Erased had been subjected to, argued in another Official Communication to the government that the previously existing rights of the individuals who had not applied for Slovenian citizenship or whose application had been rejected, needed to be ignored (MI, 1992b) as his standpoint was that they needed to be treated as foreigners entering Slovenia for the first time.

 

 

Legal Residence as a Condition of Human Rights

The Erased experienced a number of adverse consequences, such as the destruction of identity documents, loss of employment and health insurance, the impossibility of renewing identity documents or driving licences, difficulties in claiming pension rights, etc. Those who did not meet the conditions necessary to obtain a temporary residence permit were simply unable to overcome the legal vacuum caused by their irregular residency status and the consequences it had upon their lives. When attempting to arrange their status at the administrative units they faced innumerable formal and informal obstacles (see Lipovec Čebron and Zorn 2011). The situation in local courts was similar; between 1992 and 1999 the courts operated as a subsidiary of the state’s executive power. Even the Supreme Court, which accepted several complaints on behalf of the Erased, did not respond to the restrictive measures of the Ministry of the Interior but instead uncritically followed the laws which were clearly unfair (Kogovešek Šalamon 2011). The question arising in regard to this situation is why it was so difficult, even impossible, for the Erased to overcome the situation of absolute rightlessness (Arendt 1976) which rendered them superfluous and “out of place”.

The case of the Erased demonstrates that the legal residence given to an individual by a sovereign state on the basis of its sovereign right to decide who shall be admitted to its territory proves to be an important condition for full access to human rights. The status of (ir)regular foreigner remains as one of the most far-reaching “common-sense” inclusions/exclusions even when human rights are at stake. Kesby (2012: 108) notes that irregular or undocumented migration status is absent from the prohibited grounds of discrimination, which can be understood as a deliberate exclusion of irregular migrants from the position of the right-bearing subject. If a person does not hold permission to be in the territory of the state, the state is not deemed responsible for protecting and ensuring his or her rights. This is a stance which is clearly evident, for instance, in the International Covenant on Civil and Political Rights – that the obligation of the state is to respect and ensure rights to individuals who reside lawfully within its territory or are subject to its jurisdiction. The relation between the state’s responsibility to protect and the lawfulness of the individuals’ residence thus puts legal residence as the very source of a human rights claim, the source of the paramount of all human rights i.e. the “right to have rights” (Arendt 1976).

Legal residence in this sense is a crucial element in the practice of making and unmaking an individual a bearer of human rights. Many contemporary authors have been successful in exposing the complex relationships between states, sovereignty and human rights law (e.g. Arendt 1976; Kesby 2012; Agamben 2008; Ranciere 2004; Gündoğdu 2012, 2015; Vincent 2010) and have explained the difficulties arising from this as well as the consequences for the universal recognition of human rights. Although, as Gündoğdu (2015) notes, individuals within contemporary human rights law are not completely robbed of their legal personhood when ejected from the “the old trinity of state-people-territory,” – as notably believed by Arendt (1976) – they are nevertheless often deprived of their rights by the normalization of deportation of irregular foreigners, the illegalization of residency, or other forms of state population control. Kesby (2012) and Bosniak (2006) assert that the illegalization of residency constitutes internal borders so that even if a person may be physically present, they are to be socially and legally absent through the denial of key rights or formal and practical impediments.

As seen in the case of the Erased, legal residency provides a person with a legal personality, which is key to having the right to action and speech. Noted by Arendt (1976: 296) “the fundamental deprivation of human rights is manifested first and foremost in the deprivation of a place in the world which makes opinions significant and actions effective.” This is precisely what happened to the Erased – their lack of a legal residence permits in practice stripped away the significance of their arguments, which were considered void and worthless, having neither legitimacy nor importance. Hence the paradox, despite the fact that the human rights of the Erased were violated, they could not be recognized as victims of a violation as their claims were not considered legitimate. So it is that the construction of victimhood is inherently linked to the question regarding who has the right of a “speaking subject” (Foucault 1982)[2], and consequently to the concept of who is considered to be “in place” and who is “out of place” (Kesby 2012: 7). In other words, irregular residency constitutes a position of profound victimlessness, which can only be overcome by “gaining a voice” by the legalization of resident status. This means that a victim of human right violations can only be constituted in line with the rules of the recognition of the victim, as set out by sovereign nation states.

The exclusion of the Erased through the illegalization of their resident status points to the boundaries of humanity and human rights, which in this case overlap the boundaries of the state. Although human rights are often explained as moral entitlements people possess by virtue of common humanity, we can note here that having access to human rights is not linked to the question of being human. The idea of ​​humanity providing the right to have rights or the right of every individual to be a member of humanity is not provided by humanity itself. As the case of the Erased shows, the idea of humanity is beyond the current realm of international law, as the latter still operates on the basis of the decision-making of sovereign states (Arendt 2003: 379). The concept of universal all-encompassing humanity is thus under question as it is evident that humanity in reality is not sealed from the exclusionary practices which nation-states employ (Kesby 2012: 103).

It appears that the right of a nation-state to control the admission and residence of non-citizens rests above the humanity postulated in international human rights law. This works not only through border control and restricted access state territory but also through the construction of the illegality of persons who are territorially present, but nevertheless expelled from humanity (ibid). Having the right to stay in the territory of a country functions in this case as a vital entry point that endows the individual with “the right to have rights” and “the right to be heard” (Arendt 1976) and thus become the subject of human rights in a full sense. In the case of the Erased it can be seen that the principle of territorial sovereignty based on controlling the admission of foreigners to the territory of the state, justified as legitimate acts of sovereign statehood, ended up creating divisions within humanity itself.

 

 

Becoming a Right-Bearing Subject

In the two decades following the erasure, the Erased were represented in the media and especially in political discourse as disloyal and potentially dangerous; they were repeatedly represented as criminals, calculating and speculative individuals, national enemies and aggressors, even if there were no objective reasons for such a demonization, as they were mainly ordinary people living Slovenia. In the years following the erasure, journalists who wrote about the Erased in Mladina, a traditionally liberal weekly newspaper, were often confronted by questions from their editors, “Why do we need to write about this at all?”, “After all, they are the aggressors”, “Do you think this will increase the number of our copies?” (Mekina 2007). Devaluation and dehumanization excluded the Erased from political life, left them without the rights of a speaking subject and pushed them into a “bare life” (Agamben 1998) which additionally diminished the legitimacy of their human rights struggle.

Agamben (2008) recognized that the political order of the nation-state does not offer an autonomous space that would allow for the existence of a “mere” human; according to him, refugees or undocumented migrants can only gain full access to human rights either by deportation or naturalization i.e. inclusion into the polity of a state. Similarly, the claims of the Erased could only be recognized as legitimate by reintegration into the political community; it was 1999, seven years after the erasure, when the Constitutional Court established the unconstitutionality of Article 81 of the Aliens Act (CC 1999). This had a significant impact in that it provided legitimacy to the claims of the Erased, although only by including them into the national polity according to the rules of the nation-state – not as mere humans –could they enforce their human right claims. In its decision, the court ordered the government to resolve the inconsistency within a period of six months and demanded the abolition of unconstitutional conditions taking into account ‘the status that the Erased should have had but due to the improper legislation did not have’ (ibid).

As the court explained in its judgement, Article 81 of the Aliens Act was unconstitutional because it did not specify the conditions for obtaining a permanent residence permit after the expiration of the deadline for citizens of other republics of the former Yugoslavia. The Constitutional Court’s Decision had a decisive impact on transforming the Erased into rights-bearing subjects: (1) it revealed the actual extent of the erasure; (2) it created a potential core for developing a new subjectivity of the Erased as victims of human rights violations; (3) it formed a legitimate position from which the Erased could claim their rights; (4) it brought the issue to the political and parliamentarian agenda. The decision was the first document that clearly articulated the Erased from the perspective of constitutionality and also had a binding request to eliminate the injustice. What is more, it discontinued the silence and the political ignorance and in this respect succeeded in exceeding the impacts of the totalitarian elements of power previously shown in the Slovenian legal system (Kogovšek Šalamon 2011: 177).

Despite the ruling, the human rights struggle was far from over. Most politicians indeed emphasized their distance toward human rights violations, not only because these are generally against the law but also because this would most likely result in constructing their negative self-presentation. What they failed to do, however, was to adopt genuine human rights positions. What could be traced in the case of the Erased was that in general, politicians acted humanely and in a tolerant manner towards those among the Erased whom they perceived as victims of rights violations, but at the same time strongly defended the national interests indicating how conflicting ideologies of cosmopolitan humanitarianism and nationalism intertwine. The political debates that followed demonstrated the classical ‘firm, but fair’ position (van Dijk 1993), where the fairness served as a cosmopolitan disguise intended to avoid impressions or accusations of nationalism, whereas the firmness was the actual aim being pursued from their standpoint. Within the political setting of the human rights redress of the Erased, we were actually faced with simultaneous support toward human rights values, on the one hand, and the denial of human rights claims to a particular group within the Erased on the other hand.

In this respect, it is not important to establish whether individual politicians were xenophobic and intolerant toward the Erased, but to focus on the systematic flaws, elements in the processes, activities, and cognitions involved in the construction of victimhood. For instance, politicians applied various means to adjust the values of human rights, discredited the human rights holders and justified the crime of erasure with relativization. As highlighted by Jalušič (2008: 97), dealing with mass human rights violation involves several approaches and one of them, and also the most problematic one, is to explain the violent crime “through “contextualization” and their apologia – sometimes even in the form of an open justification of what has been done which can serve to legitimize further exclusion”. Indeed, there was an obvious attempt to represent the erasure as an administrative injustice which happened unintentionally during the state-building process, which also implied the reluctance of Slovenian political actors to determine objective or subjective responsibility for the violation of human rights.

Another way of dealing with mass violation of human rights, Jalušič notes (ibid), involves denial and silence about the criminal past and attempts to exculpate oneself using negative propaganda, powerlessness, and nationalist politicians as a pretext. As typified by Cohen (2007) in relation to other atrocities and human suffering, the case of the Erased likewise exhibited various states of denial such as outright denial (the erasure did not happen), discrediting (they were aggressors, criminals, and speculators), renaming (they were not erased but transferred from one register to another), and justification (they did not wish to reside in Slovenia anyhow). In this way, the politicians simultaneously denied the meaning of the erasure, claimed that it happened independently of their will and justified it in nationalistic terms. Politicians invented a particular discourse in relation to the Erased that was highly coded, full of references to political loyalty, territorial attachments, right and wrong, good and bad, and the responsibility to protect the state against its opponents.

The shift in recognition of the Erased as victims of a human rights violation has been to a large extent a result of the Constitutional Court’s decision from 1999 as well the critical approach of academics and legal experts, however, it turned out that the fundamental problem of the Erased was that the issue was being solved on the political and not the legal level. The political process of the recognition of the human rights violation following the constitutional court decision indeed demonstrated how much human rights are not just a matter of law, but are to a great extent dependent on the will found within a political setting where the battle to determine the final interpretation of human rights takes place. To grasp this troublesome development, we can examine the key milestones in the political process of human rights reconciliation.

In line with the constitutional court decision from 1999, the first political initiative to resolve the status of the Erased occurred the same year when the government filed the Act Regulating the Legal Status of Citizens of Former Yugoslavia Living in the Republic of Slovenia (the Status Regulation Act 1999). In 2000, the Constitutional Court ruled that this act was unconstitutional as it lay down stricter conditions for obtaining a permanent residence than those laid down in the Aliens Act of 1991 (CC 2000) in 2003, when it declared the unconstitutionality of the Status Regulation Act because it recognized the Erased’s residence only from the date of the re-application for residency and not from the date of erasure (CC 2003). The constitutional ruling returned the Erased to the parliamentary agenda debates in 2003 when the government attempted to pass two acts. One was adopted but later rejected in 2004 in a public referendum, while the legislative procedure of the other was suspended in 2004 due to a right-wing government. Under the rule of this government, i.e. from 2004 to 2008, all procedures for granting residence permits to the Erased on the basis of the decision of the Constitutional Court in 2003 was suspended. After the change of government in 2008, the Status Regulation Act from 1999 was finally amended and adopted in 2010. In 2012 the European Court of Human Rights (2012) delivered its final judgement in the case of Kurić and others vs. Republic of Slovenia. The Grand Chamber unanimously held that there had been a violation of the 8th, 13th and 14th Articles of the European Convention on Human Rights and ordered the Slovenian government to set up an ad hoc domestic compensation scheme within one year of the final judgement. Following a six-month delay, the Slovenian government passed The Act on Restitution of Damage for Persons who were erased from the Register of Permanent Population (the Restitution Act 2013).

As evident from the brief sketch, becoming a rights-bearing subject may not be achieved immediately after the legitimacy of the rights claim is constituted in legal terms. It points to the fact that the violation of a right, even after it has been recognized by the court, does not provide an immediate solution to the problem. The whole process indicates that human rights are not simply a question of legal recognition, but more than that, a political decision of those in power to decide about whom human rights belong to and under which conditions. This brings us immediately to the question of victimhood construction along with an examination of who counts as a victim of a human rights violation and what constitutes the legitimacy of the human rights claim. As we shall see in the next section, the political setting and its approach to human rights violations may be deemed particularly ineffective, since it does not necessarily stem from human rights law and human dignity but builds upon a particular political interest justified outside human rights discourse.

 

 

Construction of Victimhood of the Human Rights Violation

The Constitutional Court as well as the European Court of Human Rights recognized the erasure per se as a human rights violation, essentially applying to all individuals affected. The Slovenian government, however, did not recognize every erased person as a victim. On the contrary, during the reconciliation process, members of parliament were constantly “sifting the wheat from the chaff” by establishing differences between the “true” and the “false” victims of the erasure. Their debates had been generally rather technical in the sense that they discussed what the precise rules were, the conditions and other measures which needed to be applied so that only the “most loyal” among the Erased could obtain a residence permit and essentially, to cut down the number of individuals eligible to claim compensation for suffering and loss of rights. At the same time, and what is especially worrying, the basic notions of human rights discourse such as human dignity and human equality as well as the inalienability and universality of the rights of the Erased were more or less absent from the process of victimhood construction. Instead the political construction of victimhood was intersected with references to political loyalty, legal compliance and territorial attachment.

Victimhood through Territorial Attachment

In the case of the Erased, territorial attachment turned out to be one of the prime features of the process of the victimhood construction. Article 1 of the Status Regulation Act determined that the Erased “who were registered as permanent residents in the territory of the Republic of Slovenia on 23 December 1990 and are actually resident in the Republic of Slovenia, and foreigners who were actually resident in the Republic of Slovenia on 25 June 1991 and have been living there continuously ever since, shall be issued with a permanent residence permit” (The Status Regulation Act, Article 1 2010).

The Act also stipulated that the condition of actual and uninterrupted residence was likewise met if the person left the Republic of Slovenia as a consequence of erasure from the Register of Permanent Residents and if the person left the Republic of Slovenia because he or she could not acquire a residence permit in the Republic of Slovenia owing to non-fulfilment of the relevant conditions and the application for a permit was rejected or dismissed or the procedure was terminated (The Status Regulation Act, Article 1č 2010).

Following this, an erased person who had left Slovenia and had not attempted to return did not meet the conditions for obtaining their lost permanent residence and consequently could not be counted as a victim of a human rights violation. Such a condition, entirely incompatible with the principle of universal human rights, created a differentiation within the victims of the erasure. The logic behind this is that the human rights of individuals who had emigrated from Slovenia after the erasure were not violated since they did not wish to live in Slovenia anyhow, which is evident from the following transcript:

Everybody who expressed some kind of interest to live in Slovenia in the period of ten years after they left Slovenia and those who regardless of the erasure remained living in Slovenia have the opportunity to arrange their status as permanent residents

[…] I believe the selection of rightful claimants has been thoughtfully determined. […] we have individualized our approach so that the eligibility of claimants depends on the fact that they have tried to arrange residential status, that is to say, they have expressed interest. Those who have not expressed any interest, those who have left Slovenia and have not attempted to return and to live in Slovenia, those have not suffered a loss and it would be absurd to give them financial compensation.

(Transcript of 17th parliamentary session, 24 September 2013)

Such an argument is not only inconsistent with the basic orientations of human rights law but also shows a lack of understanding and knowledge about the life situations of the Erased; a considerable part of those in question had not actually and uninterruptedly resided in Slovenia because in many cases, this was impossible owing to the erasure (Kogovšek Šalamon, 2007). From the view of the erasure itself, it is absolutely absurd to require from the Erased that they return and live in Slovenia as it was precisely because they were erased that they did not meet the conditions to do so. In other words, by this condition the government actually required them to do something against the law, i.e. to return to Slovenia illegally (Krivic 2013). By this measure the government denied the Erased who had left Slovenia their right to be heard before any action concerning the violation of their rights was taken. In this manner, they were stripped of the possibility to explain their individual circumstances as well as the reasons for leaving Slovenia as if the actual impact of the erasure on their lives was a priori irrelevant.

In the same way the compensation scheme, which was set by the government by adopting The Restitution Act in accordance with the final judgement of the Grand Chamber of European Court of Human Rights, admitted compensation exclusively to individuals who had put at least some effort into settling their status in Slovenia, or in the words of a member of parliament:

Speculators, meaning those who have left the country and never cared, never wished to come back to Slovenian territory, cannot just appear and demand some kind of compensation. This [the compensation] is meant for the people who made an effort, who endeavoured to arrange their statuses.

(Transcript of 17th parliamentary session, 24 September 2013)

On the basis of this argument approximately 13,000 of the erased individuals who had left Slovenia were not eligible to regain their status or be indemnified for the loss and damages inflicted upon them by the erasure. From the human rights point of view, however, whether an individual has lived in Slovenia, left, or attempted to return is of no significance. It does not change the fact that by erasing them from the register of permanent residence the state had robbed these people of their human rights. The members of parliament now tried to put forward an interpretation which translated as the rights of those who had left Slovenia was not really violated as they wanted to leave anyhow.

Such an explanation truly modifies and denies the real meaning of the erasure and consequently also modifies the meaning of human rights. The fact remains that the erasure inflicted a violation of human rights no matter if the Erased left Slovenia afterwards and had not attempted to return. But the case of the Erased demonstrates what happened after the violation of rights, that in this case, the individual place of residence has the ability to confirm or deny the violation itself. What one must understand in this regard is that territorial residence here does not merely operate as geographical location, but primarily as an objective signifier of belonging, attachment and membership that at the same time serves to indicate loyalty to the values of the Slovene nation state. For this reason, introducing the territorial dimension into victimhood construction, which appeared as a result of the power of the nationalist discourse, must be understood in the sense that the territorial identity of the Erased was also considered a way of expressing loyalty and defining group membership. In the last instance, this means that the victims of the erasure could only be the ones who proved to be those most loyal through territorial attachment.

Territory has another important political aspect from the view of human rights victimhood construction. As Elden (2013) convincingly proposes, territory cannot be understood as a part of a land in the simple political-economic sense of rights of use, appropriation, and possession attached to a place. Territory can be thought of as the extension of the state’s power or as a mechanism though which state power is exercised. The practice of human rights is clearly not particularly successful in diminishing the idea of the territory in regard to exercising state power. To be in the territory is to be subject to sovereignty and to be subject to sovereignty is to be recognized as entitled to human rights protection. One is subject to sovereignty while in the territory and not beyond (Elden 2013: 329). In other words, the state legitimizes itself as the supreme legal institution in charge of the protection of all inhabitants in its territory, regardless of their nationality, which gives rise to problematic distinctions between those in the territory and those who are outside it, even when it comes to the question of who is entitled to rights (Gündoğdu 2015: 43). In the same vein, Kesby (2012: 110) highlights that the territorial border is distinctive in that it eclipses the question of one’s humanity in that it bestows human rights obligations exclusively to those under its jurisdiction in a territorial sense, so that only those physically present in the territory trigger a state obligation to protect their human rights. The result is that the Erased who left Slovenia and never tried to return did not appear to the state as a ‘human’ to whom human rights obligations were owed, despite the fact that they were unlawfully erased from the Register of permanent residents and as a result of that erasure, their human rights were violated.

 

 

Victimhood through Deviancy and Imprisonment

Another problematic condition for settling the status of the Erased was the provision of the Status Regulation Acts determining that a residency permit could not be granted to anyone among the Erased who had been convicted of an offence resulting in imprisonment of at least three years or sentenced to more than one term of imprisonment with a total length of more than five years (Status Regulation Act, Article 3 2010). There is no official data regarding the numbers of the Erased who would be denied permanent residency on the basis of the above provisions, but it can be assumed that the number is very low or even zero. For this reason in particular it is thought-provoking that such a provision exists despite the fact that in reality there were not many cases, if any, to which they could have been referring. The restrictions on human rights protection on the ground of deviancy are indeed illustrative of the connotative content of the victim figure; my concern here, however, is also related to the role of international law in overcoming exclusions on the basis of deviancy.

What is most important is this regard is that international human rights law does not interfere with the right of the sovereign state to control the entry of aliens into its territory nor to set the rules of their residence and expulsion. The role of human rights law in this regard remains tenuous as it considers the matters of citizenship and the residence of foreigners to be within domestic jurisdictions insofar as they are consistent with international conventions and customary international law (Ersboll 2007: 253) i.e. as long as the state action is not arbitrary, discriminatory or has statelessness as a result. It has to be noted that the same reasons – imprisonment of three years or a total imprisonment length of more than five years – were listed in the Aliens Act from 1991 as the reason for possible renouncing permanent residence to a foreigner (Aliens Act, article 24 1991); from this aspect it cannot be claimed that the provisions related to the Erased are arbitrary or discriminatory.

The implicit message of the exclusion of prisoners from the victimhood construction of the Erased therefore is that they could lose their permanent residency in any case no matter if the violation of their human rights was recognized. That may be true, however, to deny erasure as a violation of human rights in the case of former prisoners actually means to deny the true meaning of the erasure – as an act of violation of human rights law per se. Such provisions namely make a statement that among the Erased, some do not deserve to be recognized as victims of a human rights violation and that their human dignity and equality may perhaps be disregarded when it comes to recognition of their right claims. The problem lies in that it is not the state that appears to be a “savage” who violated human rights, but the former prisoners who appear to be “savages” not worthy enough to have their rights fully respected.

We may turn to the question of why is it reasonable to restrict the human rights of prisoners, if these are the rights that everybody is supposed to be entitled to on the basis of being human, and why such discrimination against prisoners is not deemed discrimination but as a reasonable restriction? The main point of the criticism here is the automatic denial of human rights victimhood on the basis of deviancy alone. Recognition of human rights is not a privilege and also a convicted prisoner remains the bearer of human rights (Kesby 2012: 72). Within this relationship and these exclusions, we find a profound expression of the existing values of modern societies we come across when dealing with prisoners. Kesby (2012: 71) illustratively depicts prisoners as society’s outcasts, forcing us to reflect whether human rights are a privilege to be denied to those who are deviant and undeserving and thus not worthy of being placed inside a political community. Although everybody is considered a bearer of human rights which do not depend upon individual moral worthiness, the fact of being imprisoned, especially in the case of a grave offence, reveals “the “natural man” beneath, says Kebsy (2012: 78) by lifting the veil of formal equality stemming from humanity, the distinctions between deviant and law-abiding individuals come to the front.

The distinction between victims of human rights violations justified in terms of deviancy is used to define the preferred human rights bearers and to outcast those deemed unworthy. In the case of the Erased this can be seen as the arrogance of power over morality, especially from the point of view that it was the state which broke the law and violated human rights in the first place, and that the same state then denied the recognition of those human rights violations and once more acted against the idea of the universal human rights. The civilizing mission comes to the fore here, which strips away the full humanity and dignity of prisoners who are depicted as “savages” and defined as undesired, unwelcome, and dangerous and as such clearly impossible to be considered victims of human rights violations as they are themselves represented as the negation of humanity.

 

 

Victimhood through Political Loyalty

The case of the Erased revealed another significant element within the process of victimhood construction, i.e. political loyalty. The Status Regulation Act determined that the status of a permanent resident could not be returned to individuals who had been convicted of an offence directed against the Republic of Slovenia, irrespective of where the crime was committed (Status Regulation Act 2010). While loyalty does not appear to be in any way a factor of respecting human rights – as already explained human rights are not something that is either earned or can be lost – here it played a crucial role in the construction of victimhood in the case of the Erased. Although the provisions related to the actions against the sovereignty of Slovenia have no real significance in actual life, since no individuals were convicted of such criminal acts, the process of victimhood construction nevertheless shows what society generally understands as legitimate reasons for denying one’s human rights.

The Status Regulation Act namely denied access to permanent residency to an erased person if he or she was, “after 25 June 1991, convicted of an offence under the 15th or 16th chapter of the Criminal Code of SFRY, directed against the Republic of Slovenia […], irrespective of where the crime was committed; […] or convicted of an offence under the 33rd, 34th or 35th chapter of the Criminal Code of the Republic of Slovenia” (Status Regulation Act, 2010). The 33rd, 34th  and 35th chapters of the Criminal Code, include acts such as damage to commercial buildings, means of transport and equipment and public facilities in order to undermine the constitutional regime or security of the Republic of Slovenia; invasion of the territory of the Republic of Slovenia for infringement of its territorial integrity; collection of confidential military, economic or official information for foreign countries; failure to respond to the call to  fulfil defence duties when an emergency or state of war had been declared; careless handling of weapons, which can lead to damage or destruction; recruitment for foreign armies, etc. (Criminal Code 2008). I do not claim that the recognition of human rights has no restrictions whatsoever nor that freedom of action should not be limited by the human rights of other people, but what stems from the above list is that human rights are to be denied to those who have committed an act against the sovereignty of a particular state. The irony of this relationship is that human rights do not operate as a protection of the individual against the state but as protection of the state against the individuals.

The exclusion of the Erased as legitimate human rights bearers was thus targeted at those individuals who did not prove to be “loyal” residents, did not share “our” values and acted against the Republic of Slovenia. Moreover, denying human rights based on the above described arguments essentially means denying human rights on the basis of a person’s political opinion, especially in the context of the Yugoslavian break-up and related political confrontations. Such exclusion therefore casts doubt on the recognition of political opinion as a category within the prohibited grounds of discrimination, particularly if one’s political opinion opposes the sovereignty of a particular state. A contradiction of this kind can never be part of human rights and morality; denying human rights to political opponents does not contribute to greater respect for human rights, as Douzinas (2000: 141) says “in these circumstances, the righteous commit the crime they set out to prevent” i.e. they violate human rights in the name of preventing the human rights violation. But the approach applying the distinctions in regard to political loyalty of the Erased was, in fact, the only acceptable approach for parliamentarians. Recognition of all the Erased, including the “disloyal” ones, as victims of human rights violations would in their opinion mean high treason and betrayal of the Slovene national community as well as denial of the values of Slovene statehood and independence. The members of the parliament were essentially saying that:

The individuals, who suffered injustice due to the loss of resident status, these [injustices] will be abolished […] in a selective style and holds guarantees that those, who acted against the interests of the Republic of Slovenia in an unlawful mode and threaten the highest values, acknowledged by the civilized world, those will not be able to regain the status under provisions of this [Status Regulation] act.

 (Transcript of 30th parliamentary session, 28 October 2003)

We do not deny the right to enforce his or her rights deriving from Constitutional Court Decision, of course, selectively, in a manner, which will clearly examine what these people did in 1991, when the country bled/…/all of them who operated against the country, this [recognition of their rights] needs to be prevented.

 (Transcript of 2nd parliamentary session, 29 January 2009)

The discourse was evidently not merely ideological but messianic: ultimately, the exclusion of disloyal individuals from the victimhood of the erasure was a defence of the “civilized world”. Such exclusion may be one of the most “common sense” exclusions throughout the history of the modern nation-state; however, it is incompatible with the idea of human rights. By using such an approach, politicians acted against the universality and inalienability of human rights and the equality of the Erased. Instead, the legal provisions subordinated their just claims to the operation of the state, exemplifying the dominant logic of the state’s supremacy. Such conditions, useful in terms of distinguishing between loyal and disloyal individuals, point to the weakness of the idea of human rights, especially because they apply a selective approach where the recognition of human rights is subordinated to the logic of the state. Humanity as the basis for inalienable rights was replaced by a community of people loyal to the legal system and the sovereign power of the state. An analogy may be drawn from Kesby’s (2012) explanation in regard to disenfranchised prisoners that individuals may be denied rights because they have assaulted the special relationship of rights and duties which exist between a community and its citizens. This illustrates the dominant logic according to which the sovereignty of the state operates contrary to the universality of human rights, thereby showing that human rights, which are supposed to be the cornerstone of the rule of law, are actually protected only when a person proves to be a good citizen.

 

 

Conclusion

Human rights are thought to be the rights protecting individuals against the excess power of the modern nation state, obviously pointing to the fact that one of the problems in this regard is the nation-state itself. Yet, paradoxically, observes Vincent (2010: 106), if human rights are to be successful they require states to bring them into practice and enforce them. What can be noticed in relation to this is precisely that the dependency of human rights upon the state, i.e. that the implementation of human rights is so intensely intertwined within the state which provides the space and infrastructure for their implementation, that at times human rights operate through bypassing the considerations related to humanity, dignity and equality, turning to notions that have little to do with human rights, such as territorial attachment, political loyalty and compliance with legal order.

The case of the Erased proved the reason the State functions as a resilient argument for adjusting the values of international law, modifying the claims for legitimacy and altering the morality of human rights. By focusing less on the equality of individuals and more on the State as an end in its own right, politicians covertly implied that individuals matter only insofar that they prove to be somehow relevant for a reinforcement of state power. In this sense, the political discourse of victimhood construction manifestly contributed to the particularity of the state-centrism prevailing over human rights and confirmed the political logic of human rights discourses, which are often expressed in exclusionary practices that deny full participation to those who fail to support the interests of the dominant group (Evans 2005).

As shown at the beginning of the paper, the construction of victimhood is inherently linked to the question of a right-bearing subject and consequently to the conceptions of who is considered to be “in place” and who is “out of place” (Kesby 2012: 7). A nation-state constitutes a mode of exclusion manifesting through a differentiation between legal and irregular residents which is at the same time also an exclusion from the position of a legitimate human rights bearer. Irregular residency constitutes a position of complete victimlessness, which can only be overcome through legalization of resident status. It is equally important to note the contradiction between human rights recognition and practices of exclusions in the process of victimhood construction which are justified by diminishing the moral capacities of individuals who were subjected to a violation. Although human rights are not rights which are to be “deserved with proper behaviour”, the case of the Erased proves that this might be the case in practice.

Mutua (2001: 228-9) explains that the typical image of a victim in human rights discourse is founded on a helpless and innocent subject, abused by the state, its agents or pursuant to an offensive cultural or political practice. Distinguishing characteristics of the victim are powerlessness and inability to defend oneself against the state. The victims are usually represented as nameless, desperate and pitiful individuals, many of them poor and uneducated. This image corresponds with the part of the Erased who lived in Slovenia and tried to retrieve their permanent residence but were unsuccessful, who suffered due to their life without rights, who were violently separated from their families or who for many years hopelessly wished to return to Slovenia. In this manner victimhood could not be recognized to anyone who proved to be convicted, imprisoned or who had been deemed politically disloyal or who had acted against the sovereignty of the Republic of Slovenia, as such a person could not be acknowledged as a helpless suffering subject but instead seen as an immoral individual. From this aspect, it turns out that the construction of victimhood in the case of the Erased ironically demonstrates not the protection of the individual against the state but the protection of the state against the individuals.

The idea of the nation-state overruled the idea of universal human rights which was evident in the fact that members of parliament adopted legislation that stipulated criteria for selectively admitting violations of international law. The problematic provisions of the Status Regulation Act and The Restitution Act set the criteria for dividing legitimate and illegitimate victims of the erasure and thus lost the opportunity to develop a genuine discourse on human rights by introducing the dichotomy between the “real” and “false” victims of the erasure. The construction of the victim in the case of the Erased did not stem from the basis of human nature or the dignity human equality. As seen, the victimhood evolved around the notions linked to the relationship between the individual and the state, especially to a person’s obedience to the state’s legal and political order, avoidance of deviancy, loyalty and territorial attachment.

This whole process of victimhood construction demonstrates how parameters which are in fact antagonistic to the idea of human rights play an important role in the implementation and interpretation of the right on a micro-level. Local concerns shaped and determined the ways in which universal rights were implemented, resisted and transformed, while the specificities of particular struggles demonstrated the tangible limitations of the global human rights law in a local context. The discrepancies between universality of human rights and the selectivity of the nationalist state-centric logic revealed the fact that even if everybody should enjoy the same human rights, the case of the Erased demonstrates that in contemporary societies, particular groups or individuals are viewed as victims only with great difficulty. Even those parliamentarians who argued for protection of the human rights of the Erased did not recognize the difficulties and inconsistencies that the selective approach brings in terms of the principle of universality. What is particularly intriguing is that such an implementation of human rights does not undermine the concept of those rights itself but transforms their interpretation by introducing the values of state sovereignty into the human rights idea.

Such a mode is problematic as it employs the power of the state-centric discourse to modify the meaning of human rights according to its own values; it turns and transforms the ‘universal’ into the ‘particular’, without denying the universality of human rights so that in the end, the final impression is that justice has been done and human rights have been fully respected. This approach, hidden behind the mask of human rights as a discourse that follows the norms and values of human rights law, leaves little or no space for an effective political human rights struggle. The conclusion then brings us to the question whether the victims of the erasure in fact reclaimed their human rights – as they actually were given rights which could not be justified on the basis of their humanity, equality and dignity. In this sense Arendt (1979: 293) appears to be particularly illuminative in her thought-provoking statement that “although everyone seems to agree that the plight of these people consists precisely in their loss of the Rights of Man, no one seems to know which rights they lost when they lost these human rights.”

 

References

Act on Restitution of Damage for Persons who were erased from the Register of Permanent Population (the Restitution Act). 2013. Official Gazette RS No.99/2013. 29 November 2013, Ljubljana. https://www.uradni-list.si/glasilo-uradni-list-rs/vsebina/2013-01-3547/zakon-o-povracilu-skode-osebam-ki-so-bile-izbrisane-iz-registra-stalnega-prebivalstva-zpsoirsp

Act Regulating the Legal Status of Citizens of Former Yugoslavia Living in the Republic of Slovenia. (the Status Regulation Act) 2010. Official Gazette RS No.76/2010. 22 September 2010, Ljubljana. www.uradni-list.si/1/objava.jsp?sop=2010-01-4131

Agamben, Giorgio. 2008. »Beyond Human Rights«. V: Open 15: Social Engineering. SKOR 2008/ No. 15. Can Society Be Engineered In the 21st Century?, 90–95. Rotterdam: nai010 publishers.

Arendt, Hannah. 1976. Origins of Totalitarianism, Cleveland and New York:  Meridian Books.

Bosniak, Linda. 2006. The Citizen and the Alien: Dilemmas of Contemporary Membership. Princeton: Princeton University Press.

Carozza, Paolo G. 2013. »Human dignity«. V: The Oxford Handbook of International Human Rights Law, ur. Dinah Shelton, 345–359. Oxford: Oxford University Press.

Citizenship Act of Republic of Slovenia. 1991. Official Gazette RS No. 1/91-I, June 25th. www.uradni-list.si/glasilo-uradni-list-rs/vsebina/1991-01-0008?sop=1991-01-0008

Clifford, Jarlath. 2013. »Equality«. V: The Oxford Handbook of International Human Rights Law, ur. Dinah Shelton, 420–445. Oxford: Oxford University Press.

Cohen, Stanley. 2007. States of Denial: Knowing about Atrocities and Suffering. Cambridge: Polity in Malden: Blackwell Publishers

Constitutional Court. 1999. Constitutional Court Decision No. U-I-284/94. Ljubljana. http://odlocitve.us-rs.si/sl/odlocitev/US19309

Constitutional Court. 2000. Constitutional Court Decision No. U-I-295/99. Ljubljana. http://odlocitve.us-rs.si/sl/odlocitev/US20132

Constitutional Court. 2003. Constitutional Court Decision No. U-I-246/02. Ljubljana. http://odlocitve.us-rs.si/sl/odlocitev/US22240

Cowan, Jane K., Marie-Bénédicte Dembour in Richard A. Wilson, ur. 2001. Culture and Rights: Anthropological Perspectives. Cambridge: Cambridge University Press.

Criminal Code. 2008. Official Gazette No 55/2008. 28 May 2008, Ljubljana. https://www.uradni-list.si/glasilo-uradni-list-rs/vsebina/2008-01-2296/kazenski-zakonik-kz-1

Donnelly, Jack. 2003. Universal Human Rights in Theory and Practice. Ithaca in London: Cornell University Press.

Douzinas, Costas. 2000. The End of Human Rights: Critical Legal Thought at the Turn of the Century. Oxford in Portland (Oregon): Hart Publishing.

EHCR. 2012. The case of Kurić and others vs Republic of Slovenia. Strasbourg. http://hudoc.echr.coe.int/eng#{“fulltext”:[“Kurić”],”documentcollectionid2″:[“GRANDCHAMBER”,”CHAMBER”],”itemid”:[“001-111634”]}

Elden, Stuart. 2013. The Birth of Territory. Chicago in London: Chicago University Press.

Engle Merry, Sally. 2006. Human Rights and Gender Violence: Translating Transnational Law into Local Justice. Chicago in London: The University of Chicago Press.

Engle Merry, Sally. 2009. »Legal Transplants and Cultural Translation: Making Human Rights in the Vernacular«. V: Human Rights: An Anthropological Reader, ur. Mark Goodale, 265–301 Malden (MA): Wiley-Blackwell.

Ersbøll, Eva. 2007. »The Right to a Nationality and the European Convention on Human Right«. V: Book cover Human Rights in Turmoil: Facing Threats, Consolidating Achievements, ur. Stephanie Lagoutte, Hans-Otto Sano in Peter Scharff Smith, 249–270. Leiden in Boston: Martinus Nijhoff Publisher.

Evans, Tony. 2005. The Politics of Human Rights: A Global Perspective. London: Pluto Press.

Foucault, Michel. 2002. Power. London: Penguin.

Geertz, Clifford.  1983. Local Knowledge: Further Essays in Interpretive Anthropology. New York,. NY: Basic Books.

Goodale, Mark. 2006. »Toward a Critical Anthropology of Human Rights«. Current Anthropology, 47 (3): 485–511.

Goodale, Mark. 2007. »Introduction: Locating Rights, Envisioning Law Between the Global and the Local«. V: The Practice of Human Rights: Tracking Law Between the Global and the Local, ur. Mark Goodale in Sally Engle Merry, 1–38. Cambridge: Cambridge University Press.

Goodale, Mark. 2009. »Toward a Critical Anthropology of Human Rights«. V: Human Rights: An Anthropological Reader ur. Mark Goodale, 1–19. Chichester in Malden: Wiley-Blackwell.

Gündoğdu, Ayten. 2012. »Potentialities of Human Rights: Agamben and the Narrative of Fated Necessity«. Contemporary Political Theory, 11 (l): 2–22.

Gündoğdu, Ayten. 2015. Rightlessness in an Age of Rights: Hannah Arendt and the Contemporary Struggles of Migrants. Oxford: oxford University Press.

Jalušič, Vlasta. 2007. “Renouncing the Political Capacities: Organized Innocence and Erasure of Citizenship Responsibility in Post-Yugoslav Nation-state Building.” Journal for the Critique of Science, 35(226): 95–114.

Kateb, George. 2011. Human Dignity. Cambridge (Mass.) in London: The Belknap Press of Harvard University Press.

Kesby, Alison. 2012. The Right to Have Right: Citizenship, Humanity, and International Law. Oxford: Oxford University Press.

Kogovšek Šalamon, Neža. 2007. “The Erasure: The Proposal of a Constitutional Law as the Negation of the Rule of Law.” Journal for the Critique of Science, 35(226): 196–220.

Kogovšek Šalamon, Neža. 2011. “Pravni vidiki izbrisa iz registra stalnega prebivalstva.” [Legal Aspects of Erasure from the Register of Permanent Residents]. Ph.D. dissertation, Univerza v Ljubljani.

Kretzmer, David and Eckart Klein, ur. 2002. The Concept of Human Dignity in Human Rights Discourse. The Hague in London: Kluwer Law International.

Krivic, M. 2013. Comment on the Restitution Act. http.//www.dz-rs.si (Accessed 1 December 2013)

Lipovec Čebron, Uršula and Jelka Zorn. 2011. Zgodbe Izbrisanih Prebivalcev [The Life-Stories of the Erased Residents]. Ljubljana: Založba Sanje.

Mekina, Igor. 2007. “The Erasure of the Erasure.” Journal for the Critique of Science, 35(226): 174–189.

Ministry of Internal Affairs. 1992a. Official Communication: Implementation of the Aliens Act—Instructions. Ljubljana. www.mirovni-institut.si/izbrisani/wp-content/uploads/2012/02/depesa_05_1992_02_27.pdf

Ministry of Internal Affairs. 1992b. Official Communication: Open Questions in regard to Aliens Act Implementation. Ljubljana. www.mirovni-institut.si/izbrisani/wp-content/uploads/2012/02/depesa_06_1992_06_04.pdf

Moeckli, Daniel. 2014. »Equality and non-discrimination«. V: International Human Rights Law, ur. Daniel Moeckli, Sangeeta Shah in Sandesh Sivakumaran, 157–173. New York: Oxford University Press.

Mutua, Makau W. 2001. »Savages, Victims, and Saviors: The Metaphor of Human Rights«. Harvard International Law Journal, 42 (1): 2019–245.

Osiatyński, Wiktor. 2009. Human Rights and Their Limits. Cambridge in New York: Cambridge University Press.

Rancière, Jacques. 2004. »Who Is the Subject of the Rights of Man?«. The South Atlantic Quarterly, 103 (2/3): 297–310.

Riles, Annelise. 2006. »Anthropology, Human Rights, and Legal Knowledge: Culture in the Iron Cage«. American Anthropologist, 108 (1): 52–65.

Rodley, Nigel S. 2014. »Integrity of the person«. V: International Human Rights Law, ur. Daniel Moeckli, Sangeeta Shah in Sandesh Sivakumaran, 174–195. New York: Oxford University Press.

Speed, Shannon. 2006. »At the Crossroads of Human Rights and Anthropology: Toward a Critically Engaged Activist Research«. American Anthropologist, 108 (1): 66–76.

Speed, Shannon. 2009. »Gendered Intersections: Collective and Individual Rights in Indigenous Women’s Experience«. V: Human Rights: An Anthropological Reader, ur. Mark Goodale, 229–245. Malden (Mass.): Wiley-Blackwell.

Teun A. Van Dijk, Elite Discourse and Racism (1993).

The Aliens Act. 1991. Official Gazzete RS No 1/1991. 5 June 1991, Ljubljana.  Http://www.uradni-list.si/1/objava.jsp?urlid=19911&stevilka=9.

Transcript of 19th Session of the Socio-political Chamber, 3rd June. 1991 https://www.dz-rs.si/wps/portal/Home/deloDZ/seje/evidenca?mandat=0&type=sz&uid=236CE1425EF8B79DC1257C01003FD28D

Transcript of 30th parliamentary session, 28 October. 2003. Http://www.dz-rs.si/wps/portal/Home/deloDZ/seje/evidenca?mandat=III&type=sz&uid=1CBDB2DB111B8DE9C1256DD500387EE6 .

Transcript of 2nd parliamentary session, 29 January. 2009. Https://www.dz-rs.si/wps/portal/Home/deloDZ/seje/evidenca?mandat=V&type=sz&uid=F52C99CDF6B6BC1FC125755B003D6FF3.

Transcript of 17th parliamentary session, 24 September. 2013. Https://www.dz-rs.si/wps/portal/Home/deloDZ/seje/evidenca?mandat=VI&type=sz&uid=01F9F3D8497AFE00C1257C4600535D16.

Vincent, Andrew. 2010. The Politics of Human Rights. Oxford: Oxford University Press.

Zorn, Jelka. 2009. “A Case for Slovene Nationalism: Initial Citizenship Rules and the Erasure.” Nations and Nationalism, 15(2): 280–298.

Žižek, Slavoj. 2005. »Against Human Rights«. New Left Review 34, July–August: 115–131.

 

 

Endnotes


1 This provision was applicable to citizens of other Yugoslav republics (Serbs, Croatians, Macedonians, Bosnians, and Montenegrins) who held permanent residency in Slovenia on 23rd December 1990 i.e. the Plebiscite Day, when the people voted for an independent state.

2 Foucault (1982: 52) says in his lecture that “in society like ours, the procedure of exclusion are well known. […] We know quite well that we do not have the right to say everything, that we cannot speak of just anything in any circumstances whatever, and tht not everyone has the right to speak of anything whatever.

Humanity and Human Rights: The Contours of International Law

There are compelling reasons for being content in living at a time when the basic requirements of humanity and human rights have been recognized by the ratification of most of the international human rights and international humanitarian law instruments. Clearly, the existence of disparity between the recognized norms and the actual behavior of states cannot be denied. There are also states that are not willing to subscribe to what is widely accepted or political actors that have interests in reversing the gains made this far. Despite all this, no one can doubt that a mile-stone has been reached in recognizing the values of humanity and human rights. The credit for this goes to those that have struggled for these goals, including through their writings and struggles and the conducive, post-World War II political atmosphere which stimulated the inter-state agreements.

Giving credit to the role played by the past thinkers does not necessarily mean that there is no longer any need for intellectual debate relating to this matter. If the requirements of human rights and humanity are to be critically appraised, it will be necessary to examine closely the thoughts of scholars, past and present, on this subject. Then and only then will we be able to fully recognize the inter-play between humanity and human rights as perceived in the past and present and to appreciate the direction international law has taken or should take.

This article sheds light on the path which international law took in responding to the requirement of human rights and humanitarianism (as dictated by humanity). This is done by reflecting on international human rights law and international humanitarian law. If these laws were developed to protect the dignity and worth of the human being, as is claimed, why make a distinction between them? Are there areas of convergence between them?  Before attempting to respond to these and other questions it will be necessary to clarify not only what is understood by human rights and humanity, but also who the human being is in the first place.

Human being, humanity and human rights – conceptual issues

Human being: Dictionaries define ‘human being’ typically as a member of the Homo sapiens species that is “distinguished from other animals by superior mental development, power of articulate speech and upright stance.”[1] Since there are species in the animal kingdom with a capacity to reason and communicate, it important to look for other distinguishing attributes which merit protecting our unique qualities, values, rights, freedoms. Are we social? Are dignity, empathy, sensibilities and sympathy for our fellow beings part of our nature? If not, what do people mean when they say ‘this person lacks humanity’? While there is no problem in identifying the human being by the looks, appreciating our nature has always been a matter of controversy.

Thomas Hobbes, for instance, believed that the human being was not social, e.g., like ants or bees, or a peaceful and compassionate being. Rather, he took him/her as individualistic, competitive, envious, hateful and belligerent. The mere fact that human beings were equipped with the power of reasoning led Hobbes into believing that this quality leads them to think that they are wiser than others and to use it for manipulation and hurting one another. According to him, this nature and inclinations is responsible for the perpetual state of conflict in which we find ourselves in, a situation which Hobbes described as ‘war of all against all’. This was why he called for the surrendering of ‘natural rights’ in favor of tyrannical rule based on social contract.[2]

Immanuel Kant dismissed this negative description of the human nature since it ignored our obvious social nature and our many positive inclinations and attributes which enabled us to evolve by forming stable communities. As Kant saw it, the human being is a rational and moral being, one who complies with duties, whether based on the needs of complying with external laws or self-constraint which limits the freedoms of action using “practical reason, (i.e., according to humanity in his own person)”.[3] This uniqueness entitles the human being to exercise their ‘natural’ rights and freedoms based on the recognition of “the dignity of humanity in every other man.”[4]

If humans are a self-consumed evil species constantly at war with one another, as Hobbes claimed, then humanity cannot exist or cannot be anything more than a mere collection of hostile human beings inhabiting the world. If, on the other hand, we are rational moral beings, as Kant believed, then our shared rationality, morality and sense of solidarity should make us feel as ‘one’, very much like members of ‘a family’.

Humanity is defined in Dictionary.com in at least three different ways: i. “all human beings collectively; the human race; humankind”, ii. “(T)he quality or condition of being human; human nature” and, iii. “(T)he quality of being humane; kindness; benevolence.”[5] The first definition avoids specifying the essential elements in humanity by merely considering it as the equivalent to human beings, collectively. We see this approach taken in some international instruments, e.g., in article 1 of the 1966 Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, which considers outer space as “the province of all mankind”, or article 1 of UN General Assembly resolution 43/53 of 1988 which regards climate change as “a common concern of mankind”. The second definition also side-tracks what humanity is by merely pointing out the root word it came from – i.e., from human.

More specific and giving is the third definition which refers to kindness, benevolence, and being humane as examples of the virtues of humanity. David Hume elaborates further by adding more virtues, including “generosity, gratitude, moderation, tenderness, friendship”.[6] According to him, these “are not only the same in all human creatures, and produce the same approbation or censure; but they also comprehend all human creatures”.[7] Why the receivers get such gestures is not hard to understand, since this is explainable by the simple fact that there must have been a need for it, irrespective of whether that need has arisen from situations or incidents caused by the forces of nature, by others, by accident or by the fault of the receivers. More interesting is what motivates or compels the givers to share the pains or problems of the receivers in that predicament. It makes one wonder whether one can feel or suffer from the conditions or problems faced by others, and if so why and how? Michel Ager answered this question in the following manner:

“Like the god Janus, humanity has a double-sided identity, which, however, does not express any alterity (no “other” is allowed in this bounded and total representation). Its double is only the reflection of a wounded, suffering, or dying humanity. It becomes the “absolute victim,” who is nothing else or other than absolute and essentialized humanity when it is suffering. This figure of humanity, both unique and split—absolute humanity vs. absolute victim—dominates contemporary thought: the representation of a world generally treated as a totality, with no representation of difference, is the foundation of our present as a humanitarian age, a world of nameless victims whose identities do not differ from the common humanity…” [8]

To say that sensibilities, generosity, gratitude, empathy and tenderness are examples of the virtues of humanity, does not necessarily mean that human beings cannot display the opposite characteristics such as to be evil, cruel, insensitive and inhuman. If this is the case, how can we still say that there is humanity? The defendants of humanity seek to resolve this dilemma by underscoring the point that who we are by nature should not be confused by how we sometimes behave in defiance of our nature. Christian theologians, for instance, explain this puzzle by reference to the Bible (Genesis 1:26-28) which considers us as created in the image of God, who is merciful, considerate and good. However, in reality we choose to commit sins (or because of the sins which we inherit) and behave in evil ways. Charles Sherlock explained this in his book on The Doctrine of Humanity: Contours of Christian Theology in this way:

“Whatever theory of the transmission of sin and its origin we hold, the reality is that everyone who reads this book is a sinner. Each of us needs constantly to turn to Christ, admit our need for forgiveness and healing, renounce sin and evil, and so live gladly the life which the Holy Spirit brings in us. Only in that way can the old humanity be killed off, and the fruits of the Spirit flourish (cf. Col. 3:1-17). Our prime concern is not with the transmission of sin, but (with) the humanity in Christ.”[9]

Most Liberals, libertarians and primordialists are at odds with the emphasis that is placed on the selective positive inclinations of human beings used to validate or glamorize the existence of humanity. Libertarians, such as Ayn Rand, have no problem with selfishness. What they regard strange is selflessness, altruism and sacrificing for others. ”Altruism holds death as its ultimate goal and standard of value”, wrote Rand in her publication entitled The Virtue of Selfishness, “and it is logical that renunciation, resignation, self-denial, and every other form of suffering, including self-destruction, are the virtues it advocates.”[10] According to her, “if civilization is to survive, it is the altruistic morality that men have to reject.”[11]

Richard Rorty, a liberal American professor, questioned the arguments used by Immanuel Kant in defense of humanity and human rights based on morality and rationality because people choose frequently to act in irrational and immoral ways to protect their interests. He provides numerous examples of this, such as how the Nazis tried to exterminate Jews in the 1930s, how Moslems were treated by Serbs during the Balkan wars, how most men see women and why “(F)or most white people, until very recently, most black people did not so count”[12] According to Rorty, these are all examples that show that people do not always want to see others, outside their own groups, as humans, let alone to feel their pains or share their sufferings. This was not always because of ignorance or misunderstanding but the determination to treat them in that way or as sub-human. As he put it:

“Resentful young Nazi toughs ere quite aware that many Jews were clever and learned, but this only added to the pleasure they took in beating such Jews. … For everything turns on who counts as a fellow human being, as a rational agent in the only relevant sense – the sense in which rational agency is synonymous with membership in our moral community.[13]

Primordialists reason in similar ways in dismissing the existence of humanity, as a concept that embraces all human beings, by attaching heavy weight to membership in ethnicity. As they see it, members of ethnic groups reject those outside their own groups, because of competition, fear of the unknown or past conflicts.[14] Loyalty to one’s own group itself hinders the development of broader feelings of solidarity, sensibilities and generosity which are generated by humanity. That we are social is not, strictly speaking, in doubt, since one cannot imagine ethnic conflict without ethnic bonds and loyalty. If this is the case, one can wonder why members of one ethnic group migrate to places inhabited by other ethnic groups or to foreign countries. Why do families from one ethnic group adopt children from other groups? Why do millions of students study abroad or tourists spend so much money to see and enjoy alien cultural places?

Liberals and libertarians are more consistent in their approach when belittling humanity because for them groups do not exist. What matters for them is the individual. Our social attributes and interests are neglected for the sake of maximizing individual rights and freedoms. But the question remains that the individual cannot develop intellectually, emotionally and socially outside social interaction and enrichment. How else did we end up using a common language, culture or professing a common religion? If groups do not exist, why do states invoke ‘public’ morality or security to restrict individual rights or freedoms, and why are families given the power to choose the schools for their children? Why is solitary confinement used as a means of punishment? Why are we attracted to foreign cultures and values? Simply walking on a street in a foreign country and seeing a stranger fall, bleed or cry can arouse feelings within us of sympathy or concern as if our own life was endangered. What one stranger does on the street or TV can make us laugh, weep, stimulated or depressed simply because we are social.

If we were not social, we would not see so many people and organizations dedicating their time, energy, resources and services to help ‘others’, out of love, compassion and altruistic motives. For most of these people and humanitarian groups even the age, gender, race, ethnicity, nationality or ideological orientation of the receivers do not matter. Nor do they care whether the cause they are responding to is natural calamities (earthquakes, floods, drought, hurricanes, etc.), or man-made problems (conflicts, internal displacement or refugee exodus) or the fault of the receivers. The generosity is extended out of “a vision of humanity as unique”.[15]

The presence of special bonds between human beings is now recognized in important international instruments and by international institutions. The Rome Statute of the International Criminal Court, for instance, justified the needs for the establishment of this Court by underscoring the point “that all peoples are united by common bonds, their cultures pieced together in a shared heritage, and … (the presence of fear) that this delicate mosaic may be shattered at any time”.[16] UNESCO justifies the protection of the ‘common heritage of mankind’ by designating historically significant cultural heritages (e.g., ancient monuments, pyramids, ruins and architectural complexes) as  belonging to all of us although we have not seen them or will ever see them or have a clear knowledge of  how we were shaped by them.

Rights. When used as an adjective the word right means correct, just, righteous, true, fair, etc.), If it is used as a noun, it can describe entitlement, privilege, title, guarantee, power, autonomy, freedom or benefits. The right-holder can be a human being, a legal person (corporation, labour union, religious or cultural entity, etc.), a political ruler (a king or a president), an institution (e.g., a parliament or a supreme court), or even animals. Human rights are only some of the rights that are recognized and enforced in the political world. Some of these rights may even be inhumane or inhuman. There were legal rights that were enforced for centuries, permitting people to purchase, sell, inherit and exploit fellow beings as slaves. Even today, we find countries who use laws entitling a grown-up man to marry a child or several minor girls, or to benefit from the misery of desperate prostitutes or trafficked migrant workers. However, morally bankrupt such legal rights might be, they remain to be valid in the countries that recognize them by law to regulate social relations, order and stability

Human rights simply state that humans have rights as if the source of the right is “humanity, human nature, being a person or human being’.[17] The discourse on human rights has complex, controversial and ideologically charged sides.[18] Why people have aspired or struggled for rights and freedoms in the past or present is not difficult to understand, since this is linked to what has prevented them from enjoying the desired rights and freedoms: e.g., to end oppression and discrimination. People do not struggle for no apparent reason. This is why “human rights do not define a unitary, universal human condition but designate rather a field of heterogeneous practices that help to constitute the array of subject moments or subject effects that comprise citizens and sovereigns.”[19] It is no wonder, therefore, that the narratives of human rights have changed over the years and why we find them framed differently during the French Revolution, the American Civil War, the post-World War II or in the Cold War periods.[20] Whichever way rights might have been framed in the minds of scholars or those who struggled for their rights, in the real political world they have always been political. It is no wonder, therefore, that even after the popular political struggles have emerged victorious, what was achieved were sometimes later denied or diluted by subsequent political actors. A case in point are the British Magna Carta, the U.S. Bill of Rights and the French Declaration of the Rights of Man and the Citizen.

In 1215, the rebellious English barons secured from their autocratic, King John, concessions acknowledging rights for the ’free men’ of his realm. These included the right not to be arbitrarily “seized or stripped of his rights or possessions, or outlawed or exiled” and not to be denied justice (clause 63). These rights and protections were not extended to the majority of “unfree peasants known as ‘villains’, who could seek justice only through the courts of their own lords.”[21] The pledges that were given were disregarded by subsequent kings who repealed most of the clauses contained in this Great Charter, making the struggle for rights open-ended.

The 1776 American Revolution was justified to put an end to the oppressive and tyrannical rule of the British King and to affirm the self-evident truths “that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness” and that governments should derive “their just powers from the consent of the governed.”[22] Shortly thereafter a Bill of Rights was adopted in 1791 to put this vision into practice, by guaranteeing the rights to the freedom of speech, assembly, religion, privacy, fair and speedy trial, to petition the government and the protection from ‘cruel and unusual punishment’. However, these ‘unalienable’, God-given rights were not interpreted as being applicable, at the time, to women or blacks or the indigenous populations. They were politically framed rights that were secured for the white men, whose rights to privacy included owning blacks – for nearly one more century. Both George Washington and Thomas Jefferson owned slaves. Even after the institution of slavery was legally abolished in 1865, blacks (and American Indians) continued to be excluded from political participation until their uprising in the 1960s.

The much-celebrated 1789 French Declaration of the Rights of Man and of the Citizen too was really not intended to make all human beings the holders of full rights, although its title suggests that non-citizens also have right. As Susan Maslan noted:

“The inclusion of man, as opposed to, say, Frenchman, as a subject of rights within the Declaration is what distinguishes it so radically from the American Bill of Rights, a document that makes no claim to apply beyond the confines of its national authority. It is a wonderful sort of irony, one that demands serious reflection, that the invention of the Rights of Man played and continues to play such a predominant role in the creation and perpetuation of French national identity.”[23]

This Declaration affirms the principle of equality and the “natural and imprescriptible rights of man”. But the beneficiary remained to be the politically situated French man.[24] French women (the ‘passive citizens’) continued to be excluded from political participation, and the problem of slavery in the French colonies was left out. This was why the betrayed slaves started to rebel. French women too protested, which was why the Declaration of the Rights of Women and the Female Citizens which was published in 1791, and still fell on deaf ears.

The international regime of human rights considers human rights as being applicable to all human beings without distinction. As stated by the Office of the United Nations High Commissioner for Human Rights:

“Human rights are rights inherent to all human beings, whatever our nationality, place of residence, sex, national or ethnic origin, colour, religion, language, or any other status.… Universal human rights are often expressed and guaranteed by law, in the forms of treaties…and other sources of international law. International human rights law lays down obligations of Governments to act in certain ways or to refrain from certain acts, in order to promote and protect human rights and fundamental freedoms of individuals or groups.[25]

This fits Donnelly’s definition which makes human rights applicable to everyone ”simply because one is a human being.”[26] It makes the language of human rights, if not human rights themselves, (essentially)… universal” because the members of the international community claim to respect its core value: i.e., human dignity.[27]

The contours of international humanitarian law: evolution and features

Humanitarian values and rules were developed out of the awareness of our social nature and the determination to protect values of broader concerns based on our sensibility and feeling of solidarity. There are two movements of interest to mention, both aiming at alleviating human suffering, broadly speaking. They are the anti-slavery movement and the campaigns used to mobilize support for ending the cruel manner of conducting wars.

In her illuminating essay entitled “Humanity without Feathers”, Lynn Festa, highlights the background of the movement which led to the abolishment of slavery in Britain. The force behind this movement, she notes, was the sympathy and sensibility of people in England had to the sufferings of black slaves in the distant English colonies. “Inasmuch as sympathy involves experiencing another’s feelings (that is, feelings that are by definition not one’s own),” she wrote, “it breaks down the division of self and other”.[28] This scenario shows how the ’free’ white European come to the rescue of the enslaved African at the cost of the economic interests of the English slave master. The pains which the abolitionist felt appears to be personalized in that the black victims were ”marginalized by the fact that it is not the slave but the personification of ’humanity’ that bleeds and longs to vindicate her rights”.[29] Obviously, sentiments were not the only ’playbook’ used by the abolitionist, the writer notes, as ”calls for sympathetic feeling— then as now—were tempered and supplemented by appeals to reason, to policy, to interest, to principle, to faith.”[30] In his celebrated publication entitled The Social Contact Rousseau describes the ironies of slavery by noting that “(M)an is born free, and everywhere he is in chains. One man thinks himself the master of others, but remains more of a slave than they are.”[31]

The other example mentioned above to explain the movement defending humanity is that which led to the prohibition of the savage ways of conducting warfare. Some of the champions of this cause were not soldiers or people who lost loved ones in battle fields or those whose personal safety was directly or indirectly affected by wars. As in the case of the anti-slavery activists, their campaign was to rescue the victims whom they did not know personally and wherever they were. There was no question that those who were behind the development of rules prohibiting these kinds of cruelties shared the agonies of the victims as if they themselves had been victimized.

Perhaps the most famous scholar who laid the foundation for the emergence of humanitarian law was Hugo Grotius (1583–1645). Like other writers before him (such as Francisco de Vitoria and Alberico Gentili), Grotius was concerned about the dignity of human beings and about how wars were conducted. He was especially puzzled and annoyed by why “men rush to arms for slight causes, or no cause at all, and that when arms have once been taken up there is no longer any respect for law, divine or human; it is as if, in accordance with a general decree, frenzy had openly been let loose for the committing of all crimes”.[32] According to him, the kinds of cruel and inhumane behaviour that revealed itself during his time, when the Thirty-Years religious wars were raging, were irreconcilable with Natural Law. He took this law as valid because it was based on morality (rationality). It was natural because it was universally applicable to all human beings. His writings identified elaborate rules of conducts that should be followed by all states at all times, in connection with conflicts.

The efforts made by Grotius to mobilize wider support through his writings and travelling to different countries, inspired many others, like him, to be engaged in humanitarian work. Among these was Henry Dunant, who was awarded the first Nobel Prize, and the establishment of The Red Cross in 1863. In 1899 and 1907 two important international conferences were held in The Hague (Holland) on the conduct of warfare. These paved the way for the conclusion of the first and second conventions. The horrors of the First World War led states to appreciate the importance of broadening the scope of the existing humanitarian instruments, by adding the 1925 Geneva Protocol to these Hague prohibiting the use of certain weapons.

The establishment of the United Nations in 1945 speeded up the legal evolution of international humanitarian law. The UN Charter expressed concern over the “scourge of war, which twice in our lifetime has brought untold sorrow to mankind” (preamble para. 1), and considered the achievement of “international co-operation in solving international problems of “… humanitarian character, and … respect for human rights” (art. 1(3) as one of the purposes of this organization. The pursuit of these goals and the mandates given to its General Assembly to promote “the progressive development of international law and its codification” (art. 13) gradually led to the adoption and ratification of numerous conventions transforming humanitarian law qualitatively. Examples of these include the 1948 convention on the prevention and punishment of the crime of genocide, the four Geneva Conventions of 1949, the 1951 Refugee Convention, the 1954 Convention for the Protection of Cultural Property in the Event of Armed Conflict, the 1968 treaty on non-proliferation of nuclear weapons, the 1972 Biological Weapons Convention, the 1980 Convention on the use of certain weapons causing excessive injuries, the 1993 Chemical Weapons Convention, the 1997 Ottawa Convention on anti-personnel mines, and the 2008 convention on cluster munitions. The effort to galvanize support for banning weapons of mass destruction (by using biological, chemical, and nuclear weapons) deserves special attention. The refusal of states to abandon such weapons and the efforts which they continued to make to produce and stockpile these weapons continue to endanger mankind as a whole. In this sense one can say that humanity has never been threatened as it is now.

This aside, one can say that many of the international humanitarian law instruments that have been ratified have now clarified practices which should not be tolerated during conflicts. Some of them, e.g., the genocide convention, prohibit the commission of genocide even in times of peace, a prohibition which includes complicity, attempts and conspiracy to commit this crime. The refugee convention encourages states to protect those who face a fundamental fear of persecution. Other humanitarian rules mentioned in The Hague and the Geneva Conventions outlawed the use of weapons such as poison, chemicals and expanding bullets. Abusing prisoners, hostage-taking, rape, forced relocation and the destruction of civilian properties such as pillaging, destroying hospitals and heritage were also prohibited by the same conventions.

The establishment of the International Criminal Court represents another mile-stone in the defense of humanity, since it created a forum for prosecuting the violators of international humanitarian law. Prior to this, the prosecution of these kinds of international crimes was left to the UN. This was why the UN had to create special tribunals to prosecute those who committed international crimes during the conflicts in the former Yugoslavia, Rwanda, etc. By the end of last year, 124 states had ratified the statute of this Court, making that institution a widely recognized body for monitoring respect for international humanitarian law.

The preambles of the statute of the International Criminal Court recognize “that all peoples are united by common bonds, their cultures pieced together in a shared heritage”, and express the fear that exists “that this delicate mosaic may be shattered at any time.” It recalls, further, that during this century millions of children, women and men have been victims of unimaginable atrocities that deeply shock the conscience of humanity” and that henceforth “the most serious crimes of concern to the international community as a whole must not go unpunished”. This instrument defines and elaborates the kinds of acts or conducts that should not be tolerated, namely genocide, aggression, war crimes and crimes against humanity. Article 7 specifies the recognized crimes against humanity’ if they are “committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack”. They include extermination, enslavement, attacks directed in an organized way against any civilian population, deportation, torture, forced pregnancy, collective persecution, enforced disappearance. In short, this statue has codified the pre-existing rules of international human rights law by crystallizing what were vaguely formulated before.

International human rights law: legal evolution and features

Human rights emerged as universally applicable legal rights thanks to the efforts made by civil societies, humanitarian organizations, political activists, progressive writers and states as a response to the gross human suffering and destruction seen during the Second World War.  In the course of mobilizing the masses to defeat the Fascist and Nazi states militarily, the galvanized masses and political actors were compelled to question the totalitarian and racist values and ideologies promoted by the aggressive powers. Thus, what started out as a military campaign for self-defence ended up in questioning the very structure and ideologies of the Aggressive Powers. If the new international organization that was to be established after the military campaign was to be legitimate and durable, it had to usher in a new world order which was sensitive to human rights.  It was, therefore, not surprising that the UN Charter had to “reaffirm faith in fundamental human rights, in the dignity and worth of the human person” (preamble) and considered the promotion of “respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language, or religion” as one of its purposes, in article 1(3).

This was clearly a novel development for a world that had never had a truly universal organization, let alone one that was mandated to promote this goal. The achievement can even be perceived as revolutionary since the great majority of the member-states had poor records of respecting human rights and were not equipped with human rights sensitive laws and institutions. What pushed them in this direction was the memories of the Second World War and the determination to co-operate with the UN to achieve this goal as pledged under article 56 of the Charter.

Indeed, as it turned out, it did not prove to achieve broader international co-operation once attention was turned to developing the general standard settings when the first universal document was prepared (later known as the Universal Declaration of Human Rights). This instrument was adopted on 10 December 1948 with no opposition, though eight states abstained. A factor that explains this wider base of support could be that its provisions were broadly formulated. The obligations of states to respect the proclaimed rights and freedoms were also avoided. There was the recognition that this document was not intended to be legally binding since the UN General Assembly had no power to adopt legally binding instruments. As the last preamble of this document states, the whole point was to use it as “as a common standard of achievement for all peoples and all nations” so “that every individual and every organ of society… shall strive by teaching and education to promote respect for these rights and freedoms and by progressive measures, national and international, to secure their universal and effective recognition and observance”.

The Universal Declaration recognized that “All human beings are born free and equal in dignity and rights” (article 1) and that “Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion or social origin, property, birth or other status” (art. 2). It lists the different civil, political, economic, social and cultural rights that should be promoted for all without discrimination. Using this standard setting, the UN General Assembly adopted numerous other declarations and later legally binding conventions crystallizing the recognized rights and freedoms and state obligations flowing therefrom. In 1966, for instance, the two international covenants (one on civil and political rights, and another one for economic, social and cultural rights) were adopted and both entered into force in 1975. Thus, within three decades of the establishment of the UN mankind had secured two legally binding universal human rights instruments even if the number of states that ratified them was not that impressive at the time. In the years that followed, more conventions were adopted strengthening the rights of vulnerable groups such as children, women, persons with disabilities and migrant workers, and addressing problems connected with discrimination.

One of the important feature of this development is the individualization of the recognized rights and freedoms (i.e. as the rights of every person), very much as recognized in the West traditionally. The only exception was that this time around the scope of the rights was broadened to encompass political, economic, social and cultural rights and the right holders were to be all under the jurisdiction of the ratifying states. There were a few recognized rights with collective character. They include the rights of peoples to self-determination (mentioned in article 1 of the two covenants), and minority rights (mentioned in article 27 of the covenant on civil and political rights).The other feature of these international legal instruments is the manner in which the obligations of the ratifying states were elaborated and the mechanisms established for monitoring how these obligations are complied with by considering regular reports and the submission of petitions.

Except for the right to life, equality, thought and religion, and the prohibitions of torture, cruel, inhuman and degrading treatment or punishment, the great majority of the recognized human rights are subject to restriction. The prohibition that is mentioned in article 4 of the civil and political rights covenant prohibits derogation from the obligations to respect the above-mentioned rights. This suggests that some of these rights have an ‘absolute’ character. The validity of this legal presumption is in line with article 53 of the Vienna Convention on the Law of Treaties which recognizes the existence of a pre-emptory norm of general international law (Jus Cogens) – i.e. “a norm accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted”.

While the international community can take pride in having developed an international regime of human rights by adopting a long list of binding conventions, and developing the monitoring mechanisms, the actual record of states in complying with what is ratified is not that impressing. This monitoring system uses two separate paths to consider how states are complying with their human rights obligations. The treaty-based monitoring bodies examine the reports of states, and the communications that are sent by victims or state parties alleging human rights violations. The UN Charter-based monitoring bodies also consider the reports of states and those of the special rapporteurs, working groups and others. Using these and other sources of information, the UN Human Rights Council publishes its periodic reports on the human rights situation inside the member state. There are also other offices that play important roles in promoting or monitoring human rights. These include the High Commissioner for Human Rights, the High Commissioner for Refugees, UNICEF etc. Obviously, the effectiveness of these methods can be questioned and there is a long way to go when it comes to improving the system.

Humanitarian and human rights law: areas of intersection

The fact that international law has followed two distinct tracks when it comes to developing the rules related to international human rights and humanitarian law does not mean that there is no convergence between the two. Both derived their justifications from the need of protecting the dignity and worth of the human being. Both provide protection from slavery, forced labour, torture, cruel, inhuman and degrading treatment or punishment and rape. Both require humane treatment in prison. Humanitarianism looks at the broader context of what concerns us all and is guided by the values of humanity. These values arouse sympathy, empathy, love and compassion. The human rights laws are framed as the rights of the individual in the political context, rights which everyone is entitled to. Some of these rights are justiciable and even empowering (e.g., the rights to vote and take part in government).

Needless to say, the monitoring mechanisms of the international regime of human rights and international humanitarian law require improvement. There is a new doctrine which has been invoked lately to enable the international community to protect those that are exposed to serious international crimes: the international responsibility to protect (R2P). This doctrine has been invoked by the Security Council and the General Assembly (e.g., in the 2005 World Summit) in relation to serious conflicts and tragedies where states are seen to be either unable or unwilling to protect their own populations. This idea suggests that serious international crimes should be viewed as special concern to mankind as a whole. This fits the claim that there is humanity.

One can wonder, at the same time, whether the doctrine of R2P which has been invoked to ’rescue’ oppressed victims from the cruelty of their political leaders is always non-political, one that is just moved only by humanitarian considerations? If the intervention in Libya was triggered only by the urgency of saving Libyans, why abandon them now when the humanitarian situation facing them is much worse than before? If those that are intervening in the Syrian conflict are really moved by the tragic plight of Syrians in the hands of their cruel regime, and cruel it is, why are some of the states that are intervening in that conflict hesitant to even give asylum to Syrian refugees? Having said this, just because this doctrine can be abused by states does not mean that the international community should abandon it. If developed well, it can be used to vindicate the rights of humanity, irrespective of whether the crisis was brought by breaches of international human rights obligations or those flowing from international humanitarian law. In this sense, one sees a convergence between these two spheres of international law.

*Eyassu Gayim, Associate Professor, School of Global Studies, University of Gothenburg (Sweden). This contribution was presented at the Nordic Summer University conference held in Wroclaw, Poland, on 25 February 2017. The author is grateful to the Nordic Summer University for the support given to him to participate in this conference, and for the valuable comments given to language of this paper by Reverend Ezra Gebremedhin and Mogens Chrom Jacobsen.

Endnotes

[1] English Oxford Living Dictionaries https://en.oxforddictionaries.com/definition/human_being; and also http://www.dictionary.com/browse/humanity

[2] Thomas Hobbes, Leviahan (1651), Part II, Of Common-wealth available in the internet (http://www.philosophy-index.com/hobbes/leviathan/17-of-causes.php

[3] Immanuel Kant, Thomas Kingsmill Abbott, translator, The Metaphysical Elements of Ethics (Cambridge, Cambridge University Press, 1991), in, http://www.philosophy-index.com/kant/metaphysical_ethics/introduction.php

[4] Immanuel Kant, The Metaphysics of Morals, p. 255; and Richard Dean, The Value of Humanity in Kant’s Moral Theory (Oxford: Clarendon Press, 2006), especially pp. 7-8.

[5] Dictionary.com, in https://www.merriam-webster.com/dictionary/humanity Likewise, in Merriam-Webster (https://www.merriam-webster.com/dictionary/humanity) we see this term defined either as “the totality of human beings or the human race” or “The quality of being human or humane” in the sense of being “compassionate, sympathetic, or generous behavior or disposition”  See further Encyclopaedia Britannica, vol. 11 London: Encyclopaedia Britannica, Inc., 1969), p. 825; Peters, Pam The Cambridge Guide to English Usage (Cambridge: Cambridge University Press, 2004), p. 256, and Joyce M. Haukins & Robert Allen, The Oxford Enclopedic English Dictionary (Oxford: Clarendon Press, 1991).

[6] David Humes, An Enquiry Concerning Principles of Morals. (London: Strand, 1751- 1777 edition of the Essays and Treatises on Several Subjects reproduced in http://www.davidhume.org/texts/epm.html), conclusion M9.13.

[7] Ibid., conclusion, M9.7.

[8] Michel Agier, “Humanity as an Identity and Its Political Effects”, Humanity: An International Journal of Human Rights, Humanitarianism, and Development > Volume 1, Number 1, Fall 2010 (https://muse.jhu.edu/article/394858), p. 31.

[9] Charles Sherlock, The Doctrine of Humanity: Contours of Christian Theology (Leicester: Inter-Varsity Press, 1996), p. 238.

[10] Ayn Rand, The Virtue of Selfishness: A New concept of egoism (New York: An Nal Book, 1962 (1964), p. 33.

[11] Ibid, p. 34.

[12] Richard Rorty, Human Rights, Rationality, and Sentimentality, reproduced in www.nyu.edu/classes/gmornan/3/RoRTY.pdf  pp.167-169 and 177.

[13] Ibid., pp. 177.

[14] Geertz, Clifford. 1963. ‘The Integrative Revolution: Primordial Sentiments and Politics in the New States’. In Clifford Geertz, ed. Old Societies and New States: The Quest for Modernity in Asia and Africa. London: London Free Press, 255–310.

[15] Agier, p. 30

[16] See the first preamble of the 1998/9 Statute of the International Criminal Court, in http://www.un.org/law/icc/index.html

[17] Jack Donnelly, Universal Human Rights in Theory and Practice (Ithaca: Cornell University Press, 1989), p. 16.

[18] Eyassu Gayim, “The Discourse on Human Rights and the International Regime of Human Rights”, Nordicum-Mediterraneum Vol  11, no. 4, 2016.

[19] Lorrin Thomas, Humanity: An International Journal of Human Rights, Humanitarianism, and Development, Volume 6, Number 2, Summer 2015 pp. 337 – 340: James Dawes, Samantha Gupta, ”On Narrative and Human Rights”, Humanity: An International Journal of Human Rights, Humanitarianism, and Development, 2014, Vol.5(1), pp.149-151 (https://muse.jhu.edu/article/536275); and Alison Dundes Renteln, International Human Rights: Universalism Versus Relativism, Frontiers of Anthropology, vol. 6 (Newbury: Sage Publication, 1990), p. 17.

[20] Austin Sarat and Thomas R. Kearns, Human Rights: Concepts, Contests, Contingencies (Ann Arbor: University of Michigan Press: 2001) p. 11.

[21] Claire Breay, Julian Harrison, Magna Charta: an introduction, in https://www.bl.uk/magna-carta/articles/magna-carta-an-introduction.

[22] https://www.archives.gov/founding-docs/declaration-transcript

[23] Susan Maslan, “The Anti-Human: Man and Citizen before the Declaration of the Rights of Man and of the Citizen”, South Atlantic Quarterly, Spring/Summer 2004 103(2-3), p. 360 available in http://saq.dukejournals.org/content/103/2-3/357.full.pdf+html

[24] http://www.historyguide.org/intellect/declaration.html

25 UNHCHR, ”What are Human Rights?”, http://www.ohchr.org/EN/Issues/Pages/WhatareHumanRights.aspx

[26] Donnelly, p. 1.

[27] Austin Sarat and Thomas R. Kearns, p. 2.

[28] Lynn Festa. “Humanity without Feathers”, Humanity: An International Journal of Human Rights, Humanitarianism, and Development, Vol. 1, no. 1 Fall 2010, p. 7, in https://doi.org/10.1353/hum.2010.0007

[29] Ibid., p. 9.

[30] Ibid., p. 19.

[31]Jean-Jacques Rousseau, The Social Contract, opening part of chapter 1, in http://www.sparknotes.com/philosophy/socialcontract/section2.rhtml

[32] Reproduced in, Micheline R. Isyay, ed., The Human Rights Reader: Major Political Essays, Speeches, and Documents from Ancient Times to the Present, 2nd ed. (New York: Routlege, 2007) p. 128, available in google.com.

 

Human Rights Education for Lawyers: A Case Study into Universality and Its Relativism

The 1993 World Human Rights Conference asserted “the universal nature” of human rights and identified human rights education and training as an essential tool for the promotion of universal respect for, and observance of, all human rights and fundamental freedoms for all, in accordance with the principles of universality, indivisibility and interdependence of human rights.

Disagreements and even attacks on the universality of human rights, however, are widespread. The strongest argument of opponents against the universality principle is essentially the contestable claim about the universal enforcement/implementation of human rights. These opponents propose to reconcile the universality of human rights by rooting these rights in different cultural and legal traditions.

The diversity of civilizations, religions, cultures and traditions has been accepted by states via their legal obligations since they have already been reflected in the universality of human rights and thus contributed to the international normative universality. The global human rights regime has a subsidiary character and relies mainly on national implementation of the universal human rights standards. However, there is a great gap between the “high inspiration of human rights and the sobering realities on the ground”[1]. The lack of the proper national implementation has negative consequences: human rights law loses its regulatory functions and people’s trust. As a remedy, human rights education should become a driving force in their national implementation. The national judiciary, including lawyers, has a primary role in protecting human rights and providing means for their enforcement at the national and international level. This is why human rights education for lawyers is of vital importance and may serve as a means for effective conveyance of human rights knowledge, awareness and skills.

Will the process of internalization of the international norms by communities and individuals be more effective if the universal standards are translated into local culture and legal traditions via human rights lawyers as agents of change? The present article provides a case study of two educational projects for lawyers (hereafter “the Projects”) and draws conclusions on whether human rights education for lawyers may bring about reconciliation between universality and relativism by strengthening connections of domestic legal systems with international human rights standards and values.

The paper is set out in six sections. The first section presents the outlines and the relevant sources for the concepts of “universality” and “relativism”. The second section is devoted to the framework and concept of “human rights education” (HRE), and here I place special emphasis on the HRE for lawyers (HREL). The third section outlines the frameworks of the two educational projects for lawyers (the Projects) – “Electronic Human Rights Education for Lawyers” (EHREL) and “Bring International Standards Home” (BISH), which are the main subject of the case study. The next three sections explore several specific doctrines, namely, “International Human Rights Standards”, “Implementation” and its lex specialis in the human rights law –   “de facto implementation”, “Human Rights Defender”.

These concepts served as support for the education objectives of the human rights education Projects and have as such been incorporated into the curricula and educational activities of the Projects. These sections provide examples, relevant statistical data and facts on the increased learners´ educational outcomes in terms of knowledge and understanding, attitudes, values and skills in promotion and protection of human rights. The content and the outlines of the last three sections emphasize that international human rights law, when taught to lawyers properly and systematically, provides considerable space for national implementation activities in the various paths of domestic legal and cultural environments, while aiming at the same time to promote and protect universal human rights for all.

I defend the view that the universality of human rights in training for lawyers is a key principle and a tool for legal professionals. The application of the universal human rights standards in de facto implementation is effective if the awareness and understanding of the principle of universality is rooted into the national legal context and “owned” by lawyers as “providers” of legal assistance to victims of human rights violations.

 

 

Universality and Relativism: Outlines

The article does not aim to provide a broad introduction to all arguments in the adversarial debate on universalism and relativism. However, since these two concepts will often be used in the article, it is important to explain them in more detail.

For the purpose of the paper, “universalism” is defined as universal respect for, observance and protection of all human rights and fundamental freedoms for all in accordance with the Charter of the United Nations and other instruments relating to human rights and international law (para 1, the Vienna Declaration and Program of Action, 1993). As a departure point for the universality of human rights, I take the Universal Declaration on Human Rights (1948), Preamble, para 8.

The concept of “relativism” is regarded as a space for national, regional, cultural particularities and other forms of diversity and relativity (J. Donnely, 2007). The intensive study of cultural relativism was conducted under the auspices of the UN Human Rights Council in 2010 and 2012 (A/HRC/16/37 and A/HRC/22/71).

Relativity has different dimensions – cultural, religious, historical, traditional, etc. For the purpose of this paper, I will refer mainly to the legal relativity, meaning particularities of national legal systems, including legislation, practice and legal culture.

The academic research on the principle of universality in light of traditional values has been studied in depth and taken into account in the analysis of the main subject of the current case study.

Human Rights Education

The global normative framework for HRE was finalized with the adoption of the United Nations Declaration on Human Rights Education and Training in 2011.

The Declaration defined the main objectives, principles and responsibilities of States and other stakeholders. Particularly, it specified that HRE aims at promoting universal respect for and observance of all human rights and fundamental freedoms and thus contributing, inter alia, to the prevention of human rights violations and abuses by providing persons with knowledge, skills and understanding and developing their attitudes and behaviours, to empower them to contribute to the building and promotion of a universal culture of human rights.

Later, the aims were interpreted in the Report of the Office of the UN High Commissioner for Human Rights as follows:

 

Human rights education and training encompass: (a) knowledge and skills – learning about human rights and human rights mechanisms and acquiring skills to apply them in practical ways in daily life; (b) Values, attitudes and behaviour – developing values and reinforcing attitudes and behaviour which uphold human rights; (c) Action – taking action to defend and promote human rights.

HRE was recognized in international law as an individual human right and as a concept much earlier.

Indeed, the Universal Declaration on Human Rights (1948) was the first international document, which shaped the right for education and made an important step in recognizing a “special” right – the right for human rights education and awareness (Preamble and Art. 26 part 2).

The Vienna Declaration and Program of Action (1993) called national States to direct education towards the full development of the human personality and the strengthening of respect for human rights and fundamental freedoms. It called on all States to include “human rights education programmes” as subjects in the curricula of all learning institutions in formal and non-formal settings.

The United Nations Decade for HRE (1995-2004) was the first global program and became a predecessor of the currently on-going World Programme for Human Rights Education.

The findings and lessons learned of the UN First Decade were of interest for those who deal with HRE: “Formal education is traditionally knowledge-based, and this approach alone is not conducive to attitudinal changes which are the objective of the human rights efforts”[2]; Lack of synergy between jurists and pedagogues, as well as the lack of coordination between Governments and NGOs; No effective coordination in place at the international level; Lack of human and financial resources to implement human rights education programs; Donors’ inconsistency in supporting programs conducted by civil society organizations; Lack of political will of some authorities and unwillingness to empower population with knowledge and awareness on universally recognized normative set of rights which might be claimed by individuals, etc.

Using the experience of the first decade and results of its evaluation, international and regional institutions have developed numerous guidelines and education standards for human rights education for different professional groups and levels of education.

The international framework for human rights education for lawyers (HREL), however, is still limited to the single reference in the Basic Principles of the Role of Lawyers (1990) stating that “governments, professional association of lawyers and education institutions shall ensure that lawyers have appropriate education and training and be made aware of the ideas and ethical duties of the lawyer and human rights and fundamental freedoms recognized by national and international law”.

The Special Rapporteur on independence of judges and lawyers in her report submitted to the UN General Assembly (2016) referred to the duty and responsibility of lawyers to “uphold human rights and fundamental freedoms recognized by national and international law” as it was stated in the UN Basic Principles of the Role of Lawyers (1990). She has also reiterated that legal education and training should also include the study of international human rights at the domestic level, as well as to make use of international mechanisms, including regional mechanisms, for the protection of human rights.

During the last decade, the European initiatives – to ensure the most effective application of the European Convention of Human Rights at national level – resulted in designing and developing the pan-European training platform assisting all the member States in their action for effective integration of the Convention into the domestic legal judicial training. The aims and methodology of the HELP program based on the UN Declaration on the HRE and the World Program for HRE contribute significantly to the current landscape of HREL in many Council of Europe countries.

 

Bring International Standards Home and Electronic Human Rights Education for Lawyers

The case study presents the analysis of the results of the two human rights education projects: the first one, “Bring International Standards Home” (BISH, started in 2006 and ongoing), was tailored to lawyers and other professional groups from Belarus, while the second project, “Electronic Human Rights Education for Lawyers” (EHREL, 2009-2016) was designed for legal professionals of several CIS countries. Both projects have been implemented under the “International Law in advocacy” (ILIA) umbrella program of the Human Rights House Network (HRHN), which is well known in the countries participating in the Projects.

The current section describes the frameworks, conditions and features of the Projects, with references to some quantitative results. The qualitative outcomes of the training, with a focus on the universality principle, will be presented later in the sections regarding the specific concepts embedded into the curricula.

The Projects were developed by partners of the international human rights network – the Human Rights House Network – and experts who shared the common understanding of the need to improve the level of implementation of human rights obligations in the region and to provide better protection for civil society organizations, human rights defenders and the population at large. The Projects and their curricula were designed before the UN HRE Declaration was adopted. However, the international commitments and documents in the field of human rights education had been studied. Later on, the cooperation with the CoE HELP Program´s team contributed to strengthening the Projects´ outcomes. Remarkably, the Projects´ education framework implemented principles, which were very much similar to those included in the current UN HRE Declaration.

There is a good explanation for this fact, since the authors of the Projects’ curricula based them on the principles of the Universal Declaration on Human Rights and the relevant human rights treaties, with a view to:

  • Raising awareness, understanding and acceptance of universal human rights standards;
  • Applying the human rights-based approach and legal standards in daily professional activities;
  • Contributing to building an environment where everyone is aware of the rights of others and promoting the conception of the individual as a responsible member of a peaceful, pluralistic and inclusive society;
  • Pursuing the “de facto implementation” of the States’ international obligations, with the knowledge and clear understanding of the opportunities and limits of the national legislation and practice and, nevertheless, drawing inspiration from the diversity of the national legal systems participating in the training;
  • Contributing to the prevention of human rights violations via the dissemination of knowledge, awareness of and skills in the international human rights standards and instruments via professional lawyers’ networks and building bridges between lawyers and human rights organizations.

The diversity of cultural and legal traditions of the selected countries was taken into consideration and enriched the joint training of lawyers from these countries. Via a comparative method, the differences between the legal traditions and specific provisions of the domestic legislation and practice were interpreted and measured by the application of the international human rights standards.

The authors of human rights education and post-educational (follow up) activities for lawyers from the above-mentioned countries took into consideration the similarities between the legal systems in the participating countries. As it is commonly known, the CIS countries reappeared as independent states due to the collapse and the dissolution of the former Soviet state. However, they still have common features, including those related to the international human rights law instruments:

  • The Constitutions and national legislation of most CIS countries declare the entitlement to invoke the international law directly as a standard for cases when it provides higher protection for human rights;
  • The extensive sets of international and regional human rights binding instruments are formally recognized by the governments of the countries;
  • Most countries follow the monistic system in respect what regards the interrelation between international law and national law;
  • The judiciaries of these countries have rather poor knowledge of and skills in direct application and interpretation of international human rights standards;
  • Human rights education programs for lawyers, both in universities and conducted by professional lawyers´ associations have not been sufficiently developed;
  • The recent assistance of the CoE HELP Program can not cover all target groups of lawyers; etc.
  • In some countries, like Belarus, participation of lawyers in human rights education programs, unless approved by the Bar Association, might cause disciplinary measures against the lawyers;
  • Generally, in all the CIS countries, bar association’s lack understanding of the need for continuing human rights education of lawyers;
  • The last but not the least important point is that the population and the lawyers show high respect for the international human rights standards and acknowledge the legitimacy of the international and regional human rights judicial and quasi-judicial bodies ensuring justice in cases of human rights violations.

New information and communication technologies have been used to create an online learning platform (http: ilia.humanrightshouse.org) available for lawyers from different countries and remote regions.

The training for lawyers have used a combination between the online format of training and offline activities most suited for professional lawyers. The methodology and formats of the training were chosen taking into consideration the specific needs and working conditions of learners and their expectations regarding the improvement of the individual level of knowledge and skills and the widening of their professional network:

  • In-person introductory seminars in each of the countries;
  • Online distance learning seminars and lectures as the core teaching method;
  • Home reading and research;
  • Online forum discussions;
  • Home assignments and online tests;
  • Consultations with experts and evaluations of their home assignments; and
  • The final international conference including a moot court.

The Project partners conducted careful planning and fundraising activities to get the necessary resources, and undertakings to follow up on the training activities and support the alumni networking, advocacy and solidarity actions. The cross-border and international activities were designed and conducted in online and offline formats.

An important note: it is very difficult to evaluate the impact of education in general, and it is a very true statement for HREL as well.  Some numbers (collected in 2015), however, may give an understanding of the quantitative results of the Projects’ alumni:

  • 4,860 consultations on human rights violations
  • 172 strategic litigation cases in the area of human rights
  • 325 people participating in the “Human Rights Lawyers as a Group at Risk” online forum run by the alumni
  • 394 alumni and experts participating in online discussion fora and knowledge sharing in the ILIA-Club
  • 27 reports and documents written or co-written by the alumni and submitted to international organizations
  • 90 % of the alumni collaborate with the Human Rights Houses within the Human Rights House Network or with other human rights organizations
  • 97 % of the alumni use the knowledge gained in ILIA in their professional activities.

While education in the field of human rights generally has the ultimate goal to increase respect for human rights leading to social changes, the evaluation of the results of HREL might be measured by identifying the changes at different levels:

  • Individual: what knowledge, skills, attitudes and behaviours has a participant acquired, reinforced and modified?
  • Organizational: have the participants shared their experience with their professional environment and in what way?
  • Social: changes, which have occurred to a broader community.

As mentioned above, there are difficulties with tracing the results of the changes that have taken place. At the same time, the focus of the current paper on the principle of universality of human rights and its application in the context of the national implementation allows us to present the most relevant selected data, which reflect the social and attitudinal changes in the learners in this regard.

 

Common (Universal) Standard(s)

 

Now, therefore THE GENERAL ASSEMBLY proclaims THIS UNIVERSAL DECLARATION OF HUMAN RIGHTS as a common standard of achievement for all peoples and all nations for all peoples and all nations, to the end that every individual and every organ of society, keeping this Declaration constantly in mind, shall strive by teaching and education to promote respect for these rights and freedoms and by progressive measures, national and international, to secure their universal and effective recognition and observance, both among the peoples of Member States themselves and among the peoples of territories under their jurisdiction.

UNIVERSAL DECLARATION OF HUMAN RIGHTS (1948), Preamble.

The term and the concept of the “Universal Human Rights Standards” or “International Human Rights Standards” (IHRS) are broadly used in political and public life. There is no definition of the term in place and, for the sake of clarity, lawyers need to understand the concept in order to use it in their professional activities. This is the main reason why the term has been presented to and studied by the learners of the two HREL Projects.

The importance of the concept in terms of its adherence to the universality of human rights was also taken into consideration:

  • After being proclaimed in the Universal Declaration on Human Rights, the notion has been effectively used in the legal turnover both at the international and national levels.
  • By virtue of the principle of universality, the IHRS perform regulatory, control, protective, informative and educative functions regardless of whether the concrete international norms give rise to a legal obligation for a specific country.

The persistent application of the term and the expression in the legal practice has even expanded during the last two decades. International bodies “…have made remarkable progress in standard setting, institution building, and programme implementation[3]. The CIS member states reiterate that “… the observance of international standards in the field of human rights by all Member States of the Commonwealth of Independent States, and the development and fostering of respect for human rights and fundamental freedoms for all, regardless of race, sex, language, political beliefs, religion and social origin, contribute to the deepening of democratic reforms, economic and social growth and the strengthening of law and order[4].

The sustainable application of the term “International Human Rights Standards” in the CIS region plays an important role for the process of effective practical acceptance of legal sources of international law.

One should know that Article 38 of the Statute of the ICJ, generally accepted as a list of sources of international law, does not have the same importance in theory and practice of the CIS countries. Scholars and practitioners of these countries tend to apply the IHRS as a generic term for the cases where there is a need to apply a combination of different sources of international law, as well as a “mixture of hard and soft instruments”.

The challenge to define legally the term “International Human Rights Standards” has been taken by the authors of the curriculum as an opportunity to discuss with the learners some important features related to the term.

Lawyers study the process of standard setting at the international level. They start out trying to understand the principle of legal certainty (inspired by legal positivism) and further on the need for a broader perception of the rights-oriented concept (human rights as a product of “natural law”).

Since the generic term IHRS brings together different types of international instruments (such as those that are recognized sources of international law and the so-called “soft law” and “case law” instruments), the learners are invited to make a comparative study and select the “hard” and “soft” law instruments such that they will be able to combine them in their professional activities, defending victims of human rights violations and interpreting the national legislation applying the IHRS.

Discussions in forums and home assignments help the learners to understand that IHRS is a “live” concept, which combines different universal norms and serves as a tool for identifying human rights violations and applying the standards to actual situations at the domestic level.

As a result of the training, all the alumni look for the “standards” in their professional activities when they need to challenge and/or examine the national legislation and/or practice. They know that the IHRS may assist the national legislators when preparing amendments to the national legislation; they use international standards as a scale to analyse the compliance of the national law with the international obligations, they consult not only to provisions of the treaties, but also to the concluding observations and decisions of the human rights mechanisms, such as the treaty bodies and regional human rights courts.

98.2% of the alumni gave a positive response to the question, “Do you refer to the norms of the international human rights law in your professional activities?”. The following quotes illustrate the responses:

“Before my training in the project “Electronic Human Rights Education for Lawyers”, I did not use the human rights approach and international human rights law. Now, I refer to provisions of the international human rights treaties, but also to the customary rules, general principles of law and the soft law instruments. Unfortunately, in our country, the court and judges are not used to applying the international norms. Sometimes, I see a lenient or even a hostile attitude towards references to the international standards. We need to change the situation and I see my role in this as well.” (alumnus from Belarus)

“My current pleads to the courts are based on the international human rights standards. I noticed that the judges and persecutors listen to my pleads with higher attention and interest since the international human rights law is a new topic for them. My clients have trusted me even more since I started referring to the international standards. I have become more confident in my professional activities since I know that if the national courts fail to ensure justice I will be able to restore it using the international human rights regime” (alumnus from Ukraine)

 

 

Implementation – De facto implementation – Bring standards home

A wide interest to the legal concept of “implementation” and the relevant term arose after the adoption of the “post-communist” constitutions. Most of the constitutions have propositions on the monistic approach towards international law and declare human rights as the aim and the priority of the States.

However, the narrow definition of the legal concept of implementation as organizational activities undertaken by national governments and covering mainly legislative procedures still prevails. There is a need to define the broad meaning of the process of domestication of the international treaties in the national legal systems. The broader understanding of the process of implementation will stimulate manifold activities, planned and conducted by different actors and targeting the full compliance of the national legislation and practice with the international human rights standards.

Thus, the direct application of the international human rights norms in the defence of people´s rights by a wide range of actors is called by the author de facto implementation and is considered as a lex specialis of the general concept of implementation.

The first human rights training curricula of the Projects for lawyers were designed in 2005 under the long title ”De facto implementation of international obligations of the Republic of Belarus in the field of civil rights and freedoms”. Although the title clearly reflected the main idea of the human rights training for lawyers, it had a disadvantage – it was too long. The current brief name “Bring International Standards Home” suits the Project even better since it conveys the major message – the aim to train lawyers in the application of IHRS in the national practice.

Lawyers were invited to study the problem of the national implementation in depth and to discuss possibilities regard the national implementation of the universal model.

In reality, the international human rights law has designed an algorithm, which may influence the national implementation process. Lawyers have to know it. An attempt to lay out a model for the national implementation approach was made in Article 2 of the ICCPR.

  1. Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.

 

  1. Where not already provided for by existing legislative or other measures, each State Party to the present Covenant undertakes to take the necessary steps, in accordance with its constitutional processes and with the provisions of the present Covenant, to adopt such laws or other measures as may be necessary to give effect to the rights recognized in the present Covenant.

 

The Article, together with the interpretation provided by the UN HR Committee, constitutes a model of the national implementation process. The wording “giving effects to the rights” expresses the true meaning of the process of national implementation. Learners are provided with the knowledge of and skills in how to interpret the provisions and strengthen a claim through direct application of international human rights provisions. The authors of the BISH curriculum for training of the Belarusian lawyers included the following topics:

  • National mechanism of the implementation of international obligations, including constitutional and ordinary law provisions and safeguards for primacy of human rights and international obligations in case of their non-compliance with national legislation,
  • Interpretations of provisions of international treaties as legitimate tools and applying international provisions directly in national litigation and practice.

Later, the EHREL project also included the above-mentioned topics in the curriculum and additionally issued a comparative analysis of the national legislation regarding the implementation mechanisms in several countries prepared by national experts. The entire distance education EHREL cycle included nine separate courses; the first stage of the cycle focused on human rights doctrine, law, standards and mechanisms, while the second stage focused on the implementation of human rights at both the international and national levels.

The term and the concept of “implementation” were studied in depth. In addition to the previous clarifications, several other reasons for that should be mentioned. First of all, in the international law, there is no unified definition of the “implementation” concept. Moreover, the term overlaps with some other legal notions, such as enforcement, application, compliance, etc. The term “implementation” is furthermore avoided in the official Russian translations of the UN documents, since they would rather use the word “osuschestvlyat” that is not a legal notion and has a broad meaning closed to the word ”realisation”. As a result, the CIS national legal systems, which use the Russian language in legal transactions, have difficulties with the practical and doctrinal application of the term and the concept ”implementation”.

Since the legal mechanisms and specific legal acts on domestication of the international law often contradict each other and show signs of dualism, it is crucially important for practising lawyers to be aware of the superior role and power of the international human rights provisions in their national legal orders.

Finally, since the traditional “implementation” concept of the international public law has been significantly changed in the realm of the international human rights law, lawyers need to understand this new framework.

The application of a broad concept of implementation of the international human rights law supports the principle of universality and makes it alive. Indeed, in cases where the national legislation and/or practice fail to comply with the IHRS, lawyers may invoke the universal propositions directly on human rights and provide higher protection to a victim.

Several different methods and training activities have been used for training on the subject:

  1. The learners were invited to study the national legislation, as well the relevant reports to the international bodies, in a search for the term “implementation” and its sense of “giving effect to the rights”.
  2. The learners from all five countries had a joint discussion on the monist and dualistic approaches towards international human rights law in conjunction with the provisions of the Universal Declaration on Human Rights, as well as the Preamble and Article 2, part 3 of the International Covenant on Civil and Political Rights. The aim of the exercise was to show the learners that the principle of universality, embedded into the above-mentioned provisions, provides a monistic approach for the direct application of international human rights law.
  3. Finally, lawyers had a home assignment to prepare a plan of activities with aiming at implementing the recommendations given to a country within the Universal Periodic Review procedure. The task required from lawyers a good understanding of implementation as a concept and as a set of activities. It is assumed that the “de facto” implementation embraces not only legislative measures, but also a broader spectrum of activities including strategic litigation, public campaigns and dialogue with the authorities and the civil society organizations.

In the course of the training, consequently, the term “implementation” was applied in the broad meaning, i.e. it includes manifold activities which aim at ”giving effect to the rights” and are to be conducted by national governments, but motivated by other actors as well, including lawyers and individuals.

One should take into account that in the previous periods a number of publications were prepared within the Projects framework. These publications address the scope of practical aspects in the implementation concept, including those connected with the institute of individual complaints. The authors of the publications have disseminated knowledge on the interrelation between the international law and domestic law provisions and clarified the issues related to the legal force of the views of the UN treaty bodies and admissibility of individual complaints to the UN Human Rights Committee and other treaty-bodies. These publications have been distributed among and were highly popular among the Project alumni, legal professionals, human rights NGOs, students, etc.

The concept of “implementation” has become familiar and practical. Lawyers do use it with the awareness of the fact that once a national legislation was adopted as a result of the international treaty domestication process, it does not stop being scrutinized regarding its compliance with the universal human rights standards. The implementation process continues and lawyers have to play an active role in it.

According to the survey statistics, the alumni use the knowledge and skills in their professional activities: when preparing legal documents, for argumentation in pleadings, in teaching/sharing knowledge, in consultations, analytical work, to enlighten the authorities, in law making, reporting, etc.

 

 

Everyone, Individual, Human Rights Defender, Human Rights Lawyer

 

Everyone has the right, individually and in association with others, to promote and to strive for the protection and realization of human rights and fundamental freedoms at the national and international levels.

Declaration on human rights defenders (1998), Article 1.

The human rights law has changed several doctrines of the “classical” public international law. One of the important changes is the recognition and institutionalization of the status and role of individuals in the process of standard setting, monitoring and other activities related to the implementation of the states’ obligations in the field of human rights obligations.

In his review of the international human rights system, Thomas Burgenthal (Judge of the International Court of Justice from 2000 to 2010) writes that while previously the activities in the field of international law were related only to the activities of the states, now an individual or a group of individuals may replace or supplement the role of the states in the international legal regulation. “New technologies and growing complexity of solving global problems have increased the level of uncertainty in decision-making, contributed to the ‘blurring‘ of authority in decision-making at the international level”, “technology destroyed the state monopoly on the collection and dissemination of information”[5] all these factors have contributed even more to the process when the new actors take on some of the operational functions in contemporary international law.

The legal doctrine and university curricula of the CIS countries, for many reasons, fail to highlight these changes. As a result, lawyers, graduating from the state universities, have a limited or vague understanding of the current composition of actors and subjects in international law and still rely on the tenets and practices of the classical public law where only states are recognized as full-fledged subjects of international law.

Neither have they professional confidence in pursuing legal claims and processing claims for social changes at the national and international levels. In reality, to work on cases on alleged human rights violations, lawyers need to understand that their status, immunities and protection guarantees will be expanded to their new role as representatives of victims of human rights violations at the international level.

Among the Projects’ educational goals are those enabling lawyers to influence the standard setting process, to improve the level of the national implementation of the international standards and to raise the awareness of the civil society and professional community regarding the role of lawyers and the guaranties and immunities surrounding their work on human rights promotion and protection.

Since the training is conducted within the international network of non-governmental entities sharing the common mission – to support human rights organizations and human rights defenders – the participants are motivated to learn more about the legal mechanisms eligible to support and provide better protection for human rights work.

From the very beginning of the training, the learners are made familiar with the concept of ”Human Rights Defenders”. They study the legal framework for human right defenders’ work, starting with the “Declaration on the Right and Responsibility of Individuals, Groups and Organs of Society to Promote and Protect Universally Recognized Human Rights and Fundamental Freedoms”, often referred to as the “Declaration on Human Rights Defenders” (1998).

The issue of the role of individual and the legal representation of victims of human rights was studied during all the thematic courses included in the curriculum. Particularly, the training made the learners familiar with the procedural instruments for individual complaints in the framework of the international (UN) and the regional (CoE) mechanisms within the courses “Human rights protection system established by the UN” and ”Human rights protection system established by the European Convention on Human Rights”. The training also developed lawyers’ practical skills in preparing legal claims for submission to the international bodies. It made them understand that individual communications fill the gap, which is a result of the failure by the states to take action as parties to the human right treaties.

 

“The ILIA programme encouraged me to think in new ways. In Ukraine, the European Court of Human Rights is used quite frequently, but not the UN mechanisms. Sometimes they can be the right remedy. For instance, I learned about the Working Group on Arbitrary Detention – and that is an important tool in my current work with refugees. Submissions to the Working Group are quite effective for prompt advocacy”. – Lawyer, Ukraine

However, the increasing numbers of individual communications to the international bodies, prepared by the Projects alumni, are not the most important indicator in the Projects’ evaluation framework. Indeed, HREL aims mostly to raise awareness of lawyers in terms of promoting and protecting the conditions in which the activities of individuals might be more efficient.

The awareness of the alumni of their human rights work as well as their knowledge and skills in advocacy, including the solidarity and promotion of human rights standards for legal professionals have also been developed during the training and follow-up activities.

Let me briefly describe an example of the alumni’s joint work on a case concerning protection, monitoring and standards setting. Lawyers studied and discussed the international set of principles and guaranties for lawyers (UN Basic Principles on the role of lawyers) during the online training. Later, at the conference “Lawyers: human rights protection and guaranties for professional activities”, the alumni discussed the problems of the status of and guaranties for lawyers in the CIS region and decided to conduct monitoring activities.

Soon after the conference, the conference moderator, Intigam Aliev – the best-known lawyer in Azerbaijan, who embodies justice in the country, and the EHREL Project expert and partner – was arrested. In 2015, he was sentenced for his work to seven and a half years in prison. In his plead to the court he said:

“My activities related to the European Court, in particular, the cases on violations of electoral rights, have played a big role in my arrest. That work irritated the authorities badly, and I was repeatedly informed about the possible unwanted consequences of that work for me and for our organization” (A quotation from the final speech of the prominent human rights lawyer Intigam Aliyev in court, Baku, Azerbaijan, April 2015).

 

Immediately after the arrest, the alumni and experts launched online solidarity actions and sent communications to the national authorities reminding them about the international human rights guarantees and lawyers’ immunity.

In September–November 2014, lawyers, mainly the Projects’ alumni, organized an online analytical group to monitor the situation in the CIS region and to conduct an online survey (more than 100 lawyers answered questions).

In 2015, the alumni participated in the legal consultations, in the preparation of an amicus curia letter to the European Court on Human Rights. They contributed to the formulation of the legal position of attorneys defending Intigam Aliyev and other human rights defenders arrested and persecuted in Azerbaijan. The position was based on the findings of the analytical group and highlighted the special status of human rights defenders including human rights lawyers. Later their findings were reflected in the ECHR case law.

Lawyers from all five countries continue to participate in solidarity actions against repression in Azerbaijan. The report “Human Rights Lawyers at Risk” was finalized and dedicated to Intigam Aliev.

This specific example illustrates several important competences, which have been acquired by the lawyers during the training and owing to the professional cross-border networking activities:

  • Ability to critically analyse the national legislation;
  • Ability to conduct comparative analyses of practice between five countries with respect to professional standards and the implementation of international professional standards in these countries including Azerbaijan;
  • Vision and knowledge of international mechanisms on human rights defenders and readiness to contribute to the standard setting and development of the existing standards on lawyers’ professional guaranties;
  • Appreciation and readiness to start a national implementation by applying both international standards and the findings of the Report with a view to enforcing the standards at the national level;
  • Understanding the importance of joint solidarity campaign and legal assistance for special cases protecting human rights defenders and human rights lawyers
  • Rendering legal aid with the application of the international standards developed for human rights work;
  • Issuing a report, which revealed problems and indicated that lawyers who work on human rights are less able to enjoy the professional immunities and guarantees, which should protect them. The main finding of the report is as follows:

 

Human rights lawyers are both lawyers and human rights defenders. Guarantees and immunities for lawyers enshrined in national and international law must be implemented and respected, while human rights guarantees must extend to all who work within human rights, including human rights lawyers.

After the Report was presented at the OSCE Conference and in the CoE in 2015, the authors of the report were invited to the regional consultations with the UN Special Rapporteur on the Independence of Judges and Lawyers. In August 2016, the Report of the Special Rapporteur on the Independence of Judges and Lawyers was submitted to the UN General Assembly.

Among the trends and challenges highlighted by the Special Rapporteur, there are several issues, which may become newly updated universal standards – and which have been extracted from the report “Human Rights Lawyers at Risk” and the recommendations prepared by the participants of the consultations:

The right of access to clients imprisoned, even if lawyers are not members of bars that is when they represent clients before international and regional human rights courts (p. 52 of the UN SR Report); Lawyers engaging in representation of clients before international and regional courts should be awarded the same guarantees and protection as lawyers litigating in local tribunals regardless of whether they are or are not members of their national bar associations (p. 53 of the Report UN SR); Lawyers shall be regarded as human rights defenders if the work of the lawyers is closely related to the promotion and protection of human rights; Guaranties for human rights defenders shall embrace lawyers if they conduct human rights work (part 4 of the “Lawyers as human rights defenders” Report UN SR).

Conclusions

1.

Normative articulation of human rights with emphasis on their universality is a great achievement of the international community, which was crowned by the adoption of the Universal Declaration on Human Rights.  The further development of the international human rights regime, however, was and will be challenged by practitioners, politicians and academics who point to the unsatisfactory level of national implementation of international commitments and look for ways to root common standards into local contexts.

2.

Human rights education has a fundamental importance in contributing to promotion, protection and realization of all human rights. The international framework includes different educational and training activities, which might be tailored to specific groups. Human Rights education for lawyers is essential. International law, however, leaves it mainly to national governments and bar associations to ”ensure that lawyers receive appropriate education and training” and are ”aware of the ideals and ethical duties of the lawyer and human rights and fundamental freedoms recognized by national and international law” (UN Principles on the Rule of Lawyers). In the last decade, the CoE has started to disseminate programs and online courses for pan-European countries in order to improve levels of human rights education and decrease a flow of individual claims to the ECHR.

3.

The case study of the two educational Projects conducted by the Human Rights House Network shows that a systematic training for lawyers might have a great potential in terms of bringing the universal human rights standards home. Evaluation of results of educational Projects on human rights for lawyers of five countries of the CIS region (Azerbaijan, Belarus, Moldova, Ukraine and Russia) reveal changes at the individual level in knowledge, skills and attitudes gained during the training. Quotes of participants´ replies included into the main part of the paper demonstrate that the changes also concern the learners´ increasing awareness and respect for human rights and observance of the universal standards at the national level.

4.

Evaluation of results also show that changes at the individual level pushed lawyers to disseminate their knowledge through professional and social activities.

The following brief overview reminds us about the impact:

97% of alumni use the knowledge gained in the Projects in their professional practice.

90% of alumni collaborate with Human Rights Houses in their countries or/and with other civil society organizations.

Most of them report that they changed their professional methods and start to apply international human rights standards in litigations, but also in other activities aiming at the transformation of their national systems: “I see the prospect in the implementation of international standards to amend national law… We have to explain to people what we need to change in our national legislation that it will be good and useful for us, and then, after these changes are made, our law will match the international standards. The way to change should come from people and their understanding, not from international bodies.” – Alumni Belarus

394 alumni and experts have regularly communicated via online channels to exchange knowledge and take part in solidarity actions. Alumni provided almost 5000 legal consultations (in 2015) to victims of human rights violations and conducted 172 strategic court cases to address acute problems with national implementation of international obligations in the field of human rights. 325 alumni have contributed to developing international standards for guaranties and immunities of human rights lawyers.

5.

To prepare lawyers for the practical application of the principle of universality, the human rights education program shall include topics, which form lawyers´ understanding of international and national legal regimes in their interdependency.  The gained experience shows that lawyers of the CIS region often lack the knowledge on peculiarities of international human rights law which makes it different from”classical” public law. Concepts such as ”International Human Rights Standards”, ”Implementation and de facto implementation” as well as ”Status and Role of Individual/Human Rights Defender” shall be delivered to learners to ensure their understanding of the direct applicability of international human rights norms and about the eligibility of individuals in promoting and protecting human rights at the national and international levels.

6.

After lawyers have ”appropriated” the doctrinal and practical issues on international human rights law and have restudied the national provisions with respect to the effective implementation of international standards, the lawyers will become effective actors of the two-way process facilitating “a cross-fertilization” between national law and international human rights standards.

Bibliography

HELP Guidebook on Human Rights training methodology for legal professionals, Council of Europe, 2016. Retrieved from https://rm.coe.int/168066db63

UNGA Report of the Special Rapporteur on the independence of judges and lawyers. (22 August 2016), UNI Doc A/71/348, 2016. Retrieved from http://undocs.org/A/71/348

“International Law In Advocacy” (ILIA) and Projects “Bring International Standards Home” and “Electronic Human Rights Education”, Human Rights House Network (2016) Retrieved from http://humanrightshouse.org/Projects/ILIA/index.html

Information flyer ”International Law in Advocacy”, Human Rights House Foundation, (2016)

Online educational resources with training materials, e-library, online workshops and  online courses of the ”International Law in Advocacy” Retrieved from http://ilia.humanrighsthouse.org

Human Rights Lawyers at risk, Report of the Human Rights House Network, 2015. Retrieved from http://humanrightshouse.org/Articles/21175.html

UNGA Plan of Action for the third phase of the World Program for Human Rights Education (4 August 2014), UN Doc A/HRC/27/28.

UN HRC Workshop on traditional values of humankind. Report of the United Nations High Commissioner for Human Rights (13 December 2010), A/HRC/16/37

UNGA ‗Draft plan of action for the second phase (2010-2014 of the World Programme for Human Rights Education (27 July 2010), UN Doc A/HRC/15/28.

OSCE Guidelines for human rights education: Guidelines on Human Rights Education for Secondary School Systems (2012), Guidelines on Human Rights Education for Health Workers(2013), Guidelines on Human Rights Education for Human Rights Activists (2012), Guidelines on Human Rights Education for Law Enforcement Officials(2012).

UN GA HRC_ Study of the Human Rights Council Advisory Committee on promoting human rights and fundamental freedoms through a better understanding of traditional values of humankind (13 December 2012). UN Doc A/HRC/22/71.

UN HRC Res 66/137: Declaration on Human Rights Education and Training, adopted (19 December 2011). UN Doc A/RES/66/137

UNGA ‗Draft plan of action for the second phase (2010-2014 of the World Programme for Human Rights Education (27 July 2010), UN Doc A/HRC/15/28.

UN HRC Res 15/11: World Programme for Human Rights Education: Adoption of the Plan of Action for the Second Phase of 6 October 2010, A/HRC/RES/15/11.

UNGA ‗Revised Draft Plan of Action for the First Phase (2005–2007) of the World Programme for Human Rights Education‘ (2 March 2005) UN Doc A/59/525/Rev.1.

SECRETARY-GENERAL, IN ANNIVERSARY MESSAGE FOR WORLD CONFERENCE ON HUMAN RIGHTS, UNDERSCORES IMPORTANCE OF STRENGTHENING RELEVANT EDUCATION AT ALL LEVELS Retrieved from http://www.un.org/News/Press/docs/2008/sgsm11763.doc.htm

Human Rights Standards: Learning from Experience (2006) International Council on Human Rights Policy. Retrieved from http://www.ichrp.org/files/reports/31/120b_report_en.pdf

UN Commission on Human Rights ‗Promotion and Protection of Human Rights: Information and Education: United Nations Decade for Human Rights Education (1995–2004): Report on Achievements and Shortcomings of the Decade and on Future United Nations Activities in This Area‘ (25 February 2004) UN Doc E/CN.4/2004/93.

UN GA Res: Declaration on the Right and Responsibility of Individuals, Groups and Organs of Society to Promote and Protect Universally Recognized Human Rights and Fundamental Freedoms”(09 December 1998) UN Doc 53/144.

Vienna Declaration and Programme of Action‘ UN World Conference on Human Rights (25 June 1993) UN Doc A/CONF.157/23. Vienna Declaration and Programme of Action, adopted by the World Conference on Human Rights in Vienna on 25 June 1993.

КОНВЕНЦИЯ СОДРУЖЕСТВА НЕЗАВИСИМЫХ ГОСУДАРСТВ О ПРАВАХ И ОСНОВНЫХ СВОБОДАХ ЧЕЛОВЕКА (26 мая 1995 года), Retrieved from http://www.consultant.ru/document/cons_doc_LAW_6966/

Basic Principles on the Role of Lawyers, adopted by the Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders, Havana, Cuba 27 August to 7 September 1990.

CCPR General Comment. № 3 «Implementation at the national level». (Art. 2) (1981); «Reporting guidelines». CCPR General Comment. № 02 (1981); «General measures of implementation of the Convention on the Rights of the Child» (arts. 4, 42 and 44, para. 6) СRС. № 5 (2003); «The Obligations of States Parties under the Optional Protocol to the International Covenant on Civil and Political Rights». CCPR General Comment. № 33 (2009) etc.

International Covenant on Civil and Political Rights, adopted and opened for signature, ratification and accession by General Assembly resolution 2200A (XXI) of (16 December 1966).

Universal Declaration of Human Rights, UNGA Res 217 A (III) (10 December 1948) GAOR 3rd Session Part I Resolutions 71.

Report of the UN Special Rapporteur Monika Pinto Report of the Special Rapporteur on the independence of judges and lawyers (2016), A/71/348 https://documents-dds-ny.un.org/doc/UNDOC/GEN/N16/264/93/PDF/N1626493.pdf?OpenElement.

An-Naím, A. A. (1992) Towards a Cross-Cultural Approach to Defining International Standards of Human Rights In A. An-Na’im (ed) Human Rights in Cross-Cultural Perspectives: A Quest for Consensus. University of Pennsylvania Press, Philadelphia.

Donnely, J. (2007). The Relative Universality of Human Rights, Human Rights Quarterly Vol. 29, pp. 281-306.

Nowak, M. (2009). Challenges to National Implementation of International Human Rights Standards –Background Paper WG I. Global Standards – Local Action. 15 Years Vienna World Conference on Human Rights. Eds: Benedek, Wolfgang and others. Wien-Graz, 2009.126–127.

Zwart, T. (2012) Using Local Culture to Further the Implementation of International  Human Rights: The Receptor Approach.  Human Rights Quarterly Vol. 34, Number 2. pp. 546-569

Seibert-Fohr, A. (2001)Domestic Implementation of the International Covenent on Civil and Political Rights Pursuant to its article 2 para 2, Max Planck Yearbook of United Nations Law, Vol. 5, pp. 399-472.

Merry, S. E. (2006), Human Right and Gender Violence: Translating International Law into Local Justice, Chicago Series in Law and Society.

Ульяшина, Л.(2016) Международные стандарты и их имплементация в праве прав человека. Lambert Academic Publishing. – 485 с.

Ulyashyna, L. (2016) Human Rights Defenders – new actors in implementation.  Uniwersalne standardy ochrony praw chlowieka a funkcjonowanie systemow politycznych w dobie wyzwan globanych/red. naukowa prof. Jerzy Jaskiernia, Torun ́ pp. 416- 439

Ulyashyna, L. (2013) International Human Rights Standards: Problems of Legal Definition and Challenges by Application. Wpływ standardów międzynarodowych na rozwój demokracji i ochronę praw człowieka / red. naukowa prof. Jerzy Jaskiernia Tom 1, Wydawnictwo Sejmowe. pp.25-35.

“Свобода выражения мнения, собраний, и объединений”(2006).  Retrieved from http://humanrightshouse.org/Projects/ILIA_RU/BISH_RU/index.html

Примеры индивидуальных обращений (2008). Retrieved from http://humanrightshouse.org/Projects/ILIA_RU/BISH_RU/index.html

Права человека: международное Право и национальное законодательство (2011). Retrieved from http://humanrightshouse.org/Projects/ILIA_RU/BISH_RU/index.html

Индивид v. государство: практика обращения в договорные органы ООН применительно к РБ (2012). Retrieved from http://humanrightshouse.org/Projects/ILIA_RU/BISH_RU/index.html

Individual v. State: Practice on complaints with the United Nations treaty bodies (2014). Retrieved from http://humanrightshouse.org/Projects/ILIA_RU/BISH_RU/index.html

Индивид v. государство:практика обращения в договорные органы ООН Том II (2016) Retrieved from http://humanrightshouse.org/Projects/ILIA_RU/BISH_RU/index.html

Эффективность использования международных правозащитных механизмов в отношении Беларуси (2015). Retrieved from http://humanrightshouse.org/Projects/ILIA_RU/BISH_RU/index.html

Acknowledgements

This research is results of analysing and introducing generally available data at:

http://humanrightshouse.org/Projects/ILIA/index.html; and

http://ilia.humanrighsthouse.org.

The quotations from interviews of alumni due to anonymity are not individually listed in the bibliography.

The Projects and the ILIA Program have been supported by the Norwegian Ministry of Foreign Affairs; Matra/KAP Small Embassy Projects Programme, the Netherlands Embassy in Warsaw, The National Endowment for Democracy; the USA The German Marshall Fund of the United States, The Nordic Council of Minister’s Support Programme for NGOs in the Baltic Sea Region Council of Europe; Fritt Ord Foundation, Norway International Renaissance Foundation; Ukraine Irish Aid Konrad Adenauer Foundation Germany; ODIHR/OSCE/European Commission; Open Society Institute; France Civil Rights Defenders Department of Foreign Affairs; Trade and Development (DFATD) Canada; The Swedish International Development Cooperation Agency (SIDA); US Agency for International Development (USAID); German Embassy in Ukrain Khariv; Human Rights Protection Group U.S. Embassy in Ukraine; American Bar Association (ABA, Justice Defenders Program); OSCE Mission to Moldova; UN Development Programme (UNDP Moldova); Norwegian Mission of Rule of Law Advisers to Moldova (NORLAM); Stefan Batory Foundation; Poland Polish Ministry of Foreign Affairs via Polish Aid Programme; Forum Syd.

 

 

Comments

 

* The author of the paper is a co-author and an acting expert of both the Projects curricula and several courses of the Projects. Since 2006 until now, I manage the ”International Law in advocacy” Program, the Human Rights House Foundation, Oslo, Norway. All examples and data used in the Report are available in open sources. Only in some cases, I used my own archives and former publications.

** In this paper, I used the terms “post-communist” countries and “CIS countries” (the Commonwealth of Independent States) as synonyms for the countries of the former Soviet Republics, reappeared during and after the breakup of the Soviet Union.

*** It is worth referring to the main sources of inspiration for this paper and specifically:

  1. on the principle of universality in light of traditional values:

Jack Donnelly “The Relative Universality of Human Rights” (2007), Anja Seibert-Fohr
“Domestic Implementation of the International Covenant on Civil and Political Rights Pursuant to Its Article 2 Para 2” (2001), Tom Zwart “Using Local Culture to Further the Implementation of International Human Rights: The Receptor Approach” (2012),
Report: “Human Rights Standards: Learning from Experience” issued by the International Commission of Jurists & the International Service for Human Rights ICHRP, International Council on Human Rights Policy (2006), Vladimir Kartashkin
“Preliminary Study on Promoting Human Rights and Fundamental Freedoms Through a Better Understanding of Traditional Values of Humankind” (2011), Sally Engle Merry “Human Right and Gender Violence: Translating International Law into Local Justice” (2006), Abduhlahi Ahmed An-Naím, “Towards a Cross-Cultural Approach to Defining International Standards of Human Rights” (1992), Study on Promoting Human Rights and Fundamental Freedoms Through a Better Understanding of Traditional Values of Humankind, UN Human Rights Council Advisory Committee, 2012,A/HRC/22/71;

  1. on the Role of Lawyers and human rights education:

Report “Human Rights Lawyers at Risk” (2015) issued by the Human Rights House Foundation in cooperation with several international organizations and experts, Report of the UN Special Rapporteur Monika Pinto Report of the Special Rapporteur on the independence of judges and lawyers, 2016, A/71/348.

Endnotes

[1] Nowak, M. «Challenges to National Implementation of International Human Rights Standards –Background Paper WG I». Global Standards – Local Action. 15 Years Vienna World Conference on Human Rights. Eds: Benedek, Wolfgang and others. Wien-Graz, 2009.126–127.

[2] United Nations Decade for Human Rights Education (1995-2004): Report on achievements and shortcomings of the Decade and on future United Nations activities in this area. E/CN.4/2004/93, 25 February 2004, p.25.

[3] SECRETARY-GENERAL, IN ANNIVERSARY MESSAGE FOR WORLD CONFERENCE ON HUMAN RIGHTS, UNDERSCORES IMPORTANCE OF STRENGTHENING RELEVANT EDUCATION AT ALL LEVELS Retrieved from http://www.un.org/News/Press/docs/2008/sgsm11763.doc.htm

[4] КОНВЕНЦИЯ СОДРУЖЕСТВА НЕЗАВИСИМЫХ ГОСУДАРСТВ О ПРАВАХ И ОСНОВНЫХ СВОБОДАХ ЧЕЛОВЕКА, 26 мая 1995 года, преамбула.

[5] Burgenthal, Thomas. «The Evolving International Human Rights System», in International Law: classic and contemporary readings edited by Charlotte Ku London. 2009. Р. 289–319; Charnovitz, Steve. Nongovernmental Organizations and International Law. Ibid. Р. 117–137. Mathews, J.T. «Power Shift», Foreign Affairs,76, № 1 (1997). Р. 50–66.

Protestant Origins of Human Rights Challenged

This paper argues that certain core elements in Protestant theology are incongruent with human rights as they were understood by the 18th-century declarations. These declarations expressed a liberal understanding of society that would leave the individual a rather extensive sphere protected from government intervention. Protestant theology exacerbates the sinful nature of man and in order to do this it sets a very high standard for morality which eliminates the classical distinction between command and counsel (strict and loose duties). Such a distinction was the basis for limiting the intervention of government into the individuals’ private life. The absence of such a distinction does not oblige the state to intervene, but there is no generalized guarantee against such intervention. We are not arguing that Protestants cannot be liberals, but that they are not liberals in virtue of their religion and by moral principle.

First, we will give an outline of the discussion on the Protestant origin of human rights starting from Georg Jellinek going all the way to a recent defender of the theory in the person of John Witte. Many arguments have been compounded against the theory, but it is surprisingly tenacious. We will try to challenge the theory, as explained above, from a theoretical rather than a historical point of view, in order to show its incongruity. To do this we will discuss Luther’s conception of command and counsel and how this position reverberates in Protestant political philosophy and notably in such thinkers as Hugo Grotius and Samuel von Pufendorf. We will conclude with some consideration on the role of John Locke in establishing the liberal position of the 18th century declarations.

Protestant Origins of Human Rights

The idea that 18th century human rights could somehow originate in Protestantism was launched by Georg Jellinek in 1895. His dissertation, Die Erklärung der Menschen- und Bürgerrechte, Ein Beitrag zur modernen Verfassungsgeschichte, argued that Rousseau’s Contrat social could not be the source of The Declaration of the Rights of Man and of the Citizen adopted in France in 1789. He insisted that the model for this declaration was the American declarations and notably the Virginia Declaration adopted a decade or so before the French declaration. He argued further that freedom of religion in the American colonies was responsible for the idea to state universal human rights in a declaration. (Jellinek, 1895)

Jellinek is reacting to a view put forward by Paul Janet in his Histoire de la science politique (1887). Janet presents the declaration of rights as the very terms of Rousseau’s social contract. (Janet, 1887: 457) Jellinek argues that this could not be so, since Rousseau knows nothing about rights which individuals have before and independently of the state. In Rousseau’s state, individuals ony have those rights, which emerge from the general will. (Jellinek, 1895: 5) Jellinek concludes that the declaration must have another source and he finds it in the American declarations. He notes that such a declaration was demanded in the Cahiers de doléance and the first one was proposed by Lafayette, a war hero from the American War of Independence. He notably points to the Virginia Declaration (1776) as model for the French declaration, but he compares the French declaration carefully with several American declaration and concludes that both ideas and form derives from the American declarations. (Jellinek, 1895: 7-22). Emile Boutmy responds vigorously in the Annales des sciences politiques (1902 – Georges Fardis translated Jellinek’s dissertation into French that year, see Jellinek, 1902). These two points have, however, been conceded by scholars by now. (Rials, 1988: 352, 357; Gauchet, 1989: 14; see also Joas, 2003: 258-260)

He then asks how such ideas about declaring universal human rights came to the Americans and notes that they could not come from England, where only English rights were proclaimed. He also excludes natural law which, he says, had no problem approving slavery and such things. (Jellinek, 1895: 30-31) His own solution is to find the origin of such rights in the assertion of universal religious tolerance and freedom of thought. The first Protestant settlers refused ecclesiastical hierarchy and considered the church as a community of believers. Jellinek sees herein the seeds for a democratic polity. Since the individual believer had to relate directly to God without any hierarchical middle ways, Protestantism also emphasized individualism, and from this, he thinks, unlimited freedom of thought followed, which in its turn had to be proclaimed as a universal right. (Jellinek, 1895: 31-41) From this initial right several political rights came along. (Jellinek, 1895: 43) This relation between freedom of thought and political freedom was already noticed by Madame de Staël in her posthumous work on the French Revolution. (de Staël, 1871: 61)

It is not clear, however, neither in Jellinek nor in de Staël, how we get from the one to the others. Considering that Frederick II of Prussia, reportedly, could say, ”Argue as much as you will and about whatever you will, but obey!” (Kant, 1996: 18) without any apparent contradiction, the relation must be a rather loose one. For de Staël it is the free enquiry which leads to representative government. (de Staël, 1871: 61) It supposes that free enquiry in one area would lead to free enquiry in all areas and this would somehow make people think that they should have a say in political affairs. Jellinek emphasizes the absence of ecclesiastical hierarchy and religious individualism as decisive, and he seems to assume something similar, since specialization of other freedoms would somehow crystallize themselves around freedom of thought. (Jellinek, 1895: 43) Joas states frankly that the other rights do not emerge organically from freedom of religion, but he still wants to give it some preeminence as the foundation of the entire constitution. (Joas, 2003: 263)

Whatever the relationship might be between freedom of thought and religion and the other rights of man, it will lose much of its significance if Protestants showed little interest in religious freedom and tolerance. On this point Jellinek receives criticism from Ernst Troeltsch, who argues that Protestants churches had little such interest, while certain Protestant sects were more serious about religious freedom. Calvinism, which was the dominant Protestant denomination in the Colonies at this time, did only accept a limited kind of tolerance. According to Troeltsch, full acceptance of other religions was only embraced by spiritualists like the Quakers, Baptists and Roger Williams. They were the only one who could conceive freedom of thought and religion as an inborn human right. (Troeltsch, 1923: 758 ff.) Jellinek takes account of this in the second edition of his work, but insufficiently, Troeltsch suggests. He would attribute a much larger importance to Enlightenment thinkers. (Troeltsch, 1923: 764-765 see the note.)

In fact, religious toleration was rather limited in the American colonies. Troeltsch notes that the New England Puritans wanted free religious communities and forced no one to enter the church, but they did not tolerate any other church or denomination and important citizen’s rights was conditioned on membership of the church. (Troeltsch, 1923: 759) Ralph E. Pyle and James D. Davidson present a schematic overview regarding toleration of dissent and restrictions on citizens’ rights in 17th and 18th century colonial America. In most cases there is no toleration of Catholics. In some cases nonconformist, Quakers and Baptists are not tolerated. Office-holding and voting rights was nearly always denied Catholics and often reserved for a particular denomination or more generally for Protestants. (Pyle & Davidson, 2003: 66-68) More colourfully, Kenneth C. Davis denounce what he calls the myth about religious tolerance in colonial America. The Puritan fathers did not tolerate opposing views. Dissidents such as Roger Williams and Anne Hutchinson had to leave. Catholics and other non-Puritans had to leave as well. He recounts the misfortune of four Quakers who were hanged in Boston in 1659-1661 for insistingly returning to the city. Catholics were discriminated against regarding property and voting rights. As late as 1834 a Catholic convent was burned to the ground by an anti-Catholic mob. In the 1844 Bible Riots in Philadelphia two Catholic churches were destroyed and two people died. In the same period Mormons were also victims of persecution and massacre. (Davis, 2010)

Some states, however, did exercise a rather general tolerance; like Rhode Island, founded by Roger Williams, and Pennsylvania, founded by William Penn, a Quaker. In the first everybody was tolerated, but voting and office-holding was reserved for Protestants. In second all monotheists were tolerated, though Catholics were not tolerated for a short period. They were nonetheless excluded from office until 1776. (Pyle & Davidson, 2003: 66-68) These were the communities which according to Troeltsch and later on Jellinek saw as the champions of a human right to freedom of thought and religion. To this Gerhard Ritter answers that it is not possible to trace the human rights declaration of 1776 in Virginia to the demand for religious tolerance in the American colonies. The 17th-century charters from the founding of the colonies do not show any general human rights. They are about royal privileges and traditional English freedoms. They suppose the colonies to be essentially Christian communities. He adds that the article on freedom of thought was a latecomer to the Virginia Declaration and not without resistance from the tenants of state churches. (Ritter, 1949: 240) To this, Hans Joas adds that a staunch defender of religious freedom such as Thomas Jefferson was a Deist and no direct heir to Puritan thought. (Joas, 2003: 262; see also Davis, 2010) As Troeltsch suggests, Enlightenment thought is probably a more likely source of Jefferson’s commitment to this cause.

At this point one would say that this discussion is by now long dead and buried, but somehow phantoms are still hanging around refusing to disappear. Valentine Zuber gives a useful outline of how Jellinek’s ideas were received by French Protestants. (Zuber, 2014) The commemoration of the 400 years of the birth of Jean Calvin in 1909 was a great occasion to link the rights of man and the citizen directly to Calvin. Emile Doumergue proclaims that the Declaration of the Rights of Man and the Citizen comes neither from America nor England, but, first of all, from Calvin’s French disciples and Calvin himself. (Doumergue, 1910: 22-23) The position is argued in more detail by Jules Emile Roberty. He believes that ideas about human rights should be traced back to the Huguenot disciples of Calvin generally referred to as the Monarchomachs. They defended, according to him, the rights of the people against absolute rulers. They were defeated in France, but their ideas poured into Puritan thought in England and travelled with them to America, and they travelled back to France at the time of the American Revolution. (Roberty, 1910: 33-39) This connection between Calvin and human rights is greatly nuanced by Roger Mehl writing in 1978. He admits that neither Luther nor Calvin took any special interest in human rights. On the level of discourse such a connection is not discernable, but he thinks it can be made at the level of events. The fact that the Reformation broke the unity of faith that had hitherto existed, leads, according to him, to freedom of thought and therefrom to the other rights. (Mehl, 1978)

Mehl is not prepared to admit that Protestantism had no special relation to human rights. We are left with the idea that freedom of thought and religion, which was caused accidentally by the Reformation, is some kind of paradigmatic right from which the other rights are created by analogy. John Witte, writing in 1998, take up the same idea and go as far as to describe the Reformation as a human rights movement. (Witte, 1998) He pursues the same program in more nuanced ways in his 2007 book on The Reformation of Rights, Law, Religion, and Human Rights in Early Modern Calvinism. (Witte, 2007) We will try to dispel these phantoms of a long-deceased theory with a different kind of argument, which, in our view, grips the problem by its roots. Approaching the matter from the concept of rights itself, instead of emphasizing particular rights which might have had more or less prominence in various Protestant writers, will make clear that core tenets of Protestant theology is incongruent with the concept of rights deployed in the 18th century declaration of rights.

The Concept of Rights in the 18th-Century Human Rights Declarations

However important Huguenot writers were for developments in England and later on in America, the notion of rights had been developed to a much higher technical level in earlier scholastic tradition, and thinkers on both sides of the Channel could draw on this tradition. William of Ockham and Conciliarist thinkers like Pierre d’Ailly, Jean Gerson, John Mair and Jacques Almain employed a permissive notion of rights developed by the canon lawyers of the 12th century. (Jacobsen, 2011: 169-176, 189-199, 125-128) The permissive conception of rights equal rights with permissions, such that permissions presuppose duties. We are permitted, in the strict sense, to do everything which is not commanded or forbidden. If no duty commands us to take a walk in the park at this particular moment and there is no duty forbidding us to do so, then we are free to do it. We can do it or not as we like. This is permission which is also called a right. Upon this basis the above mentioned writers construct a consensus theory of government. Since there are no duties concerning property and government (at least after the Fall) these matters must belong to the area of permissions and people would then have to agree about how to settle these matters. They agree to share up the common property and to institute judges and governors. This scheme probably had as its purpose to bolster up the secular power against the Church. Having an independent legitimization in consent and its own area of competence, the secular power could avoid being a subsidiary of the Church. What Huguenot writers did as something rather new was to turn the very same scheme against the secular power (although John Mair had already done something similar in a Scottish context). However, the Huguenots did this opportunistically, and as soon they got one of their own on the French throne in the person of Henry IV they returned to the principle of authority.

Ockham and the Conciliarist writers had the idea, common in theological thought at the time that one should distinguish between mortal and venial sin. Only mortal sin should be enforced by the secular power. To mortal sin corresponded a limited number of duties such as not to kill, rob, etc. The result was that the secular state had limited functions, and seen from the perspective of the secular power the individual had a very extensive liberty. Everything not within the sphere of the secular power was left to the individual or the discipline of the Church. The Church had a huge social power, of course, but at the time it was exercised rather leniently. The secular power therefore left the individual with a large free space in the form of permissions. This is exactly what the18th century declarations of rights do as well. They are centred on freedom. They limit the functions of the state and create a space of liberty where the individual is free to do as he pleases. The right to publish one’s opinions (freedom of the press) limits the way the state can intervene in this kind of activity and permits the individual to exercise the very same activity. He is not obliged to do so; it is an option he has to be used in case he wishes to do so. (Jacobsen, 2011: 271-278, 281-286)

In order to delimit the sphere of the secular power, we would need a way to distinguish between duties which are enforceable by the state and other kinds of duties. Augustine of Hippo spoke about command and counsel, while modern philosophers would speak about strict and loose duty. More elaborate distinctions between duties were also possible, Gerson thus distinguished between the prescriptions of justice with strong obligation incurring mortal guilt and eternal death, lesser prescriptions with little obligation such as to honour one’s parents, slight obligation such as to observe good manners and the smallest obligation concerning perfection. (Gerson, 1706a: l. 5, c. 61-63) Only the duties of justice were enforceable by the state, while the others were considered too difficult to ascertain precisely or too demanding for ordinary man. Gerson, and his fellow theologians of the Sorbonne, had a rather forbearing attitude to human frailty. This would change radically with Martin Luther, and at the same time he renders useless the distinction which made it possible to establish for the individual a guaranteed sphere of freedom.

Martin Luther[1]

Luther does not as such abolish the distinction between command and counsel, but he only acknowledges one counsel, namely celibacy. According to the ordinary understanding of the distinction, counsels are about these things Christ teaches in Matthew 5: not to take revenge, not to return evil with evil, not to be litigious, giving one’s coat when one’s tunic is taken, turning the other cheek, going another mile with the person who obliges you to go one mile, not to resist evil persons and to be benevolent towards your enemies. In Luther’s view all this was not counsels, but commands. (Luther, 1889: 580-581) Among the counsels the ordinary view also adds poverty, obedience and celibacy. Luther reinterprets poverty spiritually as detachment from worldly things and saps the basis for monastic life. Obedience is evangelical obedience and incumbent on everyone. Only celibacy survives, since both Christ and Paul expressly praise celibacy. Celibacy, however, does not make anybody perfect, but can be advised for other reasons. (Luther, 1889: 583-644)

What Luther is saying is that the limits imposed as sufficient for salvation has been set too low, for what is in reality commands has been interpreted as counsels. The traditional view considered only the transgression of the duties of justice as a mortal sin barring one’s way to heaven. This is clearly expressed in the censure of Luther’s work by the theologians of the Sorbonne. If the duty not to revenge oneself was not just a counsel, but a command the Christian law would become too burdensome. (Luther, 1889: 592-593) This is uninteresting for Luther for he is not concerned with the accomplishment of the commands, but they should instead reveal our impotence and drive us into the arms of Christ. Only faith can save us and faith is a free gift from God. The utter impossibility of the commands should disclose for us how profoundly sinful we are and make clear for us that only God’s grace can save us. (Luther, 1889: 208-209, 211; Cristiani, 1946: 74)

This stress on human sinfulness and our inability to overcome it by our own means is a key feature of Protestant theology and this feature has some interesting consequences for political philosophy. Luther is not saying that the commands should not be accomplished, but any attempts to do that will fail if it is not guided by faith. Those who have faith will have no need of the law; they will accomplish the law spontaneously. There are, however, few such people, so the law has two functions. It should show us how incapable we are to fulfil the law perfectly thus making us humble and receptive to God’s message. The other function is restraining keeping all those who are not true Christians, that is the majority, from doing evil deeds. This second function belongs to the secular power, and it should preserve peace, punish sin and restrain evildoers. (Luther, 1889: 606-608; 1888: 213-214; 1900: 253-268) We must assume that sin is here understood as the external breach of the commandments, since the secular power only rules over the external affairs in this life such as the life and property of persons. This power cannot command us to believe something in particular, since people’s beliefs are out of its reach. (Luther, 1900: 262-268)

This would suppose a distinction between those prescriptions which can be enforced and those which cannot, such as believing or being generous. The enforcement of the secular power should preserve peace and repress sin. In some sense this is not very different from what the Parisian doctors would say, but in between the notion of sin has changed. Luther renders the notion of counsel utterly useless and eliminates at the same time the distinction between mortal and venial sin. (Holl, 1932: 211) There being no distinction between mortal and venial sin, all sins, at least in their external expression becomes punishable by the state. Before, sin, that is mortal sin, was a minimal standard for salvation. Now, sin is a much more demanding notion. We would then expect the Protestant state to be much more invasive, while the Sorbonne theologians would be much more lenient and indulgent towards human frailty. Luther actually castigates in this spirit the existing Church for laxity. They do not preach, teach, forbid or punish anything. He insists that the spiritual power should punish and correct adultery, indecency, usury, greed, worldly luxury, unnecessary dress and the like with excommunication and legal measures. (Luther, 1888: 255) Max Weber notes something similar when he says that the Reformation did not do away with ecclesiastical power. It replaced a formal, but in fact barely sensible domination, with an extensive domination penetrating into both the domestic and public domains in order to regulate the whole conduct of life. (Weber, 1999: 20) According to Troeltsch, Lutheranism left it to the secular power to exercise this control, while the Calvinist congregations exercised this control themselves. (Troeltsch, 1923: 629)

Protestant Political Philosophy

This more invasive state is also recognizable in Protestant political philosophy. Even though the distinction between command and counsel returned to prominence it was considerably reworked. A distinguished Protestant political philosopher is Hugo Grotius. He adhered to Arminianism, an outgrowth from Dutch Calvinism. Arminians maintained that only faith could save, but allowed man some freedom to accept or reject God’s grace. However, this does not save man from total depravity. The difference from orthodox Calvinism lies only in the remedy for this depravity. In spite of this slightly more lenient position, Grotius maintains the overall position outlined by Luther. All in all Grotius presents a political philosophy compatible with a rather illiberal society.

Grotius adopts a permissive conception of rights. These rights are permissions seen from the perspective of a range of duties. (Grotius, 1646: I.1, 3-4 II.2-3, 20, III.4, 10) These duties can have different origins. Some originates in natural law as inherent in man’s social nature. Others depend on divine will and originate in divine positive law. (Grotius, 1646: Prol. § 6-9) Other again stems from human or civil law established by the social contract. Just as they can enter the social contract they can also oblige themselves further by particular contracts. (Grotius, 1646: Prol. § 16-17, 40; II.15 vi.1 p. 265) These different origins of human obligations relate to each other a bit like Russian dolls. The innermost duties of the natural law leave a certain space of freedom to individual man, but divine positive law can restrict this freedom further (without contradicting the duties of the first law). The remaining space of liberty can, however, be further restricted by human law and particular contracts. What is important to notice here is that there is no limit to how this freedom can be restricted.

Grotius does distinguish between different kinds of duties, but this does not lead to any important limits on state power. He does exclude people’s beliefs and virtues such as generosity, gratitude and compassion from public enforcement as far as they are inner states. (Grotius, 1646: II.20 xx.1 p. 329) He does distinguish between justice, strictly speaking, which can be exercised between equals in the natural state and duties which can only be enforced by a superior in a state. These duties are self-regarding virtues and charity and both of them can be enforced by the state. (Grotius, 1646: II.25 iii.2-4; I.2 i.3 p. 16) He emphasizes that the state could use amendatory punishments in order to make people better, and he mentions an example from the Locrian Code where someone was punished for drinking wine against the prescriptions of the doctor. (Grotius, 1646: I.1 ix.1 p. 3-4) He is not saying that they should always do this, but there is clearly no general limit that would bar the state from doing it.[2]

This position does not change very much when we consider a Lutheran political philosopher such as Samuel von Pufendorf. He espouses the same permissive rights. He explains that some things are lawful or indifferent things, and as such they are a medium between commands and prohibitions, but he specifies that they are not like lukewarm water, which partakes in both hot and cold. The indifferent should be distinguished from good and bad and does not partake in any of them. Indifferent actions are optional and can be performed as one pleases. The laws permit what is neither commanded nor prohibited, and in this way it defines a general liberty modifiable by new laws. (Pufendorf, 1716: I.2.9; I.4.7-8; I.3.14; I.7.2; I.6.15)

He distinguishes between perfect and imperfect obligation. The first kind of duties is necessary for the very existence of society, while the others only contribute to its well-being. The first can be asserted by force, while the second cannot, and he mentions piety, reverence, gratitude, humanity and beneficence. (Pufendorf, 1716: III.6.10; I.1.19; I.7.7-8) It seems like the first kind of duties is enforceable in their own right even outside the state, while other kinds of duties like assisting people in need, which is only obliging imperfectly, can be enforced by the state and then turned into a perfect obligation. (Pufendorf, 1716: II.6.5-6) He explains that law is not only about strict justice incurring perfect obligation, but also concerns the self-regarding virtues, and that is the reason why laws are often made against drunkenness, sumptuousness and the like. In this way many duties imposing only imperfect obligation are strengthened by laws. (Pufendorf, 1716: I.6.4; III.3.8) [3]

We have here the same general scheme as with Grotius. We are obliged to all virtues by universal justice and everything outside the mind is in principle enforceable by the state. Some duties suppose a particular attitude, such as generosity, and cannot as such be enforced, but the external part of it, namely helping the needy can very well be enforced by the state. However, some duties are such that they can be upheld in the state of nature, and they are inherently perfect, while other (external) duties can only be perfect in virtue of the state. The distinction between enforceable and non-enforceable duties now turns only on the external and internal side of the duties, such that only the attitude is inherently out of reach of the state. The distinction we found with the Sorbonne theologians did not operate uniquely on this count, but delimited materially the proper functions of the state, such that a large amount of external behaviour was out of reach of the state.

John Locke subscribed to this view as a young man (Locke, 1967) but later he made an important move which somehow returned the situation to the time of the Sorbonne theologians. Locke reintroduced the distinction between strict and loose duties such that the functions of the state were limited materially. (Locke, 2006: 140-144, 283, 235, ; 1870: 14, 29; King, 1830: I p. 206-215) The context was, of course, different now. The huge social power of a unitary Church had disappeared, and this added a new dimension to freedom. It was the life, property and freedom, religious freedom included (to some extent) that should be protected against the state, and not the state against the ecclesiastical power. Like many of his contemporaries he had moved away from salvation from faith alone and embraced some version of work righteousness. (Baker, 1985: 129-130, 133) We are not suggesting that work righteousness was the cause of this move, but Locke did no more have a theology which would impede such a move. The reason probably has to be found in the political context of the time.

Conclusion

In order to highlight human sinfulness Luther set the bar much higher. The prescription of the Sermon of the Mount (Matthew 5) is not taken as two levels of obligation, one for ordinary people, and one for the perfect. We should never take revenge, never return evil with evil, never be litigious, always give one’s coat when one’s tunic is taken, always turn the other cheek, always go another mile with the person who obliges you to go one mile, never resist evil persons and always be benevolent towards your enemies. In fact, we should not even think about doing evil things. Clearly, no one is able to do this, and this is exactly Luther’s point. However, in setting the bar at such a high level, he also abandons the individual to the secular power which is entrusted with the task to ensure the external compliance with this ideal. We no longer have any other criteria for limiting the extent of the secular power. This is the price to pay for exacerbating human sinfulness. This appears as a core element in Protestant theology, and this would bar Lutheranism, Calvinism, Arminianism, most Baptists and other Protestant denominations subscribing to the total depravity of man, from establishing general material limits to the secular power. The only distinction they could make was one between belief as something of the mind and other matters, and this could lay the foundation for freedom of religion, as it did with Roger Williams, but this would still leave the high moral standards to be enforced, thus making a more invasive state possible. It is difficult to see how the other freedoms could be produced by some kind of gemmation from religious freedom. We are here far from the liberalism of the 18th century declarations. They left moral matters out of the realm of the state.

One might object that the Quakers were a special case, challenging the notion of total depravity, but they are, on the other hand, notoriously uninterested in theoretical questions, and therefore an unlikely candidate for having developed the theoretical language of universal rights. Even though they are an outgrowth of Calvinism it is disputable to which extent they are Protestants. What we have tried to argue here is that core Protestantism is an unlikely originator of universal human rights in the 18th century sense. It does not caution an extensive space of liberty as they do.

Bibliography

Baker, J. Wayne (1985). “Sola Fide, Sola Gratia: The Battle for Luther in Seventeenth-Century England”, The Sixteenth Century Journal, Vol. XVI, No. 1: 115-133.

Boutmy, Emile (1902). “La Déclaration des droits de l’homme et du citoyen et M. Jellinek”, in Annales des sciences politiques, IV (July 15): 415-443.

Cristiani, Léon (1946). “Luther et la Faculté de théologie de Paris”, Revue d’histoire de l’Église de France. Vol. 32, No. 120: 53-83.

Davis, Kenneth C. (2010). “America’s True History of Religious Tolerance”, in Smithsonian.com (October). URL.: http://www.smithsonianmag.com/history/americas-true-history-of-religious-tolerance-61312684/?no-ist (Consulted 30/09/2016)

De Staël (1871). “Considérations sur les principaux événements de la Révolution française”, in Œuvres posthumes de madame la baronne de Staël-Holstein. Paris: Firmin Didot Frères.

Doumergue, Emile (1910). “Calvin, un grand Français”, in Fête Commemorative du Quatrième Centenaire de Jean Calvin, Matinée Littéraire et Artistique célébrée dans la Grande Salle des Fêtes du Trocadéro. Paris.

Gauchet, Marcel (1989). La Révolution des droits de l’homme. Paris: Gallimard.

Gerson, Jean (1706): “Vita spirituali animae”, in Opera omnia, Vol. III. Antwerp: Ellies Du Pin.

Grotius, Hugo (1646). De iure belli ac pacis libri tres. Amsterdam: Johannes Blaeu.

Holl, Karl (1932). “Der Neubau der Sittlichkeit (1919)”, in Gesammelte Aufsätze zur Kirchengeschichte, Vol. I Luther (6th ed.). Tübingen: Verlag I.C.B. Mohr – Paul Siebeck.

Jacobsen, Mogens Chrom (2011). Three Conceptions of Human Rights. Malmö: NSU Press.

Janet, Paul (1887). Histoire de la science politique dans ses rapports avec la morale, Vol. II (3rd ed.). Paris: Felix Alcan.

Jellinek, Georg (1895). “Die Erklärung der Menschen- und Bürgerrechte. Ein Beitrag zur modernen Verfassungsgeschichte.” Staats- und völkerrechtliche Abhandlungen, I.3. Leipzig: Duncker & Humblot.

Jellinek, Georg (1902). “La Déclaration des droits de l’homme et du citoyen : contribution à l’étude du droit constitutionnel moderne”, in Bibliothèque de l’Histoire du Droit et des Institutions. Paris: Albert Fontemoing.

Joas, Hans (2003). “Max Weber und die Entstehung der Menschenrechte, Eine Studie über kulturelle Innovation”, in Das Weber-Paradigma, Studien zur Weiterentwicklung von Max Webers Forschungsprogram. Tübingen: Mohr Siebeck.

Kant, Immanuel (1996). Practical Philosophy. Cambridge: CUP.

King, Peter (1830). The Life of John Locke, with extracts from his correspondence, journals, and common-place books, vol. 1-2. London: Colburn & Bentley.

Locke, John (1870). Four Letters on Toleration. London: Ward, Lock, and Tyler.

Locke, John (1967). Two Tracts on Government. Cambridge: Cambridge University Press.

Locke, John (2006). Political Essays. Cambridge Texts in the History of political Thought. Cambridge: CUP.

Luther, Martin (1888). “Von den guten Werken” (1520), in D. Martin Luthers Werke, kritische Gesammtausgabe, Vol. 6. Weimar: Hermann Böhlau.

Luther, Martin (1889). “De votis monasticis Martini Lutheri iudicium” (1521), in D. Martin Luthers Werke, kritische Gesammtausgabe, Vol. 8. Weimar: Hermann Böhlau.

Luther, Martin (1900). “Von weltlicher Oberkeit, wie weit man ihr Gehorsam schuldig sei” (1523), in D. Martin Luthers Werke, kritische Gesammtausgabe, Vol. 11. Weimar: Hermann Böhlaus Nachfolger.

Mehl, Roger (1978). “La tradition protestante et les droits de l’homme”, in Revue d’histoire et de philosophie religieuses, Vol. 58, No 1: 367-377.

Pufendorf, Samuel von (1716). De jure naturae et gentium libri octo. Frankfurt am Main: Friedrich Knoch & Söhne.

Pyle, Ralph E. & Davidson, James D. (2003). “The Origins of Religious Stratification in Colonial America”, in Journal for the Scientific Study of Religion, Vol. 42, No. 1 (March): 57-76.

Rials, Stéphane (1988). La Déclaration des droits de l’homme et du citoyen. Paris: Hachette.

Ritter, Gerhard (1949). “Ursprung und Wesen der Menschenrechte”, in Historische Zeitschrift, Vol. 169: 234-263.

Roberty, Jules Emile (1910). “La Réforme française et les ‘Droits de l’Homme’”, in Fête Commemorative du Quatrième Centenaire de Jean Calvin, Matinée Littéraire et Artistique célébrée dans la Grande Salle des Fêtes du Trocadéro. Paris.

Troeltsch, Ernst (1923). “Die Soziallehren der christlichen Kirchen und Gruppen”, in Gesammelte Schriften, Vol. 1: Tübingen: J. C. B. Mohr.

Weber, Max (1999). Die protestantischen Ethik und der Geist des Kapitalismus. Potsdam: Institut für Pädagogik der Universität Potsdam. URL: http://nemendafelog.hi.is/Gaia/Articles/Protestantische_Ethik.pdf

Witte, John (1998). “Law, Religion, and Human Rights: A Historical Protestant Perspective”, in The Journal of Religious Ethics, Vol. 26, No. 2: 257-262.

Witte, John (2007). The Reformation of Rights, Law, Religion, and Human Rights in Early Modern Calvinism. Cambridge: CUP.

Zuber, Valentine (2014). “L’origine protestante des droits de l’homme, La controverse entre Georg Jellinek et Emile Boutmy et ses résonances dans le protestantisme réformé français (fin XIXe-début XXe siècle), in L’identité huguenote, Faire mémoire et écrire

 

Endnotes

[1]            This and following sections reproduces ideas presented in chapter 8 of Jacobsen, 2011.

[2]           For a more detailed interpretation, see Jacobsen, 2011: 216-225.

[3]           For a more detailed interpretation, see Jacobsen, 2011: 225-233.

Brexit Coup d’Etat: Tracking the Overthrow of EU Rule of Law in Britain

Historical Note

This analysis was researched and written days before the snap June 8 UK election which was about to lock in the electoral minority of the ‘Brexit referendum’ with no public understanding of the immense historical stakes and dominant powers involved behind the political scenes. Least of all recognised was that the hard Brexit led by the now minority-government Tories allows massive de-regulation of the most powerful transnational private financial and agri-food interests in the UK and the EU. Yet no sooner had I completed the body of the following analysis than the London terror attack struck on Saturday night June 3, with PM Theresa May pointing at all opposition who sought causal understanding of the terrorist attacks as showing “far too much tolerance”.  The first pages of the analysis below bring this pre-election turn of events into explanation of the slow-motion ‘Brexit coup’ that continues today before it is fully understood. While the June 8 2017 election turned against the Tory-May government as anticipated by this June 5 diagnosis in media res,  the global struggle for life-protective law still remains under more systemic threat than since 1945. The purpose of this publication (the article has  been published widely in post-election form) is to share with fellow scholars how thinking-through within the immediacy of events can make an historic difference before a managed turning point of history is instituted into a no-turning back de-regulation attack on life-protective laws and common life assets to serve only very powerful financial interests with the public and opposition kept blind to, in fact, the biggest single attack on the civil commons of Britain in its history.

 

In the Midst of the London Terror Attack

It is June two days before the snap June 7 UK General Election is set to lock in a referendum to leave the European Union unsupported by a vast majority of British voters and – with little or no notice – reversing 50 years of evolved financial, labour rights and environmental regulations. These little discussed facts are spelled out in depth ahead. All the dots are joined from the start of the Leave campaign whose overthrow objective, strategists and behind-the-scenes money and interests are only beginning to be known.

It might seem too late for British voters to do anything about it, but much that is unexpected has occurred since the snap election was called and whited out in the press until recent days. The 24-point lead for new PM Theresa May and the Tories over grass-roots Labour and Jeremy Corbyn long seemed a sure thing, and so it was planned. But the lead has collapsed towards less than a few points and still dropping.  Then the London terrorist massacre on Saturday night June 3 struck on cue. For the public was awaking to the dressy mock-up Margaret Thatcher, and the rising Jeremy Corbyn opposing her is a near unique leader in British politics – an honest man based on a grass-roots movement for workers and the poor.

 

 

The Corbyn Labour Threat

Corbyn is not only honest, which none have denied. He has showed himself over a year capable of standing up to a non-stop corporate media barrage of official loathing. He has not backed down from the near public ruin of his grass-roots movement in which war-criminal Tony Blair and his ‘New Labour’ ilk have led in trying to sabotage his movement – barking out front, ostentatiously resigning from cabinet, tearing apart the reclamation of the Labour Party from the corporate boardrooms where it had become Blair’s Murdoch-press lap-dog and a neo-liberal shell. The reason Corbyn was and remains an enemy of the ruling castes in the media, politics and the boardrooms is that he unapologetically stands for traditional socialist values. His program is not contaminated as almost everywhere else by trendy post-modern culture, saucy relativism and politically correct diversions from economic life substance. Even worse to official media-and-political culture and its submergence in capitalist globalization with no alternative, Corbyn and his politically grounded movement actually stands for British workers’ interests, the public sector, social services, and environmental safeguards as developed within the European Union – all of which are on the chopping block now in Britain and across the world.

 

 

The Ruling Agenda

The problem is that majority of citizens in the world support these long-developed and popular social infrastructures and life standards. So the only way of continuing to defund, privatize and erase them is by pretending there are much more modern and flexible marketable versions for corporate and bank profit. One way or another, and there are many ways, this process consists in historical reversal and laying waste to over a century of social evolution and life standards as the ruling agenda of establishment political parties in power. This hidden agenda has increasingly spread and ruled the world. All the degenerate trends of extreme inequality, private money power over all, rising youth unemployment, pervasive state corruptions, massive dispossessions, override of long-established workers’ rights, and multiplying ecocidal production and products stem from it.  The vast profile of one-way degeneration of social systems across borders is, however, never connected across the dots by corporate media, states or the academy itself. Rather the underlying agenda euphemized as ‘globalization’ is put on fast-forward.

 

 

New Right-Wing Nationalism is Another Brand for the Same Hidden Agenda

It may seem that the erupting new ‘nationalist’ movements in US and Britain, Eastern Europe and Russia, and so on, are the great swing back against corporate and bank globalization. This is the Great Illusion of our time. What is hardly yet seen is that, in fact, these ‘nationalist’ movements, as in Tory Britain or Trump US racing ahead today, do nothing to connect or to solve any of these life-and-death social system problems and the cumulative pollutions and razzings of organic, social and ecological life organization across the globe. They are only a speed up of the global eco-genocidal processes under new operations and pretexts of new national recovery and freedom. Yet always the same transnational corporations and banks make even more money than before, mostly from transferring public wealth to themselves by vast tax-cuts, increased subsidies, steep cut-backs on social services and spending, and elimination of everything that is not needed for short-term profit cycles. Of course the opposite is pretended in many ways varying with cultures, but always good for the working people. Still, one can always tell the real agenda by whether or not the ecocidal processes and products are effectively ruled out rather than accelerated in fact, and whether or not societies are so governed that more citizens become better off in life work security and free development rather than the opposite in fact.  This is where the facts as opposed to pervasive system rhetoric and claims show systemic degeneration and dispossession in human and ecological life terms. Seek exception in scientific fact. Seek anywhere that Tory (or Republican) rule meets even one of these problems rather than diverting from them in endless ways – most of all today, by Islamic terrorists. They are the ever-recurring Enemy to be waged war against – and typically is when the popularity of the ruling party is dangerously in question.

 

 

London Terror Spectacle 5 Days before Election as Brexit-Tory Polls Collapse  

The June 3 massacre of innocent and unarmed Saturday revellers on iconic London Bridge and Borough Market came at such a time. PM Theresa May and Tory party polls for the snap June 8 national election were in free fall as Corbyn Labour support unexpectedly and dramatically rose by over 20 points from the surprise Spring date that the new and secretively advised PM May had called against all prior commitment and earlier schedule of May 7 2020. Although only 7 people died – in Moscow at the same 9 people were murdered without much notice – the absolute panic of the central city of London and Europe was unprecedented.  A white van ran over people on London Bridge’s festive and pub-crowded Saturday night, and many were seriously injured – though fewer than in US drone or air strikes happening in Arab countries on a regular basis. The modus operandi was quintessentially monstrous in action. It could have come from an ISIS video – of which there has been many with no evident interruption by the immense counter-terrorist operations, advanced electronic capabilities, and ever-rising budgets for war upon ISIS terrorists.  The three soon-dead men were maniacal as if drugged, but no drug tests were ever reported. They not only viciously ran over as many people as they could with the signature white ISIS van in the 10 PM Saturday night happy hour, but they leapt out of this careening kill van with long Arab stabbing, cutting, slitting throats, multiply stabbing one young women, and – in short embodying the most murderous nightmare conceivable on all in London and around the world soon watching the globally televised aftermath including the dead bodies.

 

 

The Most Basic Questions Are Never Asked

Strangely, the suicide murderers wore fake suicide vests, never explained. Certainly the theatrical touch fitted the stereotype for both sides. Yet no-one in all the total coverage everywhere ever mentioned the abundant evidence of US-led funding, arming and orchestration of ISIS – although the mystery still remained of how their original appearance in spanking-new white vans lined to the horizon waving machine guns could have escaped the notice over the endless parade in a highly surveilled open desert area not far from Israel’s borders. In any case, the horrific downstream event and mysterious origins and orchestrated funding, training and arming of the very same terrorist organization perpetrating one atrocity after another with uninterrupted e-video broadcasts and propaganda over years were all unmentioned in all the allied analysis from the major networks across the globe. Only the international outrage and absolute denunciation pouring in and out from every quarter continued around the clock for days all the way to the two days left before the election. Since the main question was and remains how to stop these horrible terrorist spectacles, there was no time for causal analysis. There never is. Somehow the evidentiary matters of including who funded, armed, trained and orchestrated the terrorists are never investigated by those who report on and benefit from the terror attacks. Somehow the terrorists’ very accessible propaganda, videoed columns of ferocious operatives, internet movies of killings, and strange coincidence of attacks with falling popularity of state leaders are not connected by anyone in official society or mainstream media or even scholarly journals.

That all this has kept happening from years ago in full view of television and internet audiences around the highly militarized Western world is not an issue which is publicly raised. Even when the murderous terrorists have been known and identified immediately afterwards, from the 9-11 bombings on, still there are no questions in the pervasive media coverage of the events, including in the June 3 London massacre. How they were and are identified so very quickly, even after such an historic surprise attack as 9-11 and even when the bodies of the alleged terrorists have been completely incinerated, how and why are these issues never mentioned?  Cui bono? – the first question of forensic justice – is never posed of anyone after the murderous terrorist spectacles. Failing parties and leaders who benefit enormously from such show-stopping distractions which put them in far more command of popular support and power than before the attacks, are never even slightly exposed to this question.  It is taboo to do so. Not even opposing politicians dare to ask the question. This gives us the clue to why all the other issues are not raised.  No such basic forensic question is ever posed because it cannot be publicly asked without every media of record accusing the questioner of folly or menace, thus perfectly diverting the issue again from the ruling taboo subject. There is no evident way through this closed circle. It is foolproof. So it follows that this is well known in ruling circles as well as by those interested in truth. Why would it not be used by a national regime whose public support is falling just before an election?

Free-Falling Tory and PM Polls and the London Terrorist Attack

Scientific hypothesis looks for disconfirming evidence more than confirming evidence in order to test it. This is why science works when it does. It takes all the relevant facts into account, forms an hypothesis, and tests it against the best possible counter-evidence.  (Corporate science and regime propaganda do the opposite. They look only for what confirms their claims to profit them. So coming just 5 days before the snap British general election which her regime called when it was 24 points ahead in the polls – now continuously falling days before election – this  regime has very good cui bono reason to re-set the polls upwards.  The known best way to do this with no questions asked is for a terrorist attack to occur on the regime. A terrorist attack usually guarantees a spike of citizen solidarity with national government, from France to Turkey to 9-11 Bush US. No-one dare pose the cui bono? Question in any case. It is known that a grisly terrorist attack, and a strong condemnation of it from the regime in power, along with allied regimes in unanimity, will produce a significant rise in the next poll. In this case, the poll of the June 8 British general election comes less than 5 days later.  This does not mean that the front political leader, now – PM Theresa May, the longest Home Affairs minister in memory, plans the terrorist attack, or even knows about it. It would be better that she did not, so as to carry through without compromise or leak. But she knows the territory of Home Affairs very well and the dark state’s capabilities, as well as British public opinion over many years as a cabinet minister.

If her polls are suddenly collapsing, as the polls of the long-belittled Labour leader Jeremy Corbyn rise just as fast, it makes very good sense for her regime to find a terrorist attack incomparably useful just before the election. She can stand tall and resolute as the lead warrior of the British people, like Margaret Thatcher against the Generals of Argentina over the Falklands. But here the enemy is far more immediate, visibly evil and mass murderous before our eyes – the archetypal enemy of Islamic terrorism, threatening and murdering Britons inside the very celebrating centre of their most populous and globally popular city, spreading mass panic to thousands in a barbarously brutal killing and wounding rampage that no-one will ever forget. It also provides the ideal opportunity to excoriate the poll-closing Jeremy Corbyn and Labour, who can be insinuated into the terrorist menace by his connection of terrorism to past government actions.

 

 

PM May Leaps to Attack Democracy as the Unseen Brexit Coup Closes In

PM May has all the credentials and image to rise to this occasion, and to pull off what no-one has really yet seen –the greatest reverse of British social and environmental standards and law in history that is about to be locked in by the June 8 election. The half century of evolved EU workers’ rights, life-protective laws, and scientific environmental norms is about to be overthrown. The London terror massacre occurs on June 3 as Tory and PM May polls  relentlessly slide down and the turning-point snap election is just hours away. State authority is restored in a blinding flash of action. Police command people “to run for your lives and hide”. They  command people to lie down in the areas they control, and to hold their hands over their heads as they are herded in large obedient numbers. Loud explosions are heard all over the place where there are no terrorists, and it is only 8 minutes before the terrorists are all dead for all to see on TV. Dead men cannot speak. PM May is strict and aggressive to rally the masses against the Enemy – and to reverse the Labour opposition’s rising polls. Election campaigning is suspended. PM May accuses those who sought have causal   understanding of the terrorist attacks as showing “far too much tolerance”. She warns that there is “a new trend in the threat we face” – although there is none evident, except raising the indisputable facts of its causation, as Corbyn had done just before his polls began to overtake her. PM May scolds, “Enough is Enough”.  The same old circle of blame-the-enemy while doing nothing effective to stop it is redrawn deeper than before. But she darkly warns others that things “cannot continue as they are”. She suggests that “pluralistic British values” are at fault. She leaves the cause of the endless terrorist spectacles behind to accuse the free internet itself, demanding once again the new Tory policy of sweeping new state regulations across citizens and borders, rather than honing in on ISIS and other long scot-free channels. “There is”, she says, “to be frank, far too much tolerance of extremism in our country”. “So we need to become far more robust in identifying it”, she proclaims in police-state code, “and stamping it out across the public sector and across society”.

Public sector? Across society? Is this a declaration of war against those in the public sector who dissent from the program? Is this a foreshadowing of the social-sector stripping to come with the Brexit coup d’etat? Where does the attack end? It does not. There are no definitions, no criteria, no evidence. There only more insinuations of who must be labelled and stamped out as ‘too tolerant’. There are only more demands for more state powers diverting completely from every issue involved not only in terrorist killing, but in the end of EU rights and laws in Britain. Most of all and most profoundly, every word and position of PM May, the Tory party and the forces behind them have distracted from the ultimate geostrategic game afoot that the London terrorist spectacle has diverted from and covered up. What could the huge and unexamined stakes be here that none discuss? Who alone stands to benefit from every step since PM May was promoted?

 

 

Why Brexit?

There has been endless commentary on Britain’s “Stay or Leave the EU” referendum and the narrow victory of the ‘Leave’ side after 44 years of partnership in which Britain’s GDP, human and workers’ rights,  and environmental protections have only increased, and by far more than the US. Even in gross market money terms, the record is clear in fact. In a letter to the London Times one year ago, Oxford researchers Professor Sir David Hendry, Professor Doyne Farmer, and Dr Max Roser refuted with no reply the Leave EU campaign led by financial and political playboy Boris Johnson. “Since 1973, the  year in which the UK joined the EU, the per capita GDP of the UK economy grew by 103%, exceeding the 97% growth of the US. Within the EU, the UK edged out Germany (99%) and clobbered France (74%). The UK’s growth has exceeded the US while tracking it, even since the crisis of 2008”.

Yet Leave the EU still narrowly won the UK referendum a year ago with nothing to go on except propaganda, and its very dubious result is about to be cemented into British government and history by the June 8 election in 3 days. On every level on which we analyse this decision now being led by PM May and the Tory state, it is a fails every smell test. But the real motive force and private money-party interests behind it are all but invisible to the public – not only in Britain, but around the world. There is virtually no recognition that the snap June 8 election in three days is going to reverse every life-serving law and regulation that has lifted Britain up over half a century from the doldrums of the early 1970’s when Britain was regarded as ‘the sick man of Europe’ in economic performance. How could this happen?

To begin with the referendum itself, the original wording of the ‘Brexit’ referendum was (italics added) “Britain should remain in the EU – Yes or No”. Few observed that this framing of the Tory question appeals directly to the tidal wave of popular resentments that have built up against transnational trade treaties and mass immigration everywhere, Britain included. “Should remain” is re-set to “Leave” as the dominant choice in this negative social context with, in fact, no connection to life co-ordinates. On the surface, the visible movement of foreign-speaking cultures into everyday rural Britain for new benefits and low-wage competition with British workers has widely inflamed anti-passions, as anyone familiar with British culture knows.  The near daily featuring of Islamic ‘terrorist attacks’ has stigmatized the EU system along with such continuous disorders as the torturous financial ruin of Greece. Leave on the ballot in a mysteriously well-funded and media-captivated campaign triggered enough of a primordial anti-EU sentiment that a very slim majority was won. It did not matter that false claims and demagogic showmen were given immense publicity in the Leave campaign in which the most important issues were completely out of the discussion. Nor did it not matter that the Leave vote was mainly rural England, nor that remaining Scotland was thereby propelled into breaking up Great Britain itself. There were no editorials exposing the facts that the new-PM Theresa May had herself warned UK voters that Brexit was “dangerous” and could have seriously damaging effects on the economy, the security, and the survival of the United Kingdom.  There was no media memory that she had said that leaving the EU would be “fatal for the Union with Scotland” and that she had formerly proclaimed “as Home Secretary [that] remaining a member of the European Union means we will be more secure from crime and terrorism”. Nothing seemed to matter except the new fait accompli of Britain ending its half-century partnership in the European Union on the flimsy basis of a referendum for which the overwhelming majority of citizens did not vote or approve.

 

 

Minority Brexit Vote = Massive De-Regulation of Finance and Food 

No-one seemed to report that this Leave vote itself (17, 410,742) represented only 37% of the total electorate (46,500, 001) as enumerated by the Electoral Commission. No mainstream media featured the 12, 948,018 voters left out of the count, over two-thirds the number of those who voted Leave. Only one source clearly reported that those whose votes were not cast in the single June 23 event voted 2:1 against leaving once the results were known (cf. http://blogs.lse.ac.uk/brexit/2016/10/24/brexit-is-not-the-will-of-the-british-people-it-never-has-been/). Most deeply and unspeakably, there was no hint of media attention to the first question of forensic inquiry, cui bono or who stands to gain most from British government leaving the European Union all its common regulation? Even up to June 2,  no-one has joined the dots that show the Leave EU referendum and vote has been an ideal political bludgeon to force Britain’s departure from the historical European Union just as its long-evolved Directives are in the process of enforcing policies and regulations on all-powerful London private banks and finance, and on industrial Big Agriculture and GMO-contaminating crops and fake foods . What no-one has evidently understood is that Brexit ensures that the very same dominant financialization forces that have hollowed out Britain’s working people, the productive economy and its green environment since 1979 are now freed from any EU regulation or accountability just as effective new financial oversight mechanisms as well as organic agricultural and food policies are due to be further implemented, monitored and enforced. This is the undertow historical meaning of the near-hate campaign that has been waged for endless months on the ‘EU bureaucracy’ larded in selective anecdotes without principled substance. Such is the standard method of big-money campaigns against public regulation for the public life good. If more private profit is not fixed into the new regime, it is relentlessly attacked and denounced as ‘suffocating red tape’ and a ‘ruinous burden on business’. This is the signature demand and condition of transnational corporate rule.

 

 

Cui Bono? Remembering the Past to Now

The rootless global money party centred in London has long run Britain with flagrant Thatcherite governance for transnational banks and corporations, overthrowing the post-War labour-capital settlement in Britain. Big London money backed by the Murdoch press was then consolidated in Blair’s ‘New Labour’ capitulation to corporate power through Gordon Brown Labour-light to the election of financier-scion David Cameron. PM Cameron then took the Brexit spectacle as the occasion to resign to avoid, insiders say, the outing of his unexposed financial fraud as PM. Now the government of Great Britain is in the hands of a secretively advised Theresa May. Although as Home Secretary she was unequivocally anti-Brexit, something happened. Despite the very dubious results of the leave-the-EU referendum, she reversed field from support of the EU once in the PM office, and was instantly re-branded as full-square behind Leave as “Brexit is Brexit” and “the irreversible decision of the British people”. Now-PM  May has led official erasure of the fact that the winning vote was only by (official Electoral Commission tally) 37 % minority of voters. In the same vein of memory-hole command, PM May and her backers  ignored the LSE scientific survey reporting that non-voters polled 2-to-1 against Leave once they learned the outcome. The reigning protocol, as with Trump with whom she became bonded in ‘the special relationship’ of the US and the UK that runs British politics, is to annihilate life-protective regulations as new freedom, and enforce follow a bigger corporate tax-cut than Reagan or Trump to a 10% level. Where did the mandate come from for such radical hollowing out of government capacities to govern on behalf of the common interests of society, citizens and their environment? There has been no mandate, but only a one-off 37% popular referendum result with no legally binding force until it is locked into the ‘Great Repeal Act’ and June 8 UK election to legitimate it with no public understanding of the meaning.

The die had been cast behind the scenes. A 37% vote against the considered will of the majority to stay in the EU was going to be used as a no-alternative mandate for massive deregulation and de-taxation of big money powers across the UK without public debate on these issues or even recognition of them.  An Orwellian erasure of facts and totalitarian silencing beneath conscious choice continued right up to the election without anyone evidently knowing it. The PR cover-up since the ever-more lavishly suited Theresa May became PM  has been to brand her office in Maggie-2 resonance as a resolute and honourable defender of the democratic will  of the British people and an anchor of stability to steer Britain’s new future. PM May and advisers have accordingly changed the 2017 general election –she had committed to 2020 before her behind-the-scenes management took over – to an ad hominem vote over her character as PM, not about the radical de-regulation of finance, the environment and the tax code to, in essence, serve the rich while dispossessing the great majority of their labour, social and environmental protections and rights. It is the sort of action from the top that the original Magna Carta stopped by regulating an out-of-control King, only now the unaccountable ruler is bank and corporate money profit seeking even more unequal and total rights over the soon- to-be rump England. The money party cares nothing for nation including  Great Britain except as it fits their divide-and-rule agenda over the trillions of dollars they control daily in play for more asset control over the world. Now firmly in the supreme office with cabinet and media support, PM May’s office has masterfully managed transition to doing the opposite of what she formerly stood for. The Brexit program for private money control over public forces and rules of how society is to live has remained unflagged by even the Opposition and radical left voices.  None see through to the ultimate ruling party behind political scenes, nor to the ultimate fact that it is not economically efficient or even productively capitalist. Its hidden financialization forces and anti-labour-and-ecological agenda of radical de-regulation are, in principle, counter-productive, parasitic and self-multiplying against the common interest of its social and environmental life hosts.

 

The Unasked Questio: Who Wins Now?

On the PR face of it, Theresa May is the clergyman’s daughter soundly risen to PM office. But she is, more deeply, the perfect foil behind which to sneak a Brexit end to the threat of EU regulation of the most life-destructive private money powers of Britain. Brexit is in sinister parallel with the life-blind deregulatory forces of the Trump/Republican forces letting the ruling money party run free to become multiply richer while stripping scientific environmental regulations, monitoring and prevention of cumulatively ecocidal externalities of global financialization and environmental toxification. The difference is that the English financial and factory-food lords are far stealthier and unseen in their demonstrable strategic plan to Leave the EU because it leads the world in scientific method, life-protective regulation and implementation. No-one seems yet to recognise this in the UK, unlike the rising US awareness of at least the Trump-Republican threat to the US and global environment and – more specifically – the Environmental Protection Agency and even the century-evolved and world-leading US national parks. “Making America great again” excludes the life ground. When PM Theresa May now hard-presses Leave the EU even when formerly opposed to it – most of all because of its weakening of Britain’s defences against terrorism – who can doubt something has re-motivated her to reverse the agenda.

The tell-tale avoidance of truth is seen when she lashes Jeremy Corbyn for even  connecting the terrorist operation of Manchester back to the facts of Britain’s war-waging in poor foreign nations from which the suicide bombers come. “Many experts, including professionals in our intelligence and security services,” Labour leader Corbyn  observes, “have pointed to the connections between wars our government has supported or fought in other countries, such as Libya, and terrorism here at home.  Joining the dots is taboo.  In such closure to facts, PM May implicitly justifies government actions on the basis of the legitimacy of past state actions which are war-criminal under international law, and – beneath notice again – stopped Libya specifically from its gold-dinar Bank of Africa plan based on oil revenues to lend to other African countries without the debt enslavement long coveted by London-connected private financing of states (including the British government itself). Who do these actions of repression of war-criminal facts and seizure of other people’s assets serve?

In this light, consider PM May’s capacity to carry Leave the EU as PM compared to its most charismatic leader on the ground, Boris Johnson. Although he has long been London finance’s man as Mayor as well as leader of the Brexit campaign, the master plan cannot go forward with him any further because, as a known liar and bounder, he is completely unfit as a credible finisher in PM office. Those who lead here know very well how to rule behind effective public relations to keep their control acceptable on the public stage– as Wall Street has done with one elected US president after another. This is why the known libertine and shameless US-born self-promoter Boris Johnson was – however charming and useful – stopped for the job of ‘Prime Minister of Great Britain’. He might indeed provoke cross-party reaction against pushing a onetime minority poll into a reversal of modern British history which took away the EU passports and future opportunities of England’s young professional classes.

There is much to cover up here that needs a steady woman ruler with a better manner and more socially just in bearing. So Prime Minister Theresa May it was. Thus the sole regulatory powers in place keeping the private financial superpower of London in check against another 2008 emptying of the public treasury and pensioners’ incomes – not to mention the deregulation de-greening of England by an industrial factory frankenfood system – escaped the public’s attention. To credibly cover up what nobody knows while believing in her mission is made-to- order for PM May, and so the Trump-like mega de-regulation and de-tax agenda has gone all the way to days before the June 8 British general election with far less fuss. Boris was meanwhile made Foreign Minister to insult the EU onto their heels in England’s revolution backwards for the unproductively and villainously rich. Few noticed that all these political shenanigans served a unifying function. The new EU financial regulations on London’s big banks could not be implemented, monitored or enforced with Brexit stopping it all in its tracks.  EU Organic Agriculture Regulations protecting the environment and natural ecosystems from genetic contaminations and industrial clearances of green life was simultaneously terminated with hardly any notice. That foods themselves are released from safe and scientific EU standards has remained a non-issue. For poignant household example, British demands for hygiene standards to be changed to US rules so as to permit chicken meat sanitized only by chlorinated water, to allow beef raised with growth hormones, and to free genetically engineered substitute foods or GMO’s from production and label restrictions have all been stopped dead by Brexit.

With London finance as well as industrial agriculture and false foods freed from codified norms of responsibility to the common life interest long evolved, tested and instituted within Britain and the European Union, the most predatory and counter-productive forces in Britain are allowed to run free with no public notice before the June 8 general election.  EU labour rights (eg., 48-hour week), human rights (e.g., employees’ and prisoners’ rights), financial oversight of any independent kind (as we have seen), and virtually all environmental standards developed beyond the US model, all  are discontinued by  the Great Repeal Act. With no evolved EU standards of economic, social or environmental protection legally obligatory and enforceable any more, the June 8 election will lock it all into the future with no way back that can be reasonably relied on without electoral reversal. With all the historical bearings and force of precedent, independent adjudication and law left behind by Leave, a US-UK deregulation and de-taxation orgy can proceed as ‘democratic’ if PM May wins the election. This is why PM Theresa May as the first head of state to visit the White House came out of their private meeting holding hands with Donald Trump. Demonstrating its confidence in the liberated financial rule of Britain as the Great Repeal Bill proceeded, Goldman-Sachs simultaneously committed to a $500-million headquarters in central London.

 

 

London Finance with Goldman-Sachs Escapes All EU Financial Regulation

The very definition of the EU Central Bank’s mandate to investigate and supervise “the business model, risk management, and capital, liquidity and funding”of private-profit bank and financial institutions including London  (via a rigorous Supervisory Review and Evaluation Process by elite teams of professional accountants)  is anathema to the long unregulated US-UK financial system. London finance like Wall Street is very used to increasingly devouring public treasuries, pensions and savings to become 40% and rising of the entire economy. They have done this through the global financial meltdown they have caused to multiply their money-demand control of the planet in a myriad of algebraically concealed ways with no oversight supervision, no independently verifiable standards, and no real reforms. The European Central Bank has finally moved to institute common standards across the Union – what was done after the Great Depression but has been reversed since. Private London-Wall Street banks and finance will do anything to stop this regulatory reform to protect their many trillions of assets and liabilities running free to continue unimpeded in the greatest unearned and still rising transfer of wealth to the rich in history. The economic stakes are unprecedentedly high, and so the silencing of any notice of the reforms to regulate them has in the UK been total in the mass media and even in Labour policy recognition. Consider the vast treasure involved. “Existing financial rules” in London banks have been officially judged by independent experts as “woefully inadequate”, and all of London’s foreign currency trading (globally dominant and largest in Euros) remains unregulated and untaxed.

Vast investment banking, cross-border sales of securities, Euro liquidity to clearing houses, non-performing loan recognition, coverage and write-offs also escape independent regulation by Brexit and the Great Repeal Act. Revenue-cap norms on skyrocketed financial pay to executives, standards of internal audit, deferred tax assets and credits masked as capital, capital adequacy, liquidity requirements and ability to pay liabilities are all also blocked by post-referendum laws. Unnoticed too are overdue binding norms on regulating the competence of new members of management and key function holders (say, Boris Johnson) and oversight of collective investments in transferable securities by captive states and unilateral tax advantages gained by their public issue and sale for profit. In sum, the Capital Requirements Directive and Regulations are set on fire by the Great Repeal of European Union obligations, now to be locked in by the June 8 election. What are boasted as ‘elegant and sophisticated innovations of investment instruments’ and so on, are in fact systemic methods of fraudulent diversion with no qualified, independent accounting authority allowed into check their schemes fixed to maximally profit powerful private financial dealers against transparency and liability, elected government accountability, and the common interests of everyone else.

 

 

The Great Silencing

This whole joining of fateful dots has been covered in silence. Big London bank and finance has so far got away with veiled abolition of all the overdue EU financial rules, monitoring and enforcement to regulate them after the 2008 financial meltdown in which an estimated $26 trillion of public money has been swallowed by the transnational private banking system led by Wall Street and London. In faint contrast, there has been a slight exposure of the Brexit reverse of evolved EU environment protections, monitoring sciences, directive laws, and feed-back enforcement processes. But here too any information has occurred only in fragments, with no connections to the EU’s life-protective binding rules on industrial farming, GMO products, and industrial chemical pollutions and toxins. For example, you will not see in any government press release or corporate mass media any mention of the European Union’s world-leading environmental protection by its Organic Agriculture Regulations setting out “the principles, aims and rules of food production and labelling”. No-one mentions in the media or government that these regulations are precisely what are eliminated from monitoring, feedback and enforcement in Britain once the Great Repeal Act is legitimated by the June 8 election.   In similar vein, there is a white-out of pre-and-post-Brexit reference to EU’s historic and definitive Registration, Evaluation, Authorisation and Restriction of Chemicals (REACH). It is by far the most advanced environmental and human health protection system scientifically validated in existing government and the world. But it too is made invisible in the ruling discussions and debates. Such jam-it-through strategy with no public understanding and almost all the primary life-protective common legislation effectively concealed has been shrouded throughout in the pervasive media image of PM May vs. hapless Corbyn Labour. This is the only issue raised for voters in the June 8 election. The global media too have consciously or unconsciously collaborated in making this most important election in British history in financial and environmental terms, a non-issue. Yet even all this has not been enough for the great cover-up still in motion. There has been a Lobbying Act to stop informed NGO’s – but not any of the London-based big transnational banks and corporations – from lobbying before the June 8 election, a new law which has frightened them into silence with Greenpeace already convicted and fined.

 

 

What Does Not Fit the Life-Blind Program?

One underlying principle governs beneath the political scenes, speeches and choral commentaries on stage. It also governs the UK-US ‘special relationship’ and Wall Street-London axis at the same time, in different ways: De-fund and de-regulate all life-protective laws, agencies and enforcements that cost public and corporate money, and subsidize instead the unproductive or counter-productive private money party’s multiplying growth.

The method is the same at base. Private Wall-Street and London banks behind the scenes print the world’s money by debt issue for maximum profit to the top while producing nothing but multiplying their private money demand over all that exists.   Transnational corporate money sequences funded by the banks, in turn, strip and pollute life bases on all levels to produce and sell profit ever more commodities priced for maximum private profit with few or no life standards to govern their extractions, productive processes, products, wastes and life-destructive externalities. For all its faults, the European Union has gone much further than any other unified jurisdiction in human and ecological regulations of these material phases, and the financial drivers behind them. This is ultimately why the UK private money party, especially its non-productive and counter-productive investors, have repudiated EU regulations of them on other pretexts. In general, the connected global forces of life and life means destruction are screened out by the established framework of meaning which is in principle life-blind. In consequence, private financial and corporate forces are released from what modest public regulation has developed to protect organic, social and ecological life systems, and the systemic despoliation of global life-organisation continues to run down biodiverse energy capacities on all levels. The UN Paris Agreement on ‘climate change’ is intended to meet the most dangerous consequences of this system. But it is selective, and ‘climate change’ euphemises hydrological-cycle destabilization and pollution that is the baseline force of world life and life means destruction. Again unifying principles and concepts are screened out of public discussion as well as silo disciplines.

Jeremy Corbyn’s back-to-the basics Labour movement is hopeful in that it is not bound like Tony Blair’s ‘New Labour’ to the dominant Murdoch media and big corporations controlling the agenda via government committees and PFI’s.  And this is why Corbyn’s grass-roots leadership is pervasively belittled in the dominant media, and also why the while historic stakes of the June 8 election have been systematically blinkered out. The ruling framework of meaning presupposes the life-blind system, rules out what does not conform to its money-value logic, and attacks what seeks to reform it. So as the stakes keep getting higher as June 8 approaches, they are kept out of the discussion. There has been a systemic blocking out of all the momentous issues in the campaign before ‘Brexit’ and after it to today. The meta program is mind-locked, and compulsively proceeds even when its political leaders have no legitimate ground to proceed, but only a transient minority vote for Leave the EU in a largely apathetic and cynical referendum with no binding force. The Great Repeal Act of  EU regulations follows in lockstep fulfilment of the meta program, and an unscheduled snap election while Tory polls are still far ahead is set to cement it all in before the public wakes up to the meaning. Thus proceeds the greatest system-wide reverse and financial boondoggle in modern English-speaking economic history and social-ecological evolution.

 

 

There is No Alternative

The re-grounded Labour movement does the best it can for the working people and dispossessed across Great Britain, the only organised institution to do so in the country. But this too is ridiculed and condescended to in the corporate press. And still the deeper and historic issues remain completely out of view. In recent days, nonetheless, Labour has stood for returning the looted national railway system and other privatized utilities to a productive public direction, for taxing the rich more to fund falling public services, and for connecting Britain’s terrorist problem to its armed-force actions in other countries.  This has given a spike in the polls to Corbyn labour. Yet still the profound major issues of ‘Brexit’ itself remain covered over. The dots of the essentially phoney Leave the EU referendum are not yet joined. The holus-bolus financial and environmental deregulation by the Brexit scheme remains undefined. The basic outline for the historic hoax has remained undetected into June. “There is no alternative” has thus been reconstituted into the 2017 election. The underlying driver to cement the unaccountable private money power demanding ever more into a de-regulation bonanza remains unnamed. Not even the master slogan of ‘Brexit’ is deconstructed as a public relations mask of the greatest backward move in life-protective norms in historical record: all to serve life-means destroying or unproductive money-party powers that are fronted by photogenic leaders on all planes. The rationally self-maximizing growth of private-profit power over all existing assets is built into the meta program. But it is not comprehended. It exactly follows the inner logic of ruling economic, military and strategic game theory in models and calculations, but there is no linking across the simultaneous phenomena which are life blindly forming the future. The conversion of organic, social and ecological life organisation into more money demand for fewer is now being rapidly instituted into place.

 

 

Summary

The June 8 British election is set to lock in the big-money coup against long- evolved regulations and norms protecting human, social and environmental life.  The crisis is incomprehension of the meaning. A corrosive cynicism of EU capacity to govern for the public interest (Greece the continuous demonstration), media-debased public perceptions suppressing the historic stakes involved, a US presidency demonized in all the corporate media,  NATO-supported Nazism in Ukraine as Western freedom, and other degenerate trends have not been connected in their unifying pattern – within which UK money-party reversal of post-War socio-economic evolution is taking place. PM Theresa May is the political face of the great leap backwards.  So far the ruling politics of one distracting spectacle after another has worked right up to the June 8 election, fortified by a diabolical terrorist attack on London 5 days before the vote. y.. Yet there is a growing intuition of the fast slippage of social and ecological life order into chaos with no human centre of gravity in charge.  The British public may still see through to the underlying radical program of government de-regulation, de-taxation, and de-funding to further empower the financial looting and life-despoiling forces at work. Joining the dots behind the scenes reveals the emerging plot of meaning. The Great Brexit:

(1) stops the EU Central Bank Regulators and Supervisors from finally checking out the models, risk culture methods, inadequate reserves and so on of big London banks involved including Goldman-Sachs in the 2007-8 financial collapse, and

(2) eliminates the binding force of all the long-evolved and scientific EU regulations structured to prevent, in particular, the corporate industrial food system’s polluting and despoiling US-led methods undermining the British people’s health and environment.  

Brexit’s Great Repeal Act and PM May’s snap June election is the only way to achieve (1) and (2) without negotiation or exposing public issue. London financial accountability has most of all been silenced as an issue. Its growing trillions of nano-second fast-dealing to enrich the already rich by unregulated methods and calculations remain immune from any independent oversight. Similarly, the very aims and principles of the binding, monitored and still developing Organic Agriculture Directive are anathema to Britain’s US-led Big Agriculture and Food lobbies, not only around GMO restrictions – which US trade authorities and British GMO ‘science’ have made war on for over 15 years – but around every EU restriction on pesticides and herbicides to clear-cutting environments for monocultural factory methods to commodity motor rackets and pollutions to norms of licensed “food quality” in the corporate market. The very governing EU objectives of “biodiversity”, “animal protection”, and “organic natural systems and cycles” are a threat to Big Food production and products when attached to exactly defined, inspected and enforceable life standards. Long used to pervasive public relations sales pitches of “feeding the world” in place of accountable, life-protective environmental and nutrition standards, this very powerful British lobby is next to London Big Finance as the covertly moving major profit-first force behind the Brexit coup d’etat. Both are in principle life-blind in their mechanical financial models. Both are governed only by self-maximizing private money sequencing in exponential growth with no life-coherent ground or norms to stop their march across the world through organic, social and ecological life hosts. Both have led the Great Repeal of developed EU life standards beneath the radar of media coverage, parliamentary diagnosis, and academic silos. The June 8 2017 UK general election will open or close Britain’s life future under the rule of life-protective law.

Interpretation of Economic, Social and Cultural Rights by Human Rights Bodies in Times of Economic Distress. The case of Greece

Introduction

Economic, social and cultural rights have borne the brunt of the recent economic crisis and the austerity measures adopted to counter it. Due to their gradual implementation and the need of positive measures to implement them, they were the first to be attacked especially in developed countries where certain achievements in the field of labour rights and social security had attained quite a high standard. The proposals to amend the labour law in France and the fierce reaction of the people are indicative of this trend[1]. Given that these achievements were the result of the progressive implementation of economic, social and cultural rights, as stipulated by international human rights treaties, most of the initiatives to restrict them result in prohibited retrogressive measures.

States falsely consider that it is easier to limit economic and social rights instead of civil and political rights for various reasons. First of all there is much discussion regarding the real justiciability of social rights. Secondly, social rights are interpreted by international human rights bodies mainly through an expansive interpretation of civil and political rights. Thirdly, the dire situation of economic, social and cultural rights in most developing countries renders the discussion of their limitation in developed countries somewhat inappropriate or at least awkward. Finally, certain researchers maintain that sometimes social rights are given lower status as a matter of ideological choice[2], while their real protection is difficult due to inequalities especially within the urban centres. After discussing the possible ways of applying economic, social and cultural rights in the first part of the essay, I will then examine their application during economic crises with a special reference to Greece focusing mainly on two fields, labour rights and social security rights, and the case-law produced by international human rights bodies in that respect.

The rise and current protective framework of economic, social and cultural rights in international human rights law

I. The global normative framework: indivisibility of civil and political rights and economic, social and cultural rights

1.  At the international level

References to human rights in general and economic, social and cultural progress and development in particular are already included in the UN Charter[3]. The first international instrument – albeit not legally binding[4] – that refers both to civil and political rights and economic, social and cultural rights is the Universal Declaration of Human Rights (UDHR)[5]. Civil and political rights – the so-called “first generation” rights – were distinguished from economic, social and cultural rights or “second generation” rights in that they required no positive action by the state in order to be safeguarded. The latter had only to refrain from interfering with the right. To the contrary, it was deemed that economic, social and cultural rights required the allocation of resources and public expenditure. Therefore, they were not of immediate implementation but could be achieved only progressively. During the Cold War, Western states considered civil and political rights to be the only enforceable rights. There is also a “third generation” of rights that comprises the rights to development, self-determination, healthy environment, natural resources, collective rights etc.[6].

One can easily draw the conclusion that this is an obsolete argument that cannot firmly support a human rights separation theory, since it has already been established in international human rights jurisprudence that abstention is not enough for the protection of civil and political rights but these require positive measures as well[7], while the Vienna Declaration and Programme of Action[8] reaffirmed that: “All human rights are universal, indivisible and interdependent and interrelated. The international community must treat human rights globally in a fair and equal manner, on the same footing, and with the same emphasis”[9]. Even before that, the Proclamation of Teheran in 1968, stressed that “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”[10]. Moreover, the Committee on Economic, Social and Cultural Rights has repeatedly reaffirmed that human rights are “interdependent and indivisible”[11].

While most international human rights treaties of special protection contain provisions both for the protection of civil and political rights and economic, social and cultural rights, verifying thus their interconnected character[12], this approach was not followed by the UN Economic and Social Council when the issue of adoption of a universal covenant arose. At that time, the delegates considered that civil and political rights, on the one hand, and economic, social and cultural rights, on the other, could not be implemented in the same way[13]. The former required that states refrain from certain harmful action, while the latter could be implemented only progressively, by means of positive measures and appropriate legislative action.

Hence, the UN General Assembly took the policy decision to request the drafting and eventual adoption of two separate covenants, one dedicated to civil and political rights and the other to economic, social and cultural rights[14]. Both were submitted simultaneously for consideration to the General Assembly so that their unity could be emphasized; it was the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR). They were adopted on the same day by the same UN General Assembly resolution[15]. However, the two moved hence on separate tracks.

The competent organ to control implementation of the ICCPR, through the consideration of periodic reports submitted by states-parties, is the Human Rights Committee[16]. On the contrary, monitoring of the ICESCR was entrusted initially to the ECOSOC, which had the duty to receive – through the intermediary of the UN Secretary General – and consider reports on the measures that states have adopted and the progress made in achieving the observance of the rights recognized in the ICESCR[17]. The Committee on Economic, Social and Cultural Rights was established only in 1985 under resolution 1985/17 (28 May 1985) of ECOSOC and was mandated to carry out henceforth the monitoring functions assigned to ECOSOC in Part IV of the ICESCR[18].

Furthermore, the ICCPR was equipped from the very beginning with an Optional Protocol which empowered the Human Rights Committee to receive and consider individual communications on alleged violations of the rights of the Covenant. Through the mechanism of individual communications the Human Rights Committee has accumulated a remarkable case-law, which is referred to very often by other international judicial and quasi-judicial human rights bodies. The Optional Protocol to the ICESCR, which established a similar individual complaints procedure regarding economic, social and cultural rights was adopted only in 2008 and entered into force on 5 May 2013. This lack of individual complaints mechanism constituted a major practical obstacle for those that supported the justiciability of economic, social and cultural rights.

2. At the European level

The same separation is prevalent within the European continent, where this differentiation of first and second generation rights was reflected in the adoption of two instruments having a different control mechanism. The main instrument of general human rights protection, the European Convention on Human Rights adopted in 1950 and binding on all Council of Europe member states[19], and its Additional Protocols recognise only civil and political rights (and the right to education from second generation rights by virtue of article 2 Protocol no 1). What is more, the instrument is vested with a unique implementation mechanism. A European Court of Human Rights (ECtHR) is entrusted with considering individual applications on human rights violations, issuing judgments that are binding upon the respondent state, while a political organ, the Committee of Ministers, is responsible for monitoring the compliance of the member state involved, whenever a violation is found by the ECtHR, through the proposal of individual and general measures to remedy the violations. While the ECtHR protects mainly civil and political rights, it also guarantees indirectly economic, social and cultural rights by interpreting them under the prism of civil and political rights[20].

Economic and social rights as such are guaranteed by the European Social Charter (1961) and the Revised European Social Charter (1996), ratified by 27 and 34 states respectively[21]. The instrument is equipped with an Additional Protocol providing for a system of collective complaints (1995). The monitoring organ in this case is not a court but rather a Committee, the European Committee of Social Rights (ECSR), which is composed of independent experts. The latter monitors the compliance of the contracting states through two procedures: the reporting procedure, according to which states are bound to submit national reports regarding the implementation of the provisions of the Charter, and the collective complaints procedure which allows for the lodging of complaints. The ESCR examines the reports and adopts conclusions, while in respect of collective complaints it adopts decisions. Neither of them is binding.

Finally, the Charter of Fundamental Rights, adopted in the framework of the EU and having the same legal value as the founding treaties by virtue of the entry into force of the Lisbon Treaty[22], translates in a binding document the indivisibility of human rights as it was officially recognised in the Vienna Plan of Action: human rights are universal, indivisible and interdependent and interrelated[23]. Therefore, the Charter includes all three sets of rights: a) classical first generation rights (civil liberties, political rights, judicial protection), b) second generation (economic, cultural and social rights), 3) third-generation rights e.g. protection of the environment. And rights that do not fit in any of the abovementioned categories, e.g. data protection, consumer protection. There is however a gap as to which social rights are declared as principles and which as justifiable rights.

II. The justiciability of economic, social and cultural rights[24]

Formerly there was much discussion on whether economic, social and cultural rights could be considered justiciable. The prevalent opinion was that civil and political rights and economic, social and cultural rights remain in two different legal instruments and the latter have not attained the same degree of justiciability and enforceability as civil and political rights. The main arguments against are the following[25].

The “policy argument”

  • First of all it was considered that the implementation of economic, social and cultural rights was clearly a matter of policy. According to this point of view, courts are an inappropriate forum to adjudicate and pronounce on issues of social policy. And in case they are called to adjudicate, they should accord a considerable margin of appreciation to the state authorities[26].

The “limited resources argument”

  • Moreover, since their effective protection required resources, it rested solely on the state to realize them progressively. Accordingly, states argue that they do not have adequate resources to provide even the most elementary socio-economic rights to their populations. Therefore, courts could not play an active role in this procedure, because otherwise they would have to meddle in the legislative and executive function by making the law rather than applying it. It would be, in other words, an impermissible form of judicial activism. The partisans of the progressive realization approach had an unexpected ally: article 22 UDHR which stated that “Everyone, as a member of society … is entitled to realization, through national effort and international co-operation and in accordance with the organization and resources of each State, of the economic, social and cultural rights indispensable for his dignity and the free development of his personality”.

The “effective remedy argument”

  • Another argument raised by those maintaining the non-justiciability of socio-economic rights is the fact that the ICESCR does not contain any provision on the duty of states to provide an effective remedy in the national legal order to individuals whose socio-economic rights have been violated. Indeed, the right to an effective remedy is a cornerstone provision in all human rights treaties protecting civil and political rights[27].

Those arguments representing a rather traditional view on the matter have thence been rebutted by the following[28].

The “violations approach”

  • One alternative, maintained by A. Chapman is the “violations approach”[29]. According to this, one should set aside the progressive realization of economic, social and cultural rights, which does not allow for their monitoring, and rather focus on the state conduct that violates these rights. Thus, violations could result from governmental measures that actually contravene the provisions of relevant international instruments or from the creation of conditions that do not foster or permit the realization of these rights and, last but not least, from policies and legislations that fail to fulfill minimum core obligations. For example, a state in which a significant number of individuals are deprived of essential foodstuffs, of primary health care, of basic shelter and housing or of basic education is failing to discharge its obligations under the ICESCR[30]. In that context, the Committee on Economic, Social and Cultural Rights has also stressed that vulnerable members of society must be protected, even in times of severe resources constraints, caused by adjustment programmes, economic recession or other factors[31].

The evolving role of courts in a democratic society

  • Another argument in favour of the justiciability of socio-economic rights relates to the role of courts in general in a democratic society. Indeed, a constant disagreement among lawyers is the difference between “legal” and “political” matters. One could seize the courts for the former but not the latter. For a long time it was suggested that matters involving the allocation of resources should be left to the political authorities rather than the courts. It is an invalid argument, if we take into account that a great range of matters have always political implications. This should not impede the courts from adjudicating on them. Likewise, courts are already involved in cases which have considerable resource implications. This approach has been also adopted by the Committee on Economic, Social and Cultural Rights, which has pointed out that the active involvement of courts in questions implicating socio-economic rights is imperative, in order to protect the rights of the most vulnerable and disadvantaged groups in society[32].

Economic, social and cultural rights that can be enforced immediately

  • Furthermore, one could distinguish between those socio-economic rights that could be enforced immediately and others that are by definition subject to progressive realization. The Committee on Economic, Social and Cultural Rights, in its General Comment no.3[33], asked for the provision of judicial remedies with respect to rights which may be considered justiciable. It also enumerated a non-exhaustive list of rights that “would seem capable of immediate application by judicial and other organs in many national legal systems”. These include the equal right of men and women to the enjoyment of all economic, social and cultural rights (article 3), the right of everyone to the enjoyment of just and favourable conditions of work (article 7a)i), the right of everyone to form trade unions and the right to strike (article 8), the rights of children (article 10 §3), the right of free and compulsory primary education (article 13 §2a), of parents and, when applicable, legal guardians to choose for their children schools (article 13 §3), the right of individuals and bodies to establish and direct educational institutions (article 13 §4), freedom indispensable for scientific research and creative activity (article 15 §3). As the Committee stated, “the fact that realization over time is foreseen under the Covenant, should not be misinterpreted as depriving the obligation of all meaningful content”[34].

Domestic application of the Covenant

  • Fourthly, the absence of a provision on effective remedies does not constitute per se an obstacle to the justiciability of economic, social and cultural rights. Although the ICESCR does not contain a counterpart to article 2 §3b ICCPR, it does stipulate that: “Each State Party to the present Covenant undertakes to take steps, individually and through international assistance and co-operation, especially economic and technical, to the maximum of its available resources, with a view to achieving progressively the full realization of the rights recognized in the present Covenant by all appropriate means, including particularly the adoption of legislative measures” (article 2 §1). Pursuant to General Comment No. 9 of the Committee on Economic, Social and Cultural rights the phrase “appropriate means” also includes domestic legal remedies, which reinforce every other initiative[35]. According to the Committee: “Where the means used to give effect to the Covenant on Economic, Social and Cultural Rights differ significantly from those used in relation to other human rights treaties, there should be a compelling justification for this, taking account of the fact that the formulations used in the Covenant are, to a considerable extent, comparable to those used in treaties dealing with civil and political rights”[36]. In the same vein, the Inter-American Court of Human Rights has used article 25 ACHR to request effective remedies for the demarcation and titling of indigenous land in cases where civil and political rights and economic, social and cultural rights intersect[37].

The “permeability principle”

  • Another way to address the question of justiciability is through the “permeability principle”[38]. According to this, civil and political rights are used as a basis for admitting complaints concerning economic, social and cultural rights. For instance, allegations regarding the violation of the right to adequate housing could be treated though the right to property or violations of the right to health could be admitted as a possible infringement of the right to life or the right to humane treatment. The contribution of the Inter-American Court of Human Rights case-law to this discussion is priceless. Indeed, the IACtHR cuts the Gordian Knot of the justiciability of socio-economic rights, by protecting them through the dynamic and broad interpretation of civil and political rights. In that way, the indivisibility and interconnected character of the two generations is reinforced, since economic, social and cultural rights are inherent in civil and political rights.

The impact of austerity measures on economic and social rights. Issues of effective protection

I. The position of the Committee on economic, social and cultural rights

The centrepiece of the ICESCR is the obligation on States parties to respect, protect and fulfil economic, social and cultural rights progressively, using their maximum available resources[39]. Moreover, states parties to the ICESCR have an immediate obligation to ensure the implementation of a minimum essential level of all economic, social and cultural rights. This minimum core[40] covers for instance all obligations that ensure an adequate standard of living such as essential health care, basic shelter and housing, basic forms of education etc. In order to achieve this goal, available resources have to be allocated proportionately. Thus, for instance, a budget that relies heavily on military expenditure will save little for education or health care. Even if available resources are totally inadequate, the state bears the burden of proof to demonstrate that it has used all its resources in a proper manner so as to cover the minimum core[41].

However, states enjoy a wide margin of appreciation (to borrow the phrase inaugurated by the ECtHR)[42] regarding the implementation of socio-economic rights. The obligation of progressive realization carries naturally the prohibition – albeit not absolute – of retrogression. According to General Comment no 3, any deliberate retrogressive measure, if not prohibited, requires “the most careful consideration and would need to be fully justified by reference to the totality of the rights provided for in the Covenant and in the context of the full use of the maximum available resources”[43]. This obligation remains the same even in times of economic distress or adjustment programmes.

Hence, unlike the International Covenant on Civil and Political Rights, derogations are not allowed from the ICESCR even during times of economic emergency[44]. According to the Maastricht Guidelines on violations of economic, social and cultural rights, states are obliged to respect, protect and fulfil economic, social and cultural rights through appropriate legislative, administrative, budgetary, judicial and other measures and failure to observe this obligation may result in violation of said rights[45]. For instance, arbitrary or sweeping forced evictions, which are frequent in situations of economic crises[46], violate the right to housing. Withdrawal of basic labour standards protecting private employees may amount to a violation of the right to work. Last but not least, denial of basic health care may result to a violation of the right to health in extreme circumstances even of the right to life or the prohibition of degrading treatment.

Despite the fact that full realization of economic, social and cultural rights is achieved progressively, this does not alter the legal obligation of states to adopt measures immediately or as soon as possible to that direction. States are obliged to demonstrate that they are actually taking such measures and that they are making progress for the full realization of these rights. Thus, the notion of “progressive realization” cannot be used as a pretext to avoid full execution of the Covenant’s provisions. Furthermore, certain minimum core obligations such as essential foodstuffs, essential primary health care, basic shelter and housing, or the most basic forms of education have to be satisfied, irrespective of the economic distress or the availability of resources[47]. In a letter[48] addressed by the Chairperson Pillay to all states parties it is stressed that even though states are allowed to adopt austerity measures in order to overcome severe financial crises, however these decisions should not lead to the denial or infringement of economic, social and cultural rights, especially if this results in negative impacts on vulnerable and marginalized individuals such as the poor, women, children, persons with disabilities, older persons, people with HIV/AIDS, indigenous peoples, ethnic minorities, migrants and refugees. Hence, while adjustments in the implementation of economic and social rights are inevitable, these should not lead to regression. It is interesting that the Chairperson referred to “the pressure that is exercised on many States parties” without clarifying where this pressure comes from: the overall economic necessity or third parties?

In her letter the Chairperson also identifies four requirements that have to be met by adjustment programmes: a) they must be a temporary measure, b) they must be necessary and proportionate, c) they must not be discriminatory but they must strive to mitigate inequalities especially with regard to the disadvantaged, d) the minimum core content of economic and social rights, as developed by the International Labour Organization, must be ensured at all times. Strangely enough, these requirements are identical to those applied for derogation measures from civil and political rights during states of emergency[49].

II. The case-law of the European Court of Human Rights

Even before the current economic crisis, the ECtHR had rendered judgments that included an economic dimension: violation of the right to life regarding the death of fifteen children in a home for children with severe mental disabilities due to lack of food, heating and basic care[50], inadequate access to health care for detainees or asylum-seekers raising issues under articles 2 and 3 ECHR[51], health rights of prisoners[52], violation of article 8 ECHR due to the planned eviction of Roma from an unlawful settlement without proposals for rehousing[53], total deprivation of a social pension[54], qualification of all social benefits as possessions even if they are non-contributory, so as to be covered by article 1 of Protocol No. 1 ECHR[55] etc. Of particular interest was a case regarding insufficient amounts of pension and the allegation of the applicant that this amounted to inhuman treatment, although the Court did not find a violation[56].

With regard to austerity measures adopted by states embroiled in budgetary crises and adjustment programmes, the European Court of Human Rights has already set a clear legal precedent. In Da Silva Carvalho Rico/Portugal the outcome was quite predictable: the ECtHR has dismissed the case applying the “proviso of the possible” doctrine[57]. According to this theory, borrowed by German constitutional law and applied by the Portuguese Constitutional Court as well, the state cannot be forced to comply with its obligations in the framework of social rights if it does not possess the economic means to do so[58]. Thus, budgetary constraints on the implementation of social rights can be accepted provided that they are proportionate to the public aim sought and they do not deprive the right of its substance. With a similar reasoning, the Court declared manifestly ill-founded applications against pension reductions for civil servants in Portugal[59] or the temporary reduction in the pensions of judges in Lithuania[60] which had their origin in austerity measures as a response to the economic crisis.

Against this background, we are waiting with extreme anticipation the judgment of the Grand Chamber that will reconsider the case Béláné Nagy/Hungary. The Chamber has already found that the removal of a disability pension through consecutive amendments to the eligibility criteria was considered excessive and disproportionate, thus constituting a violation of article 1 of Protocol No. 1[61].

The global economic crisis of 2007-2008 and its impact on Greece

I. The beginning of the crisis

The causes of the global economic crisis of 2008 have already been extensively discussed and will certainly continue to preoccupy political economists in the years to come, especially insofar as no safe exit from the overall crisis is yet envisaged. Consequently, we will not purport to delve into the multifaceted causes of the financial crisis, but rather to offer an overview of it and most importantly the way it has impacted on Greece and how it prompted the relevant austerity measures.

The financial crisis traces its roots in the USA back in 2007. The crisis hit initially a small segment of the financial markets, namely subprime mortgages, but soon it resulted in global recession[62]. Shortly after the initial blow, many financial institutions mostly in developed countries have been affected. National governments were required to bailout banks; the housing market was affected resulting in evictions, while prolonged unemployment became a quasi-permanent feature of contemporary societies. The crisis has had an adverse impact both in developed and developing countries, the latter mainly through the trade channel or through workers’ falling remittances[63]. According to reports, the losses of gross domestic product amounted to 10% of global output in 2008-2010, while the loss in values of assets and the loss of personal income precipitated by the austerity measures cannot still be calculated with certainty[64].

II. The immediate aftermath: the European sovereign debt crisis

The global financial crisis resulted in a European sovereign debt crisis in the end of 2008-2009 which affected primarily Iceland, Greece, Portugal, Ireland, Spain and Cyprus. The affected countries were unable to repay government debt or to bail out over-indebted banks without the assistance of third parties. Given the particularities of the European integration – the eurozone is only a currency union and not a fiscal union thus member states maintain different tax, remuneration and pension rules – the options available to political leaders to react were limited. In fact, EU and the eurozone in particular had no contingency plan to counter the effects of an economic crisis of such a magnitude.

The first mechanism that was put in place was the European Financial Stability Facility (EFSF). The EFSF was established in June 2010 as a “société anonyme” under Luxembourgish law and has provided financial assistance to Ireland, Portugal and Greece, through the issuance of bonds and other debt instruments on capital markets. It has 17 shareholders, namely the eurozone member states. Since 1.7.2013 the EFSF is not allowed to engage in new financing programmes or enter into new loan facility agreements. The EFSF assistance programme for Greece expired on 30 June 2015[65].

It was replaced by the European Stability Mechanism (ESM), a permanent international financial institution, established by an intergovernmental treaty signed by the euro area member states on 2 February 2012[66]. ESM is a crisis resolution mechanism, providing stability support to eurozone countries threatened by severe financing problems. Its financial assistance is not funded with taxpayer money; the funds are rather acquired by issuing capital market instruments and engaging in money market transactions. ESM has 19 shareholders – the euro area member states – and is open for membership to all EU member states that will adopt the euro as their sole currency in the future. Since 1 July 2013 it is the sole mechanism for responding to new requests for financial assistance and has thus far assisted Greece, Cyprus and Spain, the first two through loans subject to macroeconomic adjustment programmes and the latter through a loan to government for bank recapitalization. Greece is the sole eurozone member state that has received support from both institutions and the only one to remain in the ESM stability programme. Cyprus has exited successfully the programme on 31.3.2016, while the financial assistance programme for Spain expired on 31.12.2013[67].

Participation in these financial stability mechanisms entails as a short- and long-term consequence the adoption of austerity measures and far-reaching privatization programmes. In fact, austerity measures were the primary political choice of governments in their effort to stem the effects of the economic crisis and reduce deficit and public debt[68]. Even when applied with restraint, austerity measures have an adverse impact on the enjoyment of acquired economic and social rights and thus on our ordinary and everyday life. This approach was inaugurated by the International Monetary Fund that implemented the Structural Adjustment Facility in 1986 and the Enhanced Structural Adjustment Facility one year later, making financial assistance conditional on the implementation of neoliberal structural adjustment programmes impacting adversely on human rights[69].

III. The impact of the economic crisis on Greece

1. The financial assistance provided to Greece

Due to its macroeconomic imbalances[70] and the lack of flexibility resulting from its status as a eurozone member state, Greece was the first eurozone country affected by the global economic crisis. Overcoming the “no bail-out” clause of article 125 of the Treaty on the Functioning of the EU, which prohibits the Union and individual member states from assuming the commitments of governments and other public authorities[71], the first financial assistance package for Greece was agreed in April 2010 and consisted of bilateral loans from eurozone member states and the International Monetary Fund (the so-called Greek Loan Facility).

However, the Greek Loan Facility was inadequate to counter a more or less systemic crisis. Therefore, in March 2012 the Eurogroup approved a second support programme for Greece, provided again by the Eurozone member states and the IMF. This time, the Eurozone assistance was not provided though bilateral loans but through the EFSF. Furthermore, the Eurozone member states decided to apply the procedure of the Private Sector Involvement (PSI) in the restructuring of the public debt. Thus, in May 2012 about 97% of privately held bonds took a 53,5% cut of the face value of the bond, corresponding to an approximately 107 billion euro reduction in Greece’s debt.

Overall political instability and reluctance of the Greek governments to adopt and implement measures and reforms requested by its lenders led to another impasse in the summer of 2015 when Greece, unable to repay its debts, arrived very close to official insolvency. Controls were imposed on Greek banks to avoid a massive flow of capital and the Greek government decided to submit a request for financial assistance to the ESM. After laborious negotiations of 17 hours the parties reached an agreement (the Financial Assistance Facility Agreement) on 13 July 2015. The agreement was approved by national parliaments and on 19 August 2015 by the ESM Board of Governors. The precise amount of ESM financial assistance will depend on the IMF’s decision regarding its participation in financing the programme, and on the success of reform measures by Greece, including the privatisation of state assets[72].

2. The measures adopted

In order to receive the financial support packages, Greece was requested to adopt a series of specific measures of adjustment the implementation of which was monitored in the first two phases (Greek Loan Facility and EFSF) by officials from the European Commission, the European Central Bank and the IMF, the so-called “Troika”, a unique institution of an ad hoc nature whose establishment lacked an appropriate legal basis in primary EU law. For this purpose a Memorandum of Understanding was signed between the member state concerned and the “Troika”, whereby the member state – in our case Greece – undertook to carry out a number of actions in exchange for financial assistance. The assistance was provided on the basis of strict conditionality; thus the successive Greek governments enjoyed limited leeway in the adoption of the measures required to overcome the crisis[73]. The same stands for the ESM: a set of prior actions were requested urgently in order to enter into negotiations for the reform agenda as it was set out in the most recent Memorandum of Understanding which was approved by the ESM Board of Governors on 19 August 2015 following its endorsement by ESM members according to their national procedures. The MoU of August 2015 focuses on four key areas: restoring fiscal sustainability; safeguarding financial stability; boosting growth, competitiveness and investment; and reforming the public administration.

Given the urgency of the situation, the measures adopted at the national level in the course of the three successive financial assistance packages were not carefully balanced leading to restrictions on economic and social rights. A series of laws, presidential decrees and ministerial decisions form the backbone of the austerity legislation. Due to their high number and lengthy content a detailed analysis of the said legal documents is beyond the scope of the present article. We will provide a selection of the most representative legislations adopted and we will focus on the ones that are detrimental on the social rights selected for analysis in the present article: social security and labour rights.

The first set of social rights attacked by austerity measures were labour rights and social security rights. A set of laws[74] introduced tectonic changes, amongst which figure the following[75]:

  • modifications to both public and private pension schemes;
  • reduction of public sector wages by 12% and later a further reduction of 3%.;
  • remuneration of special apprenticeships for people between 15-18 years old with 70% of the general minimum wage, while new entrants in the labour market under the age of 25 would be remunerated with 84% of the general minimum wage;
  • establishment of the wage setting system by law, whereas the minimum wage would be determined by a government decision, after consultation with the social partners;
  • reduction of the general minimum wage by 22% for workers older than 25 years old and by 32% for younger workers;
  • precedence of the company level CEAs over sectoral or occupational ones even if the latter contained more favourable provisions, provided that the safety net of the National General Collective Agreement is observed;
  • arbitration procedures could be initiated only upon mutual consent of the parties, while the arbiter shall take into consideration the economic distress and the requirements of the adjustment programme;

 

Austerity legislation and effective protection of economic, social and cultural rights[76] in Greece

I. Social security rights

Article 12 of the European Social Charter guarantees the right to social security. Pensions are a principal branch of social security[77]. Both the European Court of Human Rights and the European Committee of Social Rights examined cases related to pension cuts, reaching totally different conclusions.

In Koufaki and ADEDY/Greece, the ECtHR found no violation of article 1 Protocol 1 ECHR, guaranteeing the right to property. The Strasbourg court reaffirmed the wide margin of appreciation that states enjoy with regard to their social policy and concluded that the reductions pursued a legitimate aim and were not disproportionate[78]. Moreover, there was no evidence that the applicant run the risk of falling below the subsistence threshold, while the removal of the thirteenth and fourteenth months’ pensions had been offset by a one-off bonus.

To the contrary, the European Committee of Social Rights, concluded in five decisions on collective complaints against Greece that the cumulative effect of the modifications of the pensioners’ social protection were a violation of the right to social security under Article 12 ESC[79]. In particular, the Committee ruled that certain restrictions such as those related to holiday bonuses, restrictions of pension rights in cases where the level of pension benefits is a sufficiently high one and in cases where people are of such a low age that it is legitimate for the state to conclude that it is in the public interest for such persons to be encouraged to remain part of the work-force than to be retired, did not in themselves constitute a violation of the ESC. However, the cumulative effect of the restrictions would bring about an overall degradation in the standard of living of the pensioners concerned.

It is interesting that the Greek Government tried to conform to the decision of the European Committee of Social Rights by notifying to the Committee of Ministers the measures it had taken to remedy the violations. The measures had a twofold approach: firstly the protection of vulnerable groups and secondly the improvement of the social security system. As to the first pillar, the government asserted that the pensions below 1000 euros would be guaranteed, the Benefit of Social Solidarity (EKAS) which is a non-retributive benefit for the protection of the elderly with low pensions would continue to be granted, a pension of 360 euros would be granted for the non-insured elderly based on certain conditions, while according to Law 4052/2012, the programme “Pensioner’s homecare” had been established. It had also introduced favourable regulations regarding the payment of the Extraordinary Special Property Tax, tax exemptions for certain types of pensions, as those granted to war victims, war invalids, blind persons or invalids and beneficiaries of EKAS, while cuts on pensions were not made if the beneficiary or members of his family receive small pensions, or are invalids[80]. As to the improvement of the social security system, the government tried to counter problems of fraud in social security and incidents of “contribution evasion”

While the measures notified are in themselves welcome, it is doubtful whether they are going to last, especially as there is no sign of overcoming the crisis and Greece is supposed to introduce further measures in view of the ESM assistance package she is going to receive.

Contrary to the hesitant approach of the ECtHR regarding the right to social security in economic emergencies, the Inter-American Court of Human Rights has consistently applied a different approach. In case “Five Pensioners”/Peru[81] the problem was the reduction by 78% of the pensions of the public sector workers while by law and Constitutional Court judgments their pension was planned to gradually equalize the salary they used to receive. The Inter-American Commission on Human Rights claimed the violation of articles 21 (right to property), 25 (right to judicial protection) and 26 (progressive development) of the Convention. The respondent state, for its part, invoked the argument of the state of emergency due to the economic crisis that it faced at that time.

The Court dwelt upon two questions: a) whether the right to a pension could be considered an acquired right, and b) what parameters should be taken into consideration to quantify the right to a pension, and whether it is possible to cap a pension[82].

Although the first question has been answered in the negative by the ECtHR in Koufaki and ADEDY/Greece[83], the IACtHR followed its own path of reasoning, assisted in part by the Constitution of the country and the jurisprudence of its Constitutional Court. Indeed, the former stipulated in its provisions that the “social regimes established for the pensions of public sector employees do not affect legally acquired rights, particularly the right corresponding to the regimes of Decree Laws 19990 and 20530”[84] (these decrees constitute the legal basis for the granting of the pensions in question). Furthermore, the Constitutional Court indicated that, once the requirements for granting a pension set forth in Decree Law No. 20530 have been fulfilled, the employee: “[…] incorporates into his patrimony, by virtue of the express authority of law, a right that is not subject to recognition by the Administration, that is not something that the law grants in some way, that, as has been recalled, arises from compliance with the requirements established by law. Thus, those who were subject to the regime of Decree Law 20530 and who, until the entry into force of Legislative Decree 817 had already complied with the requirements indicated in the norm, that is, they had worked for twenty years or more, have the right to an equalized pension, in accordance with the provisions of Decree Law 20530 and its modifying provisions”[85]. Bearing into consideration the foregoing, the IACtHR concluded that the right to property, stipulated in the ACHR, protects also the right of the applicants to receive an equalized retirement pension in the sense that it is an acquired right[86]. The Court referred also to the limitation clause of the San Salvador Protocol (article 5), holding that, although states may restrict the enjoyment of socio-economic rights in order to preserve the general welfare in a democratic society, and consequently the right to property, such restriction should take place only through the appropriate legal procedure[87]. However, in the instant case no legal process has been applied.

What is most important in the Court’s reasoning is indeed its approach of the right to property in conjunction with the right to a pension. The Court emphasized that from the time that a pensioner pays his contributions to the pension fund, ceases to work for the institution in question and opts for the retirement regime set forth in the law, such pensioner acquires the right to have his pension governed by the terms and conditions established in such law. It is a very important statement, especially if we take into account the adjustments brought about to pension systems all over the world due to the current economic crisis[88]. The Court applied the same reasoning in another case brought before it by the Commission against Peru[89].

Of particular interest is the dictum of the Court regarding the violation of article 26 of the American Convention on Human Rights. The Court did not deny its violation. Instead, it refused to pronounce upon it, stressing that the progressive development of economic, social and cultural rights should be measured in relation to the growing coverage of the right to social security and to a pension of the entire population and not in the circumstances of a very limited group of pensioners[90]. In any case, it did not preclude a prospective violation of the article in the factual and legal framework of another case[91].

 II. Labour rights

The right to a decent remuneration which is enshrined in article 4 of the European Social Charter[92] was examined thoroughly by the ECSR in complaint no. 66/2011. The Committee examined the differentiated reduction of the minimum wage of people under 25 and it concluded that it constituted a violation of the right to fair remuneration[93]. The Committee held that although in certain circumstances it is acceptable to pay a lower minimum wage to young workers, this wage must under no circumstances fall under the poverty level of the country. In the same set of decisions (no 65/2011), the Committee has found further violations of article 4 ESC, in particular para. 4. More specifically, the Greek state by equating the first twelve months of employment in an open-ended contract with a trial period, made dismissal without notice or compensation possible during this period, thus violating directly article 4 para. 4 ESC.

Unlike the decisions on violations of the right to social security, where the Greek Government has introduced measures of remedy, here the Greek delegation before the Committee of Ministers, while accepting the conclusions of the ECSR, it pointed out that the measures were of a provisional nature and that the Greek Government had the firm intention to revoke these measures as soon as the economic situation of the country would allow. However, due to the political and economic constraints, “it was not possible to envisage a set timeframe, although it was unlikely that tangible results in Greece would be apparent before 2015”[94].

In this respect we should also cast an eye on the jurisprudence of the Inter-American Court of Human Rights. The right to salary was central in case Abrill Alosilla et al./Peru[95], regarding the retroactive application of decrees that between 1991 and 1992 eliminated the salary scale system that was in effect. Although the state acknowledged its international responsibility before the Commission (in relation to the right of “amparo” – article 25 ACHR – and not the right to property – article 21 ACHR), the failure to conclude promptly a friendly settlement brought the case before the IACtHR.

In this case, the Court did not make any specific reference to economic, social and cultural rights or the San Salvador Protocol. Nevertheless, the national legal documents examined by the Court (judgments of the Constitutional and Social Law Chamber of the Supreme Court of Justice) and the facts of the case imply the violation of socio-economic rights and in particular the right to receive remuneration.

The issue in question was the repeal, by virtue of decrees with retroactive effect, of the salary adjustment system known as “salary scales”.  This system was not subject to collective bargaining and consisted of the automatic adjustment of monthly remuneration for the personnel at that time denominated as Functionaries and Senior Management, taking as its basis a) the remuneration of the unskilled laborer or lowest position at the company and b) the Salary Scales or Indexes, or Variation Coefficients previously established and assigned to each position. In effect, each time the company increased the salary of the lowest positions as a consequence of a collective bargaining process, by necessity it also resulted in increases for the other positions in the company that could not benefit from that process[96]. The suppression of the “salary scales” system had as a result not only the reduction of salaries but also the retroactive collection of payments[97].

The Court reminded that it has developed a broad concept of property and that it has, through article 21 ACHR, protected vested rights, which are understood as “rights that have become part on an individual’s wealth”[98]. It also emphasized that the principle of non-retroactivity of the law meant that the new law does not have the authority to regulate juridical situations that have been duly consolidated. In this respect the IACtHR observed that the “salary scales” system had generated an increase in wages that had become part of the wealth of the victims, i.e. a vested right. The Court differentiated between the system of salary adjustments, which was not a right of the victims per se, and the salary increases already received that had already become part of the workers’ wealth. In effect, the latter constituted a vested right that was affected by the retroactive application of the law, resulting in violation of the right to property[99].

One should note the “human face” shown once more from the Court, regarding the personal situation of the applicants. In effect, the IACtHR paid particular attention to the fact that all workers had organized their finances based on their salaries and that the salary reduction compromised their opportunity to provide, for instance, economic support to sick family members, while some of them were obliged to sell possessions. It is a human approach that we rarely observe in an international tribunal, even a human rights one[100].

Concluding remarks

Even though international bodies reaffirm in every occasion that retrogression in the protection of economic, social and cultural rights is prohibited and despite the reassurances of the Greek government in one set of complaints before the ECSR that it is doing everything possible to guarantee the protection of vulnerable groups, the situation in Greece is far from stabilising or improving. The new request of assistance before the ESM brings along a new series of measures affecting socio-economic rights (Laws 4389/2016 and 4387/2016) and a great array of privatisations in public assets and organisations that touch upon the minimum core of social rights. A salient example is the announced privatisation of the Athens and Thessaloniki Water and Sewerage Company against the ruling of the Greek Council of State[101] that such a move could put public health at risk due to the uncertainty regarding the quality and affordability of the services[102]. We have a long way ahead until we can declare with certainty that socio-economic rights in Greece enjoy the level of protection they did before the economic crisis.

Notes

[1] Loi travail : 17 % de grévistes à la SNCF pour la première journée de grève illimitée, Le Monde.fr avec AFP, 01.06.2016, http://www.lemonde.fr/economie/article/2016/06/01/loi-travail-debut-d-un-mouvement-de-greve-illimitee-a-la-sncf_4929935_3234.html

[2] Garcia Pedraza P., Crisis and social rights in Europe. Retrogressive measures versus protection mechanisms, Institute for Human Rights, Åbo Akademi University, 2014, p. 18.

[3] See articles 1, 55, 56, 61, 62, 68.

[4] There is a general consensus that most of the human rights norms enumerated in the UDHR have acquired a status of customary law, see in particular, Henkin L., The age of rights, Columbia University, New York, 1990; Meron T., Human rights and humanitarian norms as customary law, Clarendon Press, Oxford, 1989. This argument is further corroborated by the fact that the UN Human Rights Council in its Universal Periodic Review mechanism (established in 2006 by virtue of UNGA res. 60/251) is using as a reference instrument not only the human rights treaties binding upon states and the UN Charter but also the UDHR.

[5] UNGA res. 217 A/10.12.1948.

[6] For this categorization see Karel V. Human rights: A thirty year struggle. The sustained efforts to give force of law to the Universal Declaration of Human Rights. UNESCO Courier, 30:11, Paris, November 1977. Contemporary scholars have overridden this conceptualization (see infra).

[7] Mowbray A., The development of positive obligations under the European Convention on Human Rights, Human Rights Law in Perspective, vol. 2, Hart Publ., Oxford-Portland Oregon, 2004.

[8] Adopted by the World Conference on Human Rights in Vienna on 25 June 1993.

[9] ibid. Part. I, §5.

[10] Proclamation of Teheran, Final Act of the International Conference on Human Rights, Teheran, 22 April to 13 May 1968, U.N. Doc. A/CONF. 32/41 at 3 (1968).

[11] See for instance, General Comment no 9 “The domestic application of the Covenant”, UN doc. E/C.12/1998/24, 3.12.1998: “The adoption of a rigid classification of economic, social and cultural rights which puts them, by definition, beyond the reach of the courts would thus be arbitrary and incompatible with the principle that the two sets of human rights are indivisible and interdependent”, §10.

[12] International Convention on the elimination of all forms of racial discrimination, UNGA res. 2106 (XX), 21.12.1965; Convention on the Elimination of all forms of discrimination against women, A/RES/34/180, 18.12.1979; Convention on the rights of the child, A/RES/44/25, 20.11.1989; International Convention on the protection of the rights of all migrant workers and members of their families, A/RES/45/158, 18.12.1990; Convention on the rights of persons with disabilities, A/RES/61/106, 24.1.2007.

[13] See for an account of the relevant discussion, Craven M., The International Covenant on Economic, Social and Cultural Rights: a perspective on its development, Clarendon Press, Oxford, 1995; Eide A., Economic, social and cultural rights as human rights, in Falk R., Human rights: critical concepts in political science, Routledge, London, 2008, p. 299-318.

[14] See A/RES/6/543, 4.2.1952.

[15] A/RES/2200(XXI) A, 16.12.1966. ICCPR has 167 ratifications, whereas ICESCR 160.

[16] Arts 28 et seq. ICCPR. Similar committees of independent experts have been set up by all core human rights treaties.

[17] Art. 16 ICESCR. The procedure of examination is described in arts 16-23 ICESCR.

[18] “Review of the composition, organization and administrative arrangements of the Sessional Working Group of Governmental Experts on the Implementation of the International Covenant on Economic, Social and Cultural Rights”, Economic and Social Council resolution 1985/17.

[19] Convention for the Protection of Human Rights and Fundamental Freedoms (as amended by Protocols no 11 and 14), Rome 4 XI 1950, ETS 005.

[20] The Council of Europe promotes the indivisibility of human rights and the ECtHR has emphasised already in its very early jurisprudence that “there is no water-tight division” between social and economic rights and civil and political rights, Airey/Ireland, appl. no. 6289/73, judgment 9.10.1979, para. 26. The regional court that has an extensive jurisprudence on economic, social and cultural rights through an expansive interpretation of civil and political rights is the Inter-American Court of Human Rights, see in that respect Saranti V., Economic, social and cultural rights in the Western Hemisphere under the prism of the Inter-American Court of Human Rights case-law, Annuaire International des Droits de l’Homme, VII/2012-2013, p. 515-553.

[21] Greece ratified the European Social Charter on 6 June 1984 by virtue of Law 1426/1984 accepting 67 of the Charter’s 72 articles. The Revised European Social Charter has been ratified on 18 March 2016. Greece has also ratified the Additional Protocol and has accepted the system of collective complaints on 18 June 1998. However, it has not made the declaration that would allow non-governmental organisations to submit collective complaints.

[22] In 2000 the European Parliament approved the Charter which was given legally binding force in 2010 when it was incorporated into the consolidated version of the TEU, by virtue of article 6 TEU that declared that the Charter shall have the same legal value as the Treaties. However, UK and Poland have chosen for a special status through the Protocol on the Application of the Charter of Fundamental Rights of the EU to Poland and to the United Kingdom. Pursuant to this instrument, the ability of the Court of Justice of the EU or any other court or tribunal of Poland or of the United Kingdom is not extended to find that the laws, regulations or administrative provisions, practices or action of Poland or of the United Kingdom are inconsistent with the fundamental rights, freedoms and principles that are reaffirmed by the Charter. Thus the Charter does not create justiciable rights applicable to Poland or the United Kingdom except in so far as Poland or the United Kingdom have provided for such rights in their national law. See http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:C:2007:306:0156:0157:EN:PDF

[23] Vienna Declaration and Programme of Action, Adopted by the World Conference on Human Rights in Vienna on 25 June 1993, §5,  http://www.ohchr.org/EN/ProfessionalInterest/Pages/Vienna.aspx

[24] See for a general discussion Coomans F. (ed.), Justiciability of economic and social rights. Experiences of domestic systems, Intersentia, Antwerp, 2006; de Schutter O., International human rights law, Cambridge University Press, 2010, p. 740-771; Langford M. (ed.), Social rights jurisprudence: emerging trends in international and comparative law, CUP, 2009; Liebenberg S., The protection of economic and social rights in domestic legal systems, in Eide A., Krause C., Rosas A. (eds.), Economic, Social and Cultural Rights. A textbook, 2nd ed., Martinus Nijhoff Publ., 2001, p. 55-84; Matscher F. (ed.), The implementation of economic and social rights: national, international and comparative aspects, N. P. Engel, Kehl am Rhein, 1991; Ramcharan B.G. (ed.), Judicial protection of economic, social and cultural rights, Martinus Nijhoff Publ., Leiden, 2005; Scheinin M., Economic, social and cultural rights as legal rights in Eide A., Krause C., Rosas A. (eds.), Economic, Social and Cultural Rights. A textbook, 2nd ed., Martinus Nijhoff Publ., 2001, p. 29-54.

[25] Dennis M.J., Stewart D.P., Justiciability of economic, social and cultural rights: should there be an international complaints mechanism to adjudicate the rights to food, water, housing and health? 98 AJIL, 2004, p. 462-515 ; Bossuyt M., La distinction juridique entre les droits civils et politiques et les droits economiques, sociaux et culturels, 8 Revue des Droits de l’Homme, 1975, p. 783-820; Vierdag E.W., The legal nature of the rights granted by the International Covenant on Economic, Social and Cultural Rights, 9 Netherlands Yearbook of International Law, 1978, p. 69-105.

[26] For instance, the European Court of Human Rights has repeatedly reaffirmed that states parties enjoy a wide margin of appreciation, when they determine their social policy, especially if their resources are limited and they have to set priorities, see Koufaki and ADEDY/Greece, nos. 57665/12 and 57657/12, decision 7.5.2013, §31 ; Terazzi S.r.l./ Italy, no 27265/95, 17.10.2002 ; Wieczorek/Poland, no 18176/05, 8.12.2009 ; Jahn et al./Germany, nos 46720/99, 72203/01 and 72552/01; Mihaieş and Senteş/ Romania, nos 44232/11 and 44605/11, decision 6.12.2011 ; Frimu and 4 other applications/Romania, nos 45312/11, 45581/11, 45583/11, 45587/11 and 45588/11, decision 7.2.2012, §§40, 42 ; OReilly et al./Ireland, no 54725/00, decision 28.2.2002 ; Pentiacova et al./Moldova, no 14462/03, decision 4.1.2005 ; Huc/Romania and Germany, no 7269/05, decision 1.12.2009, § 64.

[27] See art. 2 §3 ICCPR, art. 13 ECHR, 25 ACHR. The African Charter on Human and Peoples’ Rights does not contain an equivalent provision. However, article 26 of that instrument stipulates that: “States parties to the present Charter shall have the duty to guarantee the independence of the Courts and shall allow the establishment and improvement of appropriate national institutions entrusted with the promotion and protection of the rights and freedoms guaranteed by the present Charter”.

[28] See, van Hoof G.J.H., The legal nature of economic, social and cultural rights: a rebuttal of some traditional views, in Alston P., Tomasevski K. (eds.), The right to food, Martinus Nijhoff Publ., 1984, p. 97-110.

[29] Chapman A., “Violations approach” for monitoring the International Covenant on Economic, Social and Cultural Rights, 18 Human Rights Quarterly, 1996, p. 23-66. Also, Chapman A., Russell S. (eds.), Core obligations: building a framework for economic, social and cultural rights, Intersentia, Antwerp, 2002.

[30] Committee on Economic, Social and Cultural Rights, General Comment no. 3, “The nature of states parties’ obligations (art. 2 §1 of the Covenant)”, UN doc. E/1991/23-E/C.12/1990/8, Annex III, §10.

[31] ibid. §12.

[32] General Comment no. 9, “The domestic application of the Covenant”, UN doc. E/1999/22, §10. See also decisions of national courts that give effect to socio-economic rights such as the right to housing, the right to education and the right to food, Government of the Republic of South Africa/Grootboom and others, Constitutional Court of South Africa, judgment of 4.10.2000; Yated – Non – Profit Organization for Parents of Children with Down Syndrome and 54 Parents/Ministry of Education, Supreme Court of Israel, judgment of 14.8.2002 (HCJ 2599/00); People’s Union for Civil Liberties and another/Union of India and others, Supreme Court of India, judgment of 2.5.2003. Relevant excerpts are quoted in de Schutter O., International human rights law, Cambridge University Press, 2010, p. 751 et seq.

[33] “The nature of states parties’ obligations (art. 2 §1 of the Covenant)”, UN doc. E/1991/23-E/C.12/1990/8, Annex III, §5.

[34] ibid. §9. See also the Limburg Principles on the Implementation of the ICESCR, UN doc. E/CN.4/1987/17, “Although the full realization of the rights recognized in the Covenant is to be attained progressively, the application of some rights can be made justiciable immediately while other rights can become justiciable over time” (principle no 8).

[35] Similarly, despite the absence of a clause on effective remedies in the Convention on the Rights of the Child, the respective Committee has emphasized that effective national remedies must be available to redress violations, underlining that “economic, social and cultural rights, as well as civil and political rights, must be regarded as justiciable”, see General Comment no. 5 “Implementation of the Convention on the Rights of the Child, arts 4, 42 and 44 §6, UN doc. CRC/GC/2003/5, 27.11.2003.

[36] General Comment no. 9, “The domestic application of the Covenant”, UN doc. E/1999/22, §7.

[37] See, for instance, Mayagna (Sumo) Awas Tingni/Nicaragua, 31.8.2001.

[38] Office of the UN High Commissioner for Human Rights, Economic, Social and Cultural Rights. Handbook for National Human Rights Institutions, New York and Geneva, 2005, p. 50.

[39] Art. 2 para. 1 ICESCR.

[40] See General Comment no 3 The nature of States parties’ obligations (art. 2, para. 1, of the Covenant), §10,  “a minimum core obligation to ensure the satisfaction of, at the very least, minimum essential levels of each of the rights is incumbent upon every State party. Thus, for example, a State party in which any significant number of individuals is deprived of essential foodstuffs, of essential primary health care, of basic shelter and housing, or of the most basic forms of education is, prima facie, failing to discharge its obligations under the Covenant”.

[41] Sepúlveda Carmona M., Alternatives to austerity: a human rights framework for economic recovery, in Nolan A. (ed.), Economic and social rights after the global financial crisis, CUP, 2014, pp. 25-27.

[42] In the “Maastricht Guidelines” it is described as “margin of discretion”, Masstricht Guidelines on Violations of Economic, Social and Cultural Rights, Maastricht, January 22-26, 1997, para. 8.[43] General comment No. 3:  The nature of States parties’ obligations (art. 2, para. 1, of the Covenant), Fifth session (1990), UN doc. E/1991/23, para. 9.

[44] See, Press Release no 71/16, Inter-American Commission on Human Rights Expresses its Concern Regarding the Declaration of a “State of Exception and Economic Emergency” in Venezuela, June 1, 2016.

[45] January 22-26, 1997, para. 6. “On the occasion of the 10th anniversary of the Limburg Principles on the Implementation of the International Covenant on Economic, Social and Cultural Rights (hereinafter ‘the Limburg Principles’), a group of more than thirty experts met in Maastricht from 22-26 January 1997 at the invitation of the International Commission of Jurists (Geneva, Switzerland), the Urban Morgan Institute on Human Rights (Cincinnati, Ohio, USA) and the Centre for Human Rights of the Faculty of Law of Maastricht University (the Netherlands). The objective of this meeting was to elaborate on the Limburg Principles as regards the nature and scope of violations of economic, social and cultural rights and appropriate responses and remedies”, Maastricht Guidelines, Introduction. See, https://www1.umn.edu/humanrts/instree/Maastrichtguidelines_.html

[46] Almost 100 families evicted daily in Spain – statistics, Published time: 6 Mar, 2015, https://www.rt.com/news/238349-spain-families-lose-homes/

[47] “Maastricht Guidelines”, para. 9.

[48] CESCR/48th/SP/MAB/SW, 16.5.2012, http://www2.ohchr.org/english/bodies/cescr/docs/LetterCESCRtoSP16.05.12.pdf

[49] Human Rights Committee, General Comment no 29, States of emergency (article 4 ICCPR), UN doc. CCPR/C/21/Rev.1/Add.11.

[50] Nencheva and others/Bulgaria, appl. no. 48609/06, judgment 18.6.2013, paras. 117 et seq.

[51] Nitecki/Poland, appl. no. 65653/01, judgment 21.3.2002.

[52] Alexsanyan v. Russia, appl. no. 46468/06, judgment 22.12.2008

[53] Yordanova and others/Bulgaria, appl. no. 25446/06, judgment 24.4.2012. See also Winterstein/France, appl. no. 27013/07, judgment 17.10.2013.

[54] Kjartan Ásmundsson/Iceland, appl. no. 60669/00, judgment 12.10.2004; Moskal/Poland, appl. no. 10373/05, judgment 15.9.2009, Larioshina/Russia, appl. no. 56869/00, decision 23.4.2002; Kutepov and Anikeyenko/Russia, appl. no. 68029/01, decision 25.10.2005; Budina/Russia, appl. no. 45603/05, decision 18.6.2009.

[55] Stec and others/ the United Kingdom, appl. nos. 65731/01 and 65900/01, decision 6.7.2005.

[56] Larioshina/Russia, op.cit. See, in general, ECtHR, Seminar Background Paper, 25 January 2013, Implementing the European Convention on Human Rights in times of economic crisis, http://www.echr.coe.int/Documents/Seminar_background_paper_2013_ENG.pdf; Steering Committee for Human Rights (CDDH), The impact of the economic crisis and austerity measures on human rights in Europe, Feasibility study, 84th meeting 7 – 11 December 2015, CDDH(2015)R84 Addendum IV, http://www.coe.int/t/dghl/standardsetting/cddh/CDDH-DOCUMENTS/CDDH%282015%29R84%20Addendum%20IV_EN.pdf

[57] “Vorbehalt des Möglichen”. See, for this doctrine in constitutional law Perlingeiro R., Does the precondition of the possible (Vorbehalt des Möglichen) limit judicial intervention in social public policies? NLUO Law Journal, vol. II, issue I, August 2015, pp. 20-45.

[58] Da Silva Carvalho Rico/Portugal, appl. no 13341/14, decision 1.9.2015, par. 44.

[59] Da Conceiçã Mateus and Santos Januário/Portugal, appl. nos. 62235/12 and 57725/12, decision 8.10.2013

[60] Savickas and Others/ Lithuania, appl. nos. 66365/09 et al., decision of 15.10.2013.

[61] The dissenting judges contented that the majority has expanded the scope of the right to property, since article 1 of Protocol No. 1 has never been interpreted “by this Court as obliging member States to provide persons with the right to social security benefits, in the form of disability pensions, independently of their having an assertable right to such a pension under domestic law”, Béláné Nagy/Hungary,appl. no 53080/13, judgment 10.2.2015, joint dissenting opinion of judges Keller, Spano and Kjølbro, para. 1.

[62] Priewe J., What went wrong? Alternative interpretations of the global financial crisis, in UN Conference on Trade and Development – Hochschule für Technik und Wirtschaft Berlin, The financial and economic crisis of 2008-2009 and developing countries, 2010, p. 17-18.

[63] Dullien S., Kotte D., Márquez A., Priewe J., Introduction, in UN Conference on Trade and Development – Hochschule für Technik und Wirtschaft Berlin, The financial and economic crisis of 2008-2009 and developing countries, 2010, p. 1.

[64] Priewe J., What went wrong? Alternative interpretations of the global financial crisis, op.cit.

[65] See for further details and legal documents, http://www.efsf.europa.eu/about/index.htm

[66] T/ESM 2012-LT/en.

[67] See for relevant information and legal documents, http://www.esm.europa.eu/index.htm

[68] Garcia Pedraza P., Crisis and social rights in Europe. Retrogressive measures versus protection mechanisms, Institute for Human Rights, Åbo Akademi University, 2014, p. 7.

[69] Skogly S., The human rights obligations of the World Bank and the International Monetary Fund, Cavendish Publ. Ltd, London/Sydney, 2001.

[70] In October 2009, the incumbent greek government discovered a high fiscal deficit amounting to 15,7% of GDP and a public debt amounting to 129,7% of GDP. These unexpected high numbers resulted in the downgrade of Greece’s sovereign debt by Fitsch, Standard & Poor’s and Moody’s which had as a consequence the inability of the government to receive funding from the financial markets. See for a brief account of the facts, ELSA, International legal research group on social rights, Final report: austerity measures and their implications. The role of the European Social Charter in maintaining minimum social standards in countries undergoing austerity measures, July 2015, pp. 647-648.

[71] The assistance was finally provided on the basis of article 143 TFEU according to which when a member state is in difficulties regarding its balance of payments either as a result of an overall disequilibrium in its balance of payments or as a result of the type of currency at its disposal and where such difficulties are liable to jeopardize the functioning of the internal market or the implementation of the common commercial policy, the Commission shall recommend to the Council the grant of mutual assistance.

[72] ESM Programme for Greece, http://www.esm.europa.eu/assistance/Greece/index.htm.

[73] See in that respect P7_TA(2014)0239, Role and operations of the Troika with regard to the euro area programme countries, European Parliament resolution of 13 March 2014 on the enquiry on the role and operations of the Troika (ECB, Commission and IMF) with regard to the euro area programme countries (2013/2277(INI)).

[74] Law 3833 of 15 March 2010, Law 3845 of 6 May 2010, Law 3847 of 11 May 2010, Law 3863 of 15 July 2010, Law 3865 of 21 July 2010, Law 3866 of 26 May 2010, Law 3896 of 1 July 2011, Law 3986 of 1 July 2011, Law 4002 of 22 August 2011 and Law 4024 of 27 October 2011, Law 4046/2012, 4051 of 28 February 2012, Law 4093/2012 of 12 November 2012, Law 4172/2013. Joint Ministerial Decision 6/28.02.2012

[75] See for a detailed description of the measures adopted, ELSA, International Legal Research Group on Social Rights, Austerity measures and their implications. The role of the European Social Charter in maintaining minimum social standards in countries undergoing austerity measures, July 2015, pp. 646-754.

[76] See for a general reference to Europe, Poulou A., Austerity and European Social Rights: How Can Courts Protect Europe’s Lost Generation?, 15 German Law Journal, 2014, pp. 1145-1176; Jimena Quesada L., Adoption and rejection of austerity measures: current controversies under European law (focus on the role of the European Committee of Social Rights), Revista catalana de dret públic, núm 49, 2014, pp. 41-59.

[77] Committee on Economic, Social and Cultural Rights, General Comment No. 19,The right to social security (art. 9), E/C.12/GC/19, 4.2.2008, par. 15.

[78] Koufaki and Adedy/Greece, appl. no 57665/12 and 57657/12, Decision 7.5.2013, par. 31, 41, 44-46.

[79] Federation of employed pensioners of Greece (IKA-ETAM) v. Greece (no. 76/2012); Panhellenic Federation of public service pensioners v. Greece (no. 77/2012); Pensioner’s Union of the Athens-Piraeus Electric Railways (I.S.A.P.) v. Greece (no. 78/2012); Panhellenic Federation of pensioners of the public electricity corporation (POS-DEI) v. Greece (no. 79/2012); and Pensioner’s Union of the Agricultural Bank of Greece (ATE) v. Greece (no. 80/2012). All decisions on the merits were rendered on 7 December 2012.

[80] Resolution CM/ResChS(2014)7 et seq. adopted by the Committee of Ministers on 2 July 2014 at the 1204th meeting of the Ministers’ Deputies.

[81] C-98, 28.2.2003.

[82] ibid. §95.

[83] With regard to the right to property it stated that it should not be interpreted as giving right to a pension of a determined amount, §33 (with further references to the Court’s case-law).

[84] Five pensioners, op.cit. §97.

[85] ibid. §98.

[86] ibid. §102.

[87] ibid. §116.

[88] See in that respect the judgment of the European Court of Human Rights in Koufaki et ADEDY/Greece, op.cit.

[89] Acevedo Buendía et al. (“Discharged and Retired Employees of the Comptroller”)/Peru, C-198, 1.7.2009.

[90] ibid. §147. See, also the Reasoned Concurring Opinion of Judge Sergio García Ramírez.

[91] However, in case Acevedo Buendía (§106) that followed it did not find a violation of article 26 ACHR, stating that the issue under consideration was not a measure adopted by the State that hindered the progressive realization of the right to pension but it was rather the non-compliance of the state with the payment ordered by the domestic courts. Therefore, the violated rights were only the right to amparo and the right to property. This was a landmark judgment in that the Court, shortly after the adoption of the Optional Protocol to the ICESCR, emphasized the existence of the “principle of non regression” regarding the limitations in the exercise of a right, Burgorgue-Larsen L., Úbeda de Torres A., op.cit. p. 632-635.

[92] With a view to ensuring the effective exercise of the right to a fair remuneration, the Contracting Parties undertake: 1 to recognise the right of workers to a remuneration such as will give them and their families a decent standard of living; 2 to recognise the right of workers to an increased rate of remuneration for overtime work, subject to exceptions in particular cases; 3 to recognise the right of men and women workers to equal pay for work of equal value; 4 to recognise the right of all workers to a reasonable period of notice for termination of employment; 5 to permit deductions from wages only under conditions and to the extent prescribed by national laws or regulations or fixed by collective agreements or arbitration awards. The exercise of these rights shall be achieved by freely concluded collective agreements, by statutory wage fixing machinery, or by other means appropriate to national conditions.

[93] General Federation of Employees of the National Electric Power Corporation (GENOP-DEI) and Confederation of Greek Civil Servants’ Trade Unions (ADEDY) v. Greece (no. 65 and 66/2011), decision on the merits of 23 May 2012, “As such, the provisions of Section 74§8 of Act 3863/2010, and now Section 1§1 of Ministerial Council Act No 6 of 28-2-2012, are not in conformity with Article 4§1 in the light of the non-discrimination clause of the Preamble of the 1961 Charter”.

[94] Committee of Ministers, Resolution CM/ResChS(2013)3, Adopted by the Committee of Ministers on 5 February 2013 at the 1161st meeting of the Ministers’ Deputies.

[95] C-223, 4.3.2011.

[96] ibid. §53.

[97] ibid. §64.

[98] ibid. §82.

[99] ibid. §§84-85. The case was recently closed (21.6.2013), when the last payments were received. The remedies for material and moral damages, costs and expenses, as a whole, amounted to a total of nearly 3 million dollars, see Resolución de la Corte Interamericana de Derechos Humanos, 22.5.2013, Caso Abrill Alosilla y otros vs. Perú, Supervisión de Cumplimiento de Sentencia.

[100] There is no doubt that the IACtHR case-law has been influenced a great deal by the enlightened long-year presidency of judge A.A. Cançado Trindade, who is a dedicated figure of the “human face” of international law, see in particular his book, “Le droit international pour la personne humaine”, Pedone, Paris, 2012.

[101] Judgment no 1906/2014, 28.5.2014.

[102] Realising the human rights to water and sanitation: A Handbook by the UN Special Rapporteur Catarina de Albuquerque, 2014, Book 6: Access to justice for violations of the human rights to water and sanitation, p. 9.

The Discourse on Human Rights and the International Regime of Human Rights

Introduction

The controversies surrounding the rights and freedoms which we are entitled to have complex sides, and often depend on the justification used for recognizing the rights. The common justification used in defense of these rights is our nature, which again triggers many other questions.  Do we have unique attributes justifying the recognition of certain rights? Is the human being a social being or a self-centered, autonomous unit? Is s/he a nice or humane person? If the latter is not the case why punish inhuman or cruel behavior? Who is to decide what the requirements of the state of nature are for purposes of forming the human rights law, and how? Should this be left to religion, culture, reason, governments or the requirements for survival? Is the human rights talk basically a religious talk? Is it essentially a political subject-matter? Do human rights exist? If they do, are they universal, to be interpreted and applied in the exact same ways globally, or are they relative – to be harmonized with the local religious, cultural, political and other requirements? How were these questions answered by the international community when it developed the international regime of human rights?

The existence of the international community itself is sometimes questioned, especially by the adherents of realpolitik, mainly because there is no centralized legislative and law enforcing body. Instead, the skeptics speak of the presence of ‘international societies’ and the anarchical international order. Yes, international law is weak because its foundation is state sovereignty, and it lacks a centralized law-enforcing body. However, that in itself does not prevent the emergence of an international community. No one denies that international law is disregarded by some or many states now and then. Individuals and political actors too violate or disregard national laws, yet, we hardly question the existence of these laws or the national communities when this happens. Just as national laws and national communities are socio-political constructions, international law and the international community too are socio-political construction that exist because we need them.

The fact remains that the overwhelming majority of states use international law on a daily basis – to facilitate trade and commerce, to regulate health issues, to facilitate communication, to stimulate tourism, to promote educational, cultural or other activities. All the sovereign states are members of the United Nations, and meet regularly to discuss matters of common interest. This organization has clear-cut purposes and principles and monitoring bodies. It is true that the system is based on state sovereignty (article 2(1) of the Charter). However, there is also the requirement to comply in good faith with obligations assumed under the ratified legal international instruments (art. 2.2 of the Charter). Failure to do so has political consequences, because disruptive or anarchical conducts are not accepted. When international peace, security and order are threatened, the UN Security Council is required to respond to restore the international order (collective security). Its decisions are binding on all states (articles 24 and 25 of the Charter). The UN and its members have always proceeded on the assumption that there is an international community that is legally formed.

The UN is not the only international organization that is responsible for the international regime of human rights. The International Labour Organization, UNESCO, WHO, FAO, regional organizations and non-governmental ones too influence the direction in which the regime of human rights regime is developing. ILO uses more than 180 conventions related to economic and social rights (and recommendations), more instruments than those adopted by the UN. The same can be said about the mandates, laws and activities of the other specialized agencies. Their relationship with the UN is coordinated by the UN Economic and Social Council, as provided by articles 63 and 64 of the UN Charter. Regional organizations and non-governmental organizations also cooperate with these agencies and with the UN even if they have their own human rights mandates, bodies and activities. While it would be wrong to claim that there is no tension in how all these organizations operate when pursuing their respective human rights agendas, the differences that exist are sometimes exaggerated.

The existence of the international regime of human rights is questioned or belittled mostly because of skepticism towards international law. The factors which speeded up the evolution of international human rights law are linked to the horrors endured during World War II. The peoples of the world were alarmed by the grotesque instances of inhumanities and the sufferings of that time as well as by the disorder and devastation that accompanied it, evils which took the lives of well over one hundred million people. By the end of that war, the insecure and militarily exhausted states, including the victorious powers, had to take a pause for soul searching to find the formula for ensuring lasting peace and stability without sacrificing human values. It was abundantly clear that the ideological and political goals of the aggressive powers were hostile to the human rights values. There was no international human rights regime in place to challenge their conduct. The earlier organizations were not fit for this, which is why the Concert of Europe or the League of Nations failed to guarantee international peace and justice. If the new international organization that was contemplated for the post-World War II era was to be legitimate and endure, it had to embrace human rights values. The only problem ahead was on whose image this world order should be shaped. Both the Western and the Eastern powers were determined to use their political and diplomatic weapons to win the hearts and minds of the peoples of the world.

The drafters of UN Charter justified the universal promotion of human rights based on “faith in fundamental human rights, in the dignity and worth of the human person (and), in the equal rights of men and women”. Now that the professed racist powers were militarily crushed, it became inconceivable to tolerate the kinds of inhumane political systems these states once had or to resist the emergence of an international order based on the promotion of respect for human rights. It is true that the Allied Powers were forced to enter that war for self-defense rather than in opposition to racist policies and conducts. However, once the war was in full swing, the narratives had changed to that of a military campaign against Fascists and Nazis and their sympathizers: a struggle between good and evil (progressives and reactionaries).

The inscription of human rights in the UN Charter, in 1945, transformed the idea of human rights from a philosophical and national legal concept to a universal legal concept. The UN was also given the mandate of “promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language, or religion” (article, paragraph 3) More specifically, its General Assembly, and the Economic and Social Council, under it were assigned to promote: “Universal respect for, and observance of, human rights and fundamental freedoms for all without distinction as to race, sex,    language, or religion.” (art. 55, and 60. Emphasis added).

Further, the members of the UN gave their pledge, under article 56, “to take joint and separate action in co-operation with the Organization for the achievement of the purposes set forth in Article 55.” Although the political and legal pillars for constructing the international regime of human rights were clearly made, in 1945, it took time before this regime emerged since it could not operate without defining the rights and obligations and developing the monitoring mechanisms.

The UN Charter does not list the human rights that should be acknowledged, although reference is made, in broad and vague ways, to the obligations to respect the principle of equal rights (art. 1(2), 1(3)) and some of some economic and social rights (article 55, 73 and 76), especially in the context of the dependent territories (colonies). The task of preparing the document which lists these human rights was left to the General Assembly which was expected to initiate studies and make recommendations for “the progressive development of international law and its codification” and “assisting in the realization of human rights and fundamental freedoms” (art. 13.1.a. and c. of the Charter).

When the UN started to prepare the first universal instrument which would identify, define and proclaim the human rights that should be recognized (by the Universal Declaration of Human Rights) the ideological controversies relating to discourse on human rights surfaced in highly politicized ways. As expected, the Western states defended the individualized civil and political rights in line with their national laws and political traditions. The Socialist states propagated for economic and social rights, loyal to the Marxian traditions. The Latin America states stood behind the Western position since they had similar political systems to that of the West. The Organization of the American States even proclaimed its own Declaration on the Rights and Duties of Man before the UN proclaimed the Universal Declaration of Human Rights. Most of the remaining Third World countries backed both positions, although they were worried about the political implications of some of the political rights. Since it was known from the outset that this instrument was not intended to be legally binding (because under article 10 of the Charter the UN General Assembly resolutions are only recommendatory) the insertion of both these sets of rights did not prove to be problematic. After all, as the last paragraph of this Declaration makes it plain this instrument was to serve merely “as a common standard of achievement …to promote respect for these rights and freedoms and by progressive measures… to secure their universal and effective recognition and observance”.  Still, the six Socialist States, South Africa and Saudi Arabia abstained when the Universal Declaration was proclaimed on 8 December 1948.

Using this new standard setting, the UN General Assembly proceeded to prepare and adopt other non-binding declarations which were intended to provide protection from race and gender-based discrimination and to defend the rights of the members of vulnerable groups, such as, children, refugees, the disabled, etc. While these instruments defined the rights of the beneficiaries and mentioned the kinds of measures that should be taken to make them practical, they lacked the enforcement mechanisms precisely because they were not perceived to be legally binding.[1] Later, however, this ‘soft-law’ political approach was complemented by preparing and adopting binding human rights conventions which came into force through ratification.[2]

We now have not only an international regime of human rights which uses international law, but also two separate paths to monitor how states conduct themselves in accordance with their  human rights obligations. The convention-based monitoring bodies consider the reports of states submitted pursuant to the ratified legal instruments and publish their reports. They also examine the petitions sent by victims and state parties who allege the existence of human rights violations, provided that the concerned state has accepted this system. The UN Charter-based monitoring bodies consider the reports of states and those submitted by states, by special rapporteurs (country-rapporteurs and thematic rapporteurs), by working groups and others. Bearing this in mind the UN Human Rights Council publishes country reports on the human rights situation inside states. The High Commissioner for Human Rights represents the UN on matters concerning human rights also by visiting states, conducting inquires or fact-finding missions, to inspire states to ratify human rights instruments, etc.. The UN High Commissioner for Refugee follows developments concerning refugees, including when it comes to mobilizing contributions for the welfare of refugees, urging states to share the burden of accepting refugees and ending the involuntary deportation of asylum seekers whose lives could be endangered. There are many other UN offices, units and programs that also provide important functions or monitor human rights issues. Among these are UNICEF, World Food Programme, UN-Habitat, and the Commission on the Status of Women. Complementing these are also the human rights mechanisms that are used by the specialized agencies and the regional organizations.

With all this evidence at hand, it is difficult to deny that we now have an international regime of human rights which is politically and legally constructed in the process of giving effect to the purposes and principles of the UN Charter. This regime governs how states behave in the field of human rights by monitoring the application of the adopted international instruments. This is not to deny that this regime has weaknesses emanating from the absence of centralized legislative and enforcement bodies. If the existence of regimes is measured on the basis of the strength of the applicable laws or the strength of the monitoring bodies and mechanisms of these laws, then the existence of many national regimes would also come to doubt. Clearly, there is a long way to go before one is fully satisfied and the political roads ahead may not be that smooth. Bridging the ideological and political gaps surrounding the human rights debate is far from easy. But it is equally important not to forget or deny what has been achieved. The UN has managed to navigate through the past troubled waters. How this was done will be clarified later after first examining closely what the contentious ideological and political positions are.

The discourse on human rights

Right: As can be seen from the long list of definitions provided in dictionaries the word ‘right’ is understood differently depending on the context in which it is used. Its adjectival usage means accurate or correct (as in the ‘right answer’), exact or perfect (as in it ‘fits right’), reasonable or sound (‘right mind’), immediate (‘right now’), fair (‘right share’). It is also used to describe directions (the opposite of left) including political or ideological stands (as in ‘right wing’).[3] Its noun form (‘a right’) denotes title, privilege, guarantees, power officially recognized.[4]  The New International Webster’s Comprehensive Dictionary of the English Language adds one other definition of a right which is described as that which is given “in accordance with or conformable to moral law or to some standard of rightness; equitable; just; righteous… ”[5]

Indeed, most leaders want to convince us that the rights which are recognized in our national laws have a just character or are also correct, morally speaking. This, however, may not always be the case, since a right that is sanctioned by law or culture can be wrong morally speaking, depending on the frame of reference one uses. The right to buy and sell human beings, which was legally recognized in some countries in the past, or that which tolerates the freedoms of men to ‘buy sex’ from desperate women is morally wrong. The justness of the traditional rights of parents to arrange for the marriages of minors or that of a man to inherit the wife of his deceased brother in accordance with cultural norms or traditions in some countries, are equally questionable. It is interesting to note that these rights continue to be exercised although there are also laws which require full consent for marriage in these states. In other words, one observes a certain tension between rights that are derived from culture and traditions and those emanating from laws.

Human: One of the reasons why scholars disagree on the kinds of rights and freedoms that should be acknowledged is the divergence of views on the nature of the human being and hence on what is due to him/her as just. Inseparable from this is the requirements of responding to order and stability when living in social settings. For Thomas Hobbes (1588-1679) human beings were, by nature, evil-minded, ego-centric, jealous and power-driven individuals. Although he starts by accepting the existence of ‘natural rights’ he concluded by calling for their surrender – in favor of a chosen despot for the sake of peace and the general welfare. If this is not done, the cycle of envy, hatred and competition would only further war of all against all.[6]

Hobbes’s premise was rejected by Immanuel Kant (1724-1804) because it reduced the state of nature to “a state of absolute injustice, as if there could have been no other relation originally among men but what was merely determined by force…””[7] For Kant to relinquish the natural inborn rights amounts to relinquishing being human. The purpose of civil union should therefore be to protect those “inborn” rights based on social contract by ensuring “the right of every citizen to have to obey no other law than that to which he has given his consent or approval.” ”[8] His thoughts were inspired by the positive impression that John Locke (1632-1704) had concerning human nature, and his call for the protection of natural rights. As Locke saw it, the aggressive behavior which Hobbes noted were only consequences of defying the demands of nature to respect life, liberty, possession and other interests which create self-defense, retribution and hence disorder. .[9]

Theologians consider humans as social creations that should live in peace and harmony, and that have duties towards one another (inside their communities). Since religion also prescribes what the acceptable rights and duties are, theologians see the talk about human rights as basically a religious talk.[10] For Christians, this means following those Divine commands stipulated in the Bible. For Moslems, it is that which is provided by the Islamic Shari’ah and the “divine commands, which are contained in the Revealed Books of Allah.”[11]

Atheists and most liberals or libertarians do not subscribe to this point of view for different reasons. For atheists religion is fictitious, and man’s creation. Liberals and libertarians are interested in empowering individuals by maximizing the enjoyment of individual freedoms, rather than restricting them. According to Ayn Rand (1905-1982), rights emanate from ‘man’s nature’ (‘the law of identity’). She considered them to be “the property of an individual”, and “a man’s freedom of action”[12], which are used to secure the “human good”, including the protection of selfishness without requiring sacrifices for anyone. [13] This is why she insisted that right should always be articulated as individual freedom of action and thus as something individualized.[14]

Socialists approach mankind as social. Egocentric and inhumane characteristics are inherited from the conditions of life, rather than being natural attributes. As Karl Marx (1818-1883) saw it, Hobbes had confused class war with ‘war of all against all’ and wrongly linked the conflicts which he observed with the state of nature. Although Marx was in full agreement with Rousseau’s observation that mankind was born free but lived in chains, he rejected Rousseau’s prescription calling for defending ‘the rights of man’ because these rights were framed in the context of the appropriation of private property inside the political state. For him, as long as social relations are based on private property relationships, we can only behave as representatives of property. These rights, as articulated by Rousseau and the other supporters of the capitalist order, should be rejected because they do not “go beyond the egoistic, man as he is, as a member of civil society; that is, an individual separated from the community, withdrawn into himself, wholly preoccupied with his private interests and acting in accordance with his private caprice.”[15]

Human rights: sources/foundation/origins. The sources, foundations or origins of human rights are generally approached from the perspectives of the two opposed schools of thoughts: Natural Law and positivism. Proponents of the former are sub-divided between those who follow the spiritual line (Divine Law) and the secular path (higher reason or morality). The former is defended by theologians who rely on religion as the primary source for valid rights, freedoms and duties. For them conducts and social relationships that defy the tenets of religion constitute sins that are punishable. There is no room for fetish-driven ways of living, and deviations determined by individual morality. Even if the law permits this by protecting the right to privacy, it should not be followed for such laws are not proper “but a corruption of law.”[16]

Natural Law is also defended on secular grounds by those who invoke “higher reason” or “rational nature” – from which concepts such as justice, equity, modesty and the likes are derived from.[17] Thomas Hobbes used this when he defended the existence of natural liberties and freedoms in the state of nature, and which he wanted us to surrender in favor of despotism for the sake of peace and order.[18]  John Locke too believed that we had inherent rights, such as those protecting life, liberty and property, those that should not be taken away.[19]  Kant distinguished between natural or innate rights and positive or acquired rights. He called the former innate rights, derived from “practical laws of reason” and that constitute “the Birthright of Freedoms” of every person..[20] He approached natural rights from “a pure practical conception of the reason in relation to the exercise of the will under laws of freedom”[21], as those that should neither be restricted nor denied by man-made constitutions since they are “deduced from principles a priori as the condition of such a constitution.” [22]

Liberals and libertarians vigorously defend individual liberties because the ontological core of their school of thought is individualism. “It is from this premise that the familiar commitments to freedoms, tolerance and individual rights are derived.” [23] Their point of departure may vary but the end point is similar in that both see individual rights as inalienable. “If we are serious about the idea of human rights,” maintained Jack Donnelly, “there is no alternative to holding firm on the principle that they are the rights of individuals and of individuals only.”[24] Rand, a libertarian, offered the following explanation: “If man is to live on earth, it is right for him to use his mind, it is right to act on his own free judgment, it is right to work for his value and to keep the product of his work. If life on earth is his purpose, he has a right to live as a rational being; nature forbids him the irrational.”[25]

Rand was unapologetic in defending individual morality, in praising unregulated capitalism and in dismissing group rights or economic, social and cultural rights not least because they are ‘solidarity’ rights that are financed by unjustly sacrificing individual rights (through heavy tax) to benefit others. According to her:

“There is no such thing as ‘a right to a job’ – there is only the right of free trade… no ’right to a home’ …There are no ‘rights to ‘fair’ wage …There are no ‘rights’ of special groups’ … There are only the Rights of Man…Property rights and the right of free trade are man’s only ‘economic rights’ (they are, in fact, political rights…)”[26]

In essence, the position which regards the individual as autonomous unit and which questions his/her social nature consider human beings very much like finished industrial product like a car or a piano that is ready to operate, as if we are not continuously enriched or developed mentally and emotionally from birth to death. If we are not social how do we end up possessing linguistic, religious and cultural identities? How can loyalty, nepotism, fanaticism, social prejudice, racism and extreme nationalism be explained? Why bother to take part in cultural festivities, or pay a high price for expensive cars, cloth, perfume or watches or get satisfaction from providing altruistic or humanitarian assistance? Why use prison for punishment (including for offending ‘public morality’)? Why bother about problems emanating from social isolation? The fact remains that a person who is totally isolated for too long from others can end up being mentally derailed – if not suicidal.

Communitarians reject the liberal and libertarian viewpoints of the autonomous nature of the individual. Instead, they proceed from the premise that all individuals derive their identity and wellbeing from their social environment.[27] “The highest conceivable form of human society”, according to Huxley, “is that in which the desire to do what is best for the whole, dominates and limits the action of every member of the society.”[28] Those who reject the social nature of mankind are not only dishonest since they know how social they are, but are actually hiding behind individualism for purposes of obstructing the efforts that are made to protect and promote the rights of those marginalized groups.[29]

Positivists dismiss inalienable natural rights as nonsense. According to Jeremy Bentham, the father of positivism, the proponents of Natural Law are very good at fabricating fictitious rights and ‘laws’ using passions.[30] Real rights exist only in the political world and are recognized and enforced by laws. “There are no rights without law”, he wrote, and “no rights contrary to the law.”[31] For Bentham, governments were established because there are no rights “anterior or superior to those created by the law”[32] Legal rights which are enacted by governments determine legitimate freedom of action and the enjoyment of the benefits to be given to the right-holders.[33]  To be practical, ‘right’ would have to be complemented by obligations, and when the latter are violated they become offenses.[34]  In short, “law, offence, right, obligation, service, are therefore ideas which are born together, which exist together, and which are inseparably connected. …”[35]

Karl Marx appreciated the manner in which Natural Law was ridiculed by Bentham. He also discredited Bentham for accepting the legitimacy rights made by governments. This was why he dismissed his intellectual contributions as nothing more than a “pedantic, leather-tongued oracle of the ordinary bourgeois intelligence”[36] As Marx saw it, the political state enacts laws recognizing rights and freedoms to protect the interests of the oppressing class by subordinating the oppressed groups. The kinds of rights which Marx and his followers endorsed were those that helped the proletarian class in achieving their revolutionary goals. They also supported national self-determination as a means of bringing about emancipation from their oppressive, alien rulers. Marx did see the advantages in the few ‘illusive’ ‘rights of man’ proclaimed by the American and French revolutionaries, except those that can be used to speed up the proletariat’s revolution.[37] The writings and campaigns of Karl Marx and his followers did serve as powerful engines for stimulating the revolutionary changes seen in Europe, during the second half of the 19th century, including the emergence of national states.

The divergent approaches to the definition. With so many differences in the perception of the sources, justifications, objectives and nature of human rights, the definition of ‘human rights’ can only be confusing, to say the least. Much depends on which side one takes when speaking about this contentious subject. Thomas Perry understood this subject in the religious sense, calling it a religious talk.[38] Jack Donnelly saw it as a set of socially constructed “moral claims” relating to entitlement “held by all human beings simply because they are human and exercisable against the state and society” and that is used to shape “social and political relations.”[39] According to R.J. Vincent, these rights represent “the moral possessions to which all human beings are entitled, and each of them equally.”[40] For Alan Gewirth they constitute “a species of moral rights” or requirements that are derived from valid moral principles.[41] And in the opinion of Justice Stayton this “means nothing more nor less than a claim recognized or secured by law.”[42]

One of the reasons why writers link claims to rights is their desire to give the kinds of practical support that strengthens rights. “Having rights, of course, makes claiming possible; but it is claiming that gives rights their special moral significance …”, states Feinberg. “Having rights enables us to ‘stand up like men’, to look others in the eye, and to feel in some fundamental way the equal of anyone.”[43] Claim is here given a normative character, as if right cannot stand without it. Feinberg also admits “(I)t will not help to attempt a formal definition of rights in terms of claims, for the idea of a right is already included in that of a claim, and we would fall into a circle.”[44]

The academic rivalry. Because human rights are explained in political, philosophical, religious, moral, legal and other senses, the disciplinary rivalry to claim it or to exclude others is serious. There are philosophers who take pride in the roles played by earlier philosophers in elucidating and popularizing this concept, a task which requires the input of contemporary thinkers. Jurists are happy that human rights are regulated by laws, not least because this fact makes them the only competent experts in the field. As one professor of politics, David Beetham, conceded “all these are eminently suited to analysis from a legal perspective” and “political science as a whole should have preferred to keep the subject at arm’s length.”[45]

For Michael Freeman the concept of human rights cannot be seen outside the political framework since these rights are “made and interpreted by a political process”, which is why he warns legal positivists not to be carried away by legal stipulations alone: “He maintains:

“The legal-positivist approach to human rights not only misrepresents their character but also has dangerous implications. …Legal positivists sometimes say that the only rights are those that are legally enforceable … it is not necessary that they should be so, and the concept of human rights implies that often they are not.”[46]

There are social scientists, especially social workers, that have expressed regret over the attempts that are made to exclude them from this field. According to Professor Elisabeth Reichert, a professor of social work, “Not only are politicians muddying the waters regarding human rights, but lawyers, too, speak of human rights in legalese that is more applicable to the courtroom or an academic treatise than to everyday life”[47], stated one professor of social work, Professor Elisabeth Reichert. In her view, “social workers have at least as much claim to the exercise of human rights principles as do politicians and lawyers.” [48]

Universalism and relativism: The debate relating to this topic may be intellectually stimulating but it is also politically divisive and toxic. This is not simply because it is approached with emotionally charged arguments, claims and acrimonious language, but also because the ideological and political interests behind the debate are obvious. The roots of most of these controversies go back to the familiar core issues concerning who the human being by nature is, what the sources, foundations and origins of human rights are, and the weight that should be given to cultural values. We shall lift forth three core issues around which most of the past debates have been rotating. These are i., whether there are inalienable or fundamental rights that should be accepted as universal and others that are relative; ii. whether there is a room for interpreting the rights recognized in the international regime of human rights bearing in mind the requirements of local religions, cultures, traditions, and the economic and political conditions, and iii., whether the origins of human rights are to be traced only to Western ideals and traditions alone and if, assuming that that is the case, whether this Western model should serve as a universal model for rights.

Before addressing these issues, it is necessary to identify who is behind the opposing camps. The literature on this subject reveals that universalism is strongly supported by the Western countries and echoed by most Western scholars. Relativism is vehemently defended by the governments of Third World countries and scholars engaged in the subject. However, this simplistic division can be misleading there are Western scholars that share the views of moderate relativists, as there are Third World relativists who defend aspects of universalism. This in itself reveals the existence of a third front which seeks a middle-of-the-road approach to reconcile the two extreme positions. Interestingly enough, one also notices a meeting point where the extremists on both sides converge, as will be explained later.

Linked to the issue of avoiding the dangers of oversimplification is the problem of how to interpret the word ‘Western’. Is this a geographic designation? If so, who is included in and who is excluded from this understanding of the term? Can Marx be included in the Western camp, as some claim [49], even when though his writings were so hostile to Western capitalism and to individual rights? For him, his writings were ‘scientific’, derived from the use of dialectic and historical materialism which any other person from any corner of the world could have written. If the term ‘West’ designates an ideological tradition, should the countries of Eastern Europe and Russia and all of the Latin American countries be included?

This is not to suggest that there is no such a thing as ‘the West’. In our political world we do see political camps and a harmonization of policies between states described as ‘Western’, ‘Eastern’, ‘Non-Allied Nations’, etc. also when human rights approaches or issues are debated at the universal forum. We have regional organizations, such as the European Union, the African Union and the Arab League operate, and these groups also join like-minded ones outside their own organizations when they operate in defense of their common interests. However, equally important to note is that reducing the discourse on human rights to issues of political confrontation between the West and the rest could blur the complex nature of this subject. Regrettably, this is how this debate has been used and this is how we shall proceed in approaching it now.

Universal human rights is presented by most Western writers and governments as that originated from the West and which reflects Western ideals, values and traditions. As Sir Stephen Sedley understood it, “human rights are historically and ideologically the property of the liberal democracies of the West”[50] According to Forsythe, “human rights as intellectual construct … was indeed associated with the west.”[51] Jack Donnelly traced this to European writings, ideals and values, those which entered “the mainstream of political theory and practice in seventeenth-century Europe.”[52] Michael Freeman pin pointed this to“(T)he first systematic human-rights theory” as formulated by John Locke who ”assumed that God was the ’source’ in question.”[53] The proponents of this position also dismiss the notion that non-Western societies have contributed to the human rights concept as “historically inaccurate.”[54] Underscoring this same position, Forsythe wrote: “Other regions or cultures displayed moral principles and some movements in favor of some version of human dignity but they were not grounded in a right discourse”[55]

More concretely, Donnelly described the nature of these rights which have originated in Europe and which should be regarded as universally valid as those that are: “inalienable rights: one cannot stop being a human being, and thus cannot stop having these rights … (they) rest on and seek to realise a particular conception of human nature, dignity, well-being, or flourishing. Human beings are seen as equal and autonomous individuals rather than bearers of ascriptively defined social roles”[56]

The refusal of non-Western governments and writers to endorse the position above has been viciously attacked by some of the proponents of universalism. Rhoda Howard, for example, had difficulties in understanding why African elites have “to adopt a defensive posture, arguing for the uniqueness of African culture, to explain why Africa cannot implement all of the Western and United Nations’ ideals of human rights”.[57] As she saw it: “The advocacy of a theory of African communalism by African intellectuals may well be in their own self-interest. In general the defence of ‘indigenous’ customs by African intellectuals may facilitate their ‘big-man’ domination over local groups who find their cherished value threatened.”[58] Likewise, discrediting the arguments used by the Asian leaders and intellectuals who defended “the Asian value”, Michael Freeman stated: “Many individuals and groups throughout history have claimed to speak for ‘the people’, but we have theoretical and empirical grounds for being quite skeptical of such claims. Theoretically, elites may well lack the capacity to understand the culture of the people and may well lack the incentive to understand it. Empirically, we know that elites have commonly been unconcerned with, or hostile to the culture of the people.”[59] Endorsing this position Jack Donnelly calls the defense which the leaders and elites of the Third World countries as ”cynical manipulations” since they themselves often embrace the Western ways of life..[60]

Relativists dismiss the premises and conclusions made by universalists to market the Western model of human rights to the rest of the world. According to them, if Europe is the origin of human rights just because John Locke and the others Western Natural Law thinkers wrote about it, then the sources of rights are incorrectly presumed to be these writers, when what they wrote claim that rights are derived from nature or the Creator. If the latter is the case, the origin of human rights cannot be geographic, as if rights are patented products. Relativists did not question the significance of the contributions made by Western thinkers for the evolution of the human rights that are recognized in the West or for the political process that led to the emergence of the Western model of rights. What they are saying is that the six thousand or so societies outside the West too had their own thinkers and have constructed their own models of human rights reflecting their needs and interests.

The other problem with the approach taken by Universalists in this regard is their refusal to accept the validity of collective and group rights that are acknowledged by non-Western cultures just because they differ from the individualized approach to rights. If human ideals, aspirations and values are derived from morality, as most of the defendants of universalism maintain, there must surely be different ways of constructing human aspirations, rights and obligations based on the prevailing conditions and mores, other than those which work in the West. The fact remains that different societies use different types of moral codes. What is acceptable in one place is not necessarily acceptable elsewhere.

Viewed from this perspective, it is not difficult to understand why scholars from the non-Western societies feel offended by some of the remarks that are made discrediting relativism and belittling the significance of the non-Western value systems for human rights. “Before seeking to criticize practices in another culture in the name of human rights” stated one Nigerian professor, “one should ask how we might feel if people from other cultures questioned practices within our own cultural community.”[61] As these scholars see it, respect for social values and the collective interests have crucial importance and are linked to the enjoyment of economic, social and cultural rights. Without the latter, human dignity and worthiness cannot be guaranteed. This is also why most Third World scholars regret to read many Western writings without understanding the very context the peoples in the Third World live. Professor Hountondji from the University of Benin, wondered:

“Who has decided from now on, human history must reproduce everywhere the choices or, at best, the alternatives of European history, that these alternatives were the only ones imaginable and practicable…?”[62]

As this scholar saw it, individual morality as appreciated in many Western societies is at odd with the collective morality valued in African societies. The distinction between these two value systems should not be belittled, since in the African societies:

“[T]he individual is nothing in himself and has value only when linked to his people. Above the rights of man is therefore the right of peoples. No conflict between these two orders can be tolerated: the individual has rights only in so far as he fulfils his obligations towards his people, and wherever there might be a conflict, the rights of the individual must naturally be sacrificed. What is more, it is not Europe’s role to dictate to us what we ought to do. It is in our traditional cultures themselves, in the standards and values they have bequeathed to us.”[63]

According to Professor Ife, the calls of some of the universalists urging the absorption of the Western model human rights by the Third World, represents a dangerous, dubious and ‘one-directional’ positivist worldview, one that “raises the danger of colonialism”[64] Ife, like other moderate relativists, supports universalism as long as its tenets take into consideration the particular regional characteristics and priorities. Bearing this in mind, he calls for a dialogue where one is prepared to listen to and learn from the other side, instead of assuming that one knows all the answers to controversial questions. By such an approach one could be better equipped to appreciate “what it means to be human and what it is that we value in our own humanity and that of others.”[65]

As stated earlier, there are many Western Universalists that are sympathetic to the concerns of relativists. R.J. Vincent, an ardent defender of universalism, for instance, concedes that the moral and political dilemma which universalism poses are obvious. “After all, “the argument provided by cultural relativism against imperialism appeals not merely because it is an argument against imperialism, but because it seems true. There is a pluralistic of cultures in the world, and these cultures produce their own values. There are no universal values.” [66]

Professor Antonio Cassese also believes that universalism sounds like a ‘myth’ that conceals “underlying disputes and differences” since it is obvious that Socialists, Islamists, Buddhists, Hindus, etc., just like the West, have all differing perceptions of what legitimate rights are.[67] Langlois went a step further in arguing that “as long as human rights is centred around a particular non-universal tradition – Western liberalism (in all its variety) – it cannot be universal: it fails on its own terms.”[68] According to Susan Mendus, “of course, an understanding of human rights as merely manifestations of a particular tradition is entirely at odds with the universalism implicit in the language of rights”.[69] Professor David Kennedy of Harvard University also states that: “The human rights tradition might itself be undermined by its origin … perhaps we should downplay the universal claims, or look for parallel developments in other cultural traditions, etc.”[70]

Likewise, as far as Professor Reichert is concerned: “Applying human rights universally, without deference to specific cultural principles, diminishes a nation’s cultural identity – a human rights violation in itself…. Culture, by necessity, often shapes the way individuals and groups view human rights, and this complicates the idea of human rights as universal.”[71]

The convergence: Both the above extreme positions link the origins of human rights to the West. This is why extreme relativists reject it as ‘alien’ and disruptive of their societies. They rely on their own religious and cultural values to oppose the equal rights of women and men and the different social groups (e.g., when opposing the termination of the cast system). Like extremist universalists, they also question the validity of economic and social rights since their realization could end up disrupting the existing social order. If women are educated and trained for work, then they may not end up spending the rest of their lives as housewives subordinated to their husbands. If the victims of the cast system get education and the freedom to choose the work they prefer, then they could end up taking up work other than the type that they have been compelled to engage in traditionally.

Extreme relativists and universalists have also one other thing in common, i.e., to perpetuate problems which the human rights law seeks to resolve by responding to needs, aspirations, justice and order. Extreme relativists do this by clinging to past traditions, beliefs and by linking politics with religion and culture by refusing change which liberates the oppressed. Extreme universalists agitate for individualism by underlining the importance of defending almost unrestricted freedoms of expression and privacy, often to the extent of fomenting anti-social conducts and undermining dignity and social and religious values and identities. They are insensitive to the collective interests of the marginalized groups and social conflicts because groups do not exist for them. What matters is the interests and morality of the individual, which should override collective morality. When social order is poisoned or disrupted through excessive individualism, extreme universalists have no solutions for the consequences. Their campaign for individualism appeals to the new generation in the South or East, who long to escape from the tentacles of the collective life (requiring the discharge of duties). However, once these youth are dislocated in their country or if they end up migrating to the ‘promised land’ (the West), and become  vulnerable, extreme universalists have no human rights based solutions for their miserable state, since they do not recognize the legitimacy of economic and social rights. Individualism is preached aggressively mostly for disruption.

The regime of human rights and the discourse: critical assessment

The definition of human rights. While UN instruments generally avoid providing clear definitions for politically divisive terms, it is not difficult to see how the UN understands the concept of human rights. From some UN publications and the manner in which the provisions of some of the international instruments are construed one can see the general definitions that have been accepted. For instance, the opining paragraph of the 1993 Vienna Declaration and Programme of Action refers to human rights and fundamental freedoms as “the birthright of all human beings.” In one 1987 UN publication we see this concept defined as “those rights which are inherent in our nature and without which we cannot live as human beings … (which) allows us to fully develop and use our human qualities, our intelligence, our talents and our conscience and to satisfy our spiritual and other needs.”[72] More recently, the Office of the UN High Commissioner for Human Rights, provided the following broad definition:

“Human rights are rights inherent to all human beings, whatever our nationality, place of residence, sex, national or ethnic origin, colour, religion, language, or any other status. … Universal human rights are often expressed and guaranteed by law, in the forms of treaties, customary international law.., general principles and other sources of international law. International human rights law lays down obligations of Governments to act in certain ways or to refrain from certain acts, in order to promote and protect human rights and fundamental freedoms of individuals or groups.” [73]

As will be explained later the reference that is made to “inherent”, “birthrights”, ‘general  principles’ above does not please positivists since they accept rights that are recognized by governments only. Equally important and noteworthy is perhaps not so much what was said, but also what was not said. Does the fact that religion or culture was not mentioned imply that the UN has taken an a position dismissing the view which regards human rights as a religious or cultural talk? What about the fact that human rights are not said to be moral or legal or political ‘claims’ as some writers have argued?

The reasons why the UN did not regard claims and rights as the same are apparent. On the one hand, seeing rights in this manner gives the impression that legal rights are empty words awaiting to be activated through claims, as if claims have a normative character. On the other hand, it also gives the impression that rights are recognized but not framed as claimable before courts (e.g., economic, social and cultural rights) are not legitimate (not real rights but mere aspirations).

Claims obviously strengthen the practicality of rights. However, rights do not necessarily depend on claims. If rights are claims, what happens if they are not claimed? Infants, mentally challenged persons or the terminally ill in the hospitals cannot claim their rights personally. People sometimes fail to claim their rights because of shortage of money or time, because there are no courts in the vicinity, or because they were simply unaware of their rights or of the fact that they had been violated. Black Americans were prevented from exercising their civil rights for nearly two centuries. To argue that they did not have rights during those years because they did not claim them is to approve of the violations of their constitutionally recognized rights on technical grounds.

If claims bring rights, one can very well ask what the point would be in having rights at all. This, in fact, is how some relativists defend rights based on moral, religious or customary requirements.  The fact remains that people approach courts to ask for remedies for the violations of their rights. In states that use the civil law system, courts are not mandated to make or distribute rights based on claims. They are there to interpret and apply existing laws. The body that enacts rights is the legislative branch (the parliament, and in some countries the Executive branch as well). When claims are made before courts, what is at issue is redress or remedies for the rights that are violated or disregarded. The victims are generally are free to exercise their rights their claim for remedies, unless the case involves crimes, which the prosecutor may pursue in the interest of the public. The fact that the victims have chosen not to press claims does not belittle their rights. These rights and the option to claim should not be equated as one and the same.

The view which ties rights to claims actually describes the legal situations in some of the common law countries, such as the United States, whose courts (at least at the level of the Supreme Court) are given wider powers to expand the regime of rights by interpreting the constitutional guarantees. The fact that economic, social and cultural rights are not claimed before courts in many Western countries, like the U.S., is frequently used as an important reason for questioning the validity of these rights.

The international regime of human rights recognizes civil and political rights as well as economic, social and cultural rights as universally valid. Unlike the former, that can be delivered immediately, the latter, as stated in article 2(1) of the covenant on economic, social and cultural rights, are realized progressively by using the “available resources”. Assuring education, health, adequate standard of living and the other benefits to all overnight is unrealistic. To weaken the arguments used by the skeptics of economic and social rights on the basis of the view that such rights cannot be claimed before courts, the UN introduced a protocol to the covenant on economic, social and cultural rights, allowing individuals and states to send petitions to the Committee on Economic, Social and Cultural Rights. The latter, which monitors how the recognized rights are promoted or disregarded, could consider if the formalities set for this process had been complied with. The covenant on civil and political rights also has a similar protocol. In addition, it requires that states which are parties to that instrument provide effective remedies to the violations of rights (article 2.3.b).

The justification used by the UN for promoting human rights universally is the conviction in ‘the dignity and worth of the human person’ which is stated in the preamble of its Charter. This is a clear philosophical statement by a political organization. This is because all the schools of thinking which question the equal dignity and rights of human beings based on race, gender or other consideration are rejected. Aristotle, for example, believed that some people were born free by nature and others as slaves. Rousseau dismissed this idea and claimed that all were born free by nature. Apparently, the UN has taken sides here by rejecting the former and accepting the latter. But this is not the creation of the UN. As the records of the drafting committee states: “That faith has never faded away. … But that faith needed reaffirmation in our Charter, especially after it has been trampled upon in Europe by Nazism and Fascism”[74] The word ‘worth’ was introduced to replace the original suggestion to use ‘value’ because the latter has economic connotations. [75]

The Universal Declaration of Human Rights elaborated this further by recognizing that: “the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace”. This formulation can be interpreted in at least two different ways. On the one side, it can mean that dignity is the basis or source for freedoms, justice and peace. It can also be understood to mean that if rights are denied (whatever their sources is) dignity, peace and justice would be undermined. The relationship between rights and peace is elaborated further in the third preamble of this same declaration, in the following words: “… it is essential, if man is not to be compelled to have recourse, as a last resort, to rebellion against tyranny and oppression, that human rights should be protected by the rule of law”

What the sources of dignity and worthiness are is not stated clearly. Do they arise from rational thinking (reason) or from beliefs based on religious or cultural values or norms? During the drafting of this declaration suggestions were made by some to make an explicit theological reference by mentioning that we are created in the image of God, but this was not acceptable to others who preferred to use Nature as a source or to leave this matter open.[76] It goes without saying that beliefs that question the dignity and worth of the human being on whatever ground was not be tolerated. Evidently, this political organization has taken a clear philosophical stand against beliefs or ideologies that question the equal worth and dignity of people, on the basis of factors like race, gender, age, and disabilities.

International human rights and the foundations/sources of rights.

Is positivism endorsed? Positivists do not feel that their position has become weakened by the international regime of human rights. The fact that the UN Charter has reaffirmed faith in the dignity and worth of the human being only reflects the shared belief or faith on this matter. Moreover, it merely reaffirmed what states agreed upon and recognized before. Furthermore, this is stated only in the preamble, which is not legally binding as are the operative paragraphs of that legal instrument. The fact that this faith has been echoed in the preambles of the Universal Declaration of Human Rights and the international conventions does not change anything as these preambles are not legally binding and what is stated in them is what the state parties merely agreed upon. In other words, there is nothing to suggest that Natural Law thinking has been crowned.

What is clear is that the recognition of the principle of sovereignty in the Charter protects their right to ratify or not to ratify the human rights instruments. When they do decide to ratify these instruments, they can make reservations to the provisions of the treaty by explaining how the obligations they have assumed are to be understood or interpreted. The only exception to this rule would be instances where the reservation that is made defeats the purposes and objects of the instrument. If one looks closely at some of the reservations which some states have made, one is led to wonder what the whole point was in ratifying the instrument in the first place. There are those who opt not to ratify the instruments and defend their stance by reference to their ideological convictions. For example, the U.S. has not ratified the covenant on economic, social and cultural rights, and China has not ratified the covenant on civil and political rights.

This is by no means to say that states are free to commit serious international crimes, such as genocide, war crimes, crime against humanity, or even to resort to widespread systematic and persistent cycles of human rights abuses. The Charter-based mechanism and the international criminal court can be used to respond to such challenges if abuses do occur. Such violations are deemed to be of essential concern to the international community.

Is Natural Law endorsed? The defenders of Natural Law appreciate the inscription of human rights in the international human rights instruments not least because some of these documents make a clear reference to “the inherent dignity and  the equal and inalienable rights of all members of the human family” confirming the existence of the rights prior to governments. Added to this is the reference that is made to the relevance of ‘general principles’ which is included in the human rights definition provided by the office of the UNHCHR, which is taken from article 38 of the Statute of the international Court of Justice (as one of the sources of international law). However, the fact remains that it is the political actors who are entitled to interpret these ‘inalienable’ and ‘inherent’ rights: This, however, cannot be done through arbitrary methods but “according to due process” [77]

There are also expressions in the international instruments which could be interpreted to strengthen the viewpoint which claims that human rights respond to the requirements for survival. The recognition of the right to life, work, health, to freedom from cruel and inhuman treatment or punishments etc. support this. Furthermore, the third preambular paragraph of the Universal Declaration of Human Rights states that “it is essential, if man is not to be compelled to have recourse, as a last resort, to rebellion against tyranny and oppression, that human rights should be protected by the rule of law”. This suggests that rights are protected out of necessity – because there is no choice but to do that – to avoid rebellion.

Individualization: When the UN turned attention to the preparation of the first universal instrument recognizing the legitimate human rights and freedoms, one of the challenging questions was whether the rights that are legitimate are only those that belong to individuals, thus questioning the validity of collective rights. Should these rights be articulated only as individual rights? The first two articles of the Universal Declaration of Human Rights laid down the ground for this individualized approach to rights by proclaiming that ”All human beings are born free and equal in dignity and rights” (art. 1) and that: “Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.” (art. 2. Emphasis added)

The catalogue of rights that are recognized in this Declaration include the civil, political, economic, social and cultural rights which ‘everyone’ has and the prohibition of exposure to slavery, torture, cruel, inhuman and degrading treatment or punishment etc. This instrument also defends the principle of equal rights and non-discrimination when it comes to the enjoyment of the proclaimed rights, including equality before the law, the equal protection of the law and recognition as a person before the law.

This approach was repeated in more elaborated and legally binding languages when the covenant on civil and political rights, the covenant on economic, social and cultural rights and other conventions were prepared and adopted. For instance, the covenant on economic, social and cultural recognizes the rights of everyone to education, health, work, adequate standard of living and participation in culture. The covenant on civil and political rights acknowledges the rights of everyone to life, liberty, security, privacy, freedom of thought, expression, association, assembly, political participation, effective remedy and protection from slavery, torture, cruel, inhuman and degrading treatment or punishment.

The ‘social’ nature of mankind is not questioned by the international community for obvious reasons. On the contrary, the human rights instruments provided protection to the family, and recognized the existence of duties to the national communities. States have reserved their rights to limit most individual rights in the interest of protecting ‘public’ order, ‘public’ moral or ‘public’ safety. ‘Public’ connotes a social or collective entity. The right of peoples to self-determination, which is recognized in the UN Charter, and later used for purposes of decolonization is an obvious group right. In 1950 the UN General Assembly reaffirmed this right by considering it as human right (res. 421 D (V), on 4 December 1950) and as a pre-requisite for the full enjoyment of human rights (res. 637 (VII) 16 Dec. 1952). This right was finally included into the two international covenants (article 1) on the basis of the instruction given to the drafting Commission by UN General Assembly resolution 545 (VI).

However, this right to self-determination was not meant for smaller groups, such as minorities possessing linguistic, religious or ethnic identities. The minority rights that are recognized in article 27 of the International covenant on Civil and Political Rights, merely states that:

“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 practise their own religion, or to use their own language.”

This twisted and negatively construed provision is evidently shy when it comes to acknowledging that minorities do exist and have their group rights. Instead of affirming their rights explicitly it refers to the rights of their individual members that should not be denied. True, the provision mentions that states should not prevent individuals from expressing their characteristics which can be exercised “in community with the other members of their group”. The Human Rights Committee, which monitors how the states that have ratified this convention, give practical effect to their undertakings, also by making sure that these characteristics are protected. By so doing, this Committee endeavored to strength the weakly formulated minority rights provision used in article 27 of the covenant on civil and political rights. [78]

When the UN was criticized for abandoning minorities, by dragging its feet on the matter of protecting minorities it adopted the 1992 minority declaration. This declaration improved the defective formulation of article 27, by urging states to “protect the existence and the national or ethnic, cultural, religious and linguistic identity of minorities within their respective territories” also by encouraging the “conditions for the promotion of that identity” (art. 1(1)).  While this is important, it still fell short of empowering the subjects by enabling them to create these conditions. In other words, states are still left free to determine if minorities exist by taking “appropriate legislative and other measures” (art. 1(2)), although this should not be done arbitrarily (defying the objective reality). No reference is made to a right to use minority languages in schools, let alone to establish their own schools. There is the expectation that “states should take appropriate measures so that, wherever possible, persons belonging to minorities may have adequate opportunities to learn their mother tongue or to have instruction in their mother tongue.” (art. 4(4)) When it comes to the promotion of participatory rights, what is provided is that states should have “due regard to (their) legitimate interests” when planning and implementing the national policies and programmes (art. 5(1), and to “consider appropriate measures so that persons belonging to minorities may participate fully in the economic progress and development in their country” (art. 4(5)).

By 2007, the UN has adopted separate declaration for indigenous groups – which up until then were mostly treated as minorities and relying on article 27 of the covenant on civil and political rights for protecting their rights. This non-legally binding instrument protected the collective rights of indigenous peoples to self-determination in the form of autonomy or self-government (arts. 3 & 4) and the use and exploitation of their traditional lands, territories and resources (art. 26). They were also allowed to maintain and strengthen their economic, social, cultural and legal systems and institutions (arts. 5, 20 & 34), and to continue determining the priorities and strategies for exercising their rights to development (art. 23). The declaration also acknowledges their rights “to establish and control their educational systems and institutions” (art. 14), to use “their own media in their own languages” (art. 16), to maintain, practice and develop cultural traditions and customs (arts. 11 & 12). The kinds of protection that are extended for them by this declaration includes from forcible eviction from their traditional lands or  territories (art. 10) and from hindrances in using “their traditional medicines … medicinal plants, animals and minerals” (art. 24).

If the UN was forced to take a clear stand in this way by defending the collective interests of indigenous groups, why it is not doing the same when it comes to minorities, when the situation confronting some of them is similar to that of indigenous groups? The ILO appears to be more consistent in this regard since its 1989 convention (no 169) was extended to tribal peoples whose ways of life resemble that of the indigenous. But what about minorities who have neither ‘tribal’ nor ‘indigenous’ characteristics? Is the principle of equal rights and non-discrimination sacrificed here? This discrepancy vindicates the viewpoint which regards international human rights law as a political construct. When it comes to recognizing the self-determination of those that have internationally recognized territories (which were basically used for purposes of decolonization), the UN General Assembly had to instruct the UN Commission on Human Rights in 1950 to insert an article dealing with the right of peoples to self-determination into the covenants (which were being drafted at the time). This was also reaffirmed in the 1960 Declaration on the Granting of Independence to Colonial Countries and Peoples.

Universalism v. relativism. The UN is mandated and obliged to promote “universal respect for, and observance of, human rights and fundamental freedoms”, and the members have pledged “to take joint and separate action in co-operation with the organization.”[79] On the other side, the organization is based on the recognition of the principle of sovereignty which means that states are entitled to protect their national interests. Is it possible for these states to give up these national interests in favor of a uniform human rights policy when these political actors have different ideological, political, economic and other interests including inside other states? Can political traditions based on Natural Law, positivism, religious convictions etc. be harmonized?

The Western ideals and political traditions relating to human rights were inspired by the gains secured from the American and French revolutions. The 1789 French Declaration on the Rights of Man and the Citizens clearly reaffirmed the “natural, inalienable, and sacred rights of man.”[80] Following the occupation of the neighbors of France by Napoleon, the gains of the French revolution were introduced to the occupied countries. The Law of Nature was also invoked in the 1776 American Declaration of Independence as the justification for the independence of the United States and the exercise of the peoples’  “inalienable Rights” including “Life, Liberty and the pursuit of Happiness”, to which “God entitles them”. According to this declaration “whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it”.[81] The members of the Organization of the American States had already adopted their own Declaration on the Rights and Duties of Man, several months before the adoption of the Universal Declaration of Human Rights by giving a stamp of approval to the Western version of human rights, by defending ”the dignity of the individual” and ”the essential rights of man”.[82]

About a year after the UN adopted the Universal Declaration of Human Rights, Western European countries too adopted their own regional convention to strengthen their civil and political rights. One of the grounds for their resolve to do so was their view that they were ”like-minded” states, possessing ”a common heritage of political traditions, ideals, (on) freedom and the rule of law.  They were in a position to take the first steps for the collective enforcement of certain of the rights stated in the Universal Declaration” (the last preamble). The like-minded East European Socialist states too forged their alliance with the Soviet Union by the middle of the 1950s, by establishing, for example, the Warsaw Pact (in response to the formation of NATO). When the UN was debating the human rights agenda these Socialist bloc countries were operating in ways that were harmonious with the Marxist ways of thinking.

In short, although the UN managed to adopt the first  non-binding Universal Declaration of Human Rights in 1948 by ‘pleasing’ both sides, all these states had already positioned themselves in defense of their preferences for shaping what should be universal,  when it was time to prepare the legally binding covenants. The East was glamorizing economic and social rights, and the West had dug in to protect civil and political rights. Both were engaged in rallying the countries of the ‘Third World’ that were emerging from colonialism. Although this East-West description of the politics of human rights encapsulates the basic features of the diplomatic struggle of that time, the reader should be aware of the dangers involved in over-simplifying this complex subject-matter, not least because ideological pretentions or political propaganda are often deceptive, and what is claimed politically may not always be true in the real political world. After all, two of the Four Freedoms which President Roosevelt of the U.S. defended during World War II and which the U.S delegation supported when the Universal Declaration was drafted concerned responding to wants and needs. The U.S. was behind Europeans even when they were struggling to rebuild their destroyed infrastructure at the end of World War II. Again, even if the U.S. was raising the banners of civil and political rights very high during the debates in the UN, it is dishonest to claim that it was respecting them at home before the civil rights movements of the 1960s. The ratification of the covenant on civil and political rights itself had to wait until the USSR had collapsed.[83]

Following the demise of the socialist order in the USSR and Eastern Europe, in 1991, many observers applauded the triumph of the Western political systems and values, fully convinced that this model will now serve as the basis for the universalizing of human rights. However, what was once an East-West political confrontation now took the form of a North-South confrontation or what latter came to be debated as the discourse on ‘universalism and cultural relativism’. This was because the latter states were vigorously defending their traditions and political systems in line with their values.

The African Union (previously the Organization of African Unity) had already adopted its African [Banjul] Charter on Human and Peoples’ Rights in 1981, making it clear that group-rights, economic and social rights and African values would always matter in Africa. This Charter was adopted with a view to protecting “the virtues of their historical tradition and the values of African civilization.”[84] More specifically, it underlined the duties which the individual had “towards his family and society” [85] and “to preserve and strengthen positive African cultural values”. The features of relativism could not have been clearer.

When the Member States of the Organization of the Islamic Conference met in Cairo, in 1990, and adopted their Declaration on Human Rights in Islam they too had made it clear that the rights and freedoms which they recognized would be those that could be harmonized with Islamic Shari’a and the “divine commands, which are contained in the Revealed Books of Allah”[86] The Asiatic governments too had adopted their own Bangkok Declaration[87] defending relativism, shortly thereafter. Although this document recognized the universality, indivisibility and interdependence of economic, social, cultural, civil and political rights, it also stated: “that while human rights are universal in nature, they must be considered in the context of a dynamic and evolving process of international norm-setting, bearing in mind the significance of national and regional particularities and various historical, cultural and religious backgrounds.” [88] This document rejected the promotion of human rights through “the imposition of incompatible values” [89] and regarded intervention on the pretext of human rights as a violation of the principle of national sovereignty and non-interference in internal matters.[90]

However fragmented the political scenario presented above may appear, it did not hinder the UN from devising a formula that would reconcile the deadlocked positions. Thus, when international communities met in Vienna, in 1993, and adopted the Vienna Declaration and Programme of Action, the deadlock between the universalists and relativists was reconciled on the basis of the following formula:

“All human rights are universal, indivisible and interdependent and interrelated. The international community must treat human rights globally in a fair and equal manner, on the same footing, and with the same emphasis. 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 States, regardless of their political, economic and cultural systems, to promote and protect all human rights and fundamental freedoms. “[91]

This passage raises two interesting points. On the one hand, it appears that the UN had retracted its earlier assumption, mentioned in the 1968 Tehran Proclamation, which stated in operative paragraph 13, that “the full realization of civil and political rights without the enjoyment of economic, social and cultural rights is impossible.” Secondly, if all human rights are universal and interdependent and indispensable for protecting human dignity, then those who reject either civil and political rights or economic, social and cultural appear to be relativists. True universalists recognize both these categories of rights. The rejection of the formula embodied in the above quotation would have left states deadlocked on how to proceed.  One can also view this formula as one that has not broken any new ground, since the paradox of universalism and relativism have always been vivid in the international system. In support of this conclusion the following points could be mentioned.

Universalism was the obvious point of departure for the recognition and development of the international regime of human rights. The UN Charter has affirmed the dignity and worth of the human person and has mandated the organization to promote human rights universally and without discrimination. The manner in which the international instruments have been framed underline the assumption. As the title used for the Universal Declaration of Human Rights suggests, the rights and freedoms that are proclaimed in these instruments are intended to be universal. This was reaffirmed by the UN General Assembly in the 1968 Tehran Declaration when it celebrated the twentieth anniversary of the adoption of the Universal Declaration of Human Rights and on other similar occasions (such as the adoption of the 1993 Vienna Declaration and Programme of Action). Like the provisions of the Universal Declaration on Human Rights, the provisions of the ratified core conventions also acknowledge that ”everyone” is entitled to the rights and freedoms that are recognized therein and the obligations of the ratifying states, include to respect and promote these for “all” under their jurisdiction. Because human rights are universal, they remain of concern to the international community, as it has the mandate to promote them universally – especially when the ratified instruments are disregarded.

Relativism is also firmly anchored in the international system and the human rights instruments. The fact that the whole international system rests on state sovereignty furthers relativism, since states are free to choose the convention they want to ratify or reject. When they choose to ratify, they have the power to make reservations by explaining how their obligations are to be understood.

Respect for “the principle of equal rights and self-determination of peoples” which is recognized in article 1(2) of the UN also supports the relativist stance since it entitles all nations the right to use the individualistic or collectivistic political and cultural system. Paragraph 5 of the 1970 UN Declaration on Friendly Relations among Nations elaborates this principle to mean recognition of the rights of all peoples “to determine, without external interference, their political status and to pursue their economic, social and cultural development”. This right is also restated in article 1(1) of the two international covenants. Article 5 of the 2001 UNESCO Universal Declaration on Cultural Diversity, considers cultural rights “an integral part of human rights (art. 5) Moreover, according to art. 4 of this Declaration: “The defence of cultural diversity is an ethical imperative, inseparable from respect for human dignity. It implies a commitment to human rights and fundamental freedoms, in particular the rights of persons belonging to minorities and those of indigenous peoples.”

The interests of relativists are further served by the fact that the great majority of the recognized human rights and freedoms are framed not only in broad and general ways, but also by recognizing the rights of national authorities to restrict them on grounds, such as, national security and morality. If states are free to do this at the national level, to require some nations to change their political, social and cultural systems to fit the traditions of foreign states will be unjust and a violation of the principles of sovereignty and self-determination.

Conclusion

There is no question that what was once dismissed as ‘the human rights talk’ has now taken center stage as an integral part of the international regime of human rights. This regime is a political construct, one that is shaped by states and inter-governmental organizations. These actors recognize the political nature of human rights and use political tools to promote these rights. The road forward was long and twisted. What was started as broad and generalized standard setting based the Universal Declaration of Human Rights gradually led to the adoption of a long list of legally binding conventions. Needless to say, the fact that human rights are legally recognized now does not mean that they have ceased to be political.

The political nature of human rights is obvious from the fact that they provide the foundation for order and stability. Some of the recognized rights are used for political ends, e.g., the rights to the freedoms of expression, association and voting rights. States also rely on human rights to criticize or undermine other political entities, especially their opponents, even when their own human rights records are not any better. Until the end of the Cold War, the U.S. was perceived as the leader of the civil and political rights movement although it did not even ratify the covenant on civil and political rights prior to 1992. Communist Soviet Union, which was critical to the legitimacy of the individualized ‘rights of man’, ratified the civil and political rights covenant in 1973 to gain political currency.

Because human rights are political, the states that developed the international regime of human rights had  to be careful in navigating between the religious, cultural and ideological currents hindering consensus. The factor that was used to unify the diverse political actors behind a common platform to justify the development of the human rights law was conviction in the dignity and worth of the human being. Where this is derived from was left open. If human beings are worth, life has to be protected, including also by recognizing the rights to the freedoms of expression, association, assembly, religion, movement, and other rights. If dignity and worthiness are to be appreciated, then the rights to health, food, water, shelter, adequate standards of living, education, etc. cannot be questioned. This was why the international regime of human rights had to acknowledge all these rights, and why the international community viewed civil, political, economic, social and cultural rights as interdependent and universally valid. This is a political philosophy which takes a clear stand by dismissing the different schools of thought which rejected or belittled economic, social and cultural rights or civil and political rights or the principle of equal rights. This is not to say that the goals set in 1945 have been achieved. It is merely to acknowledge the gains made by transforming ‘the human rights talk’ to an international emergence of regime that follows its own political philosophy.  There is still the  need of sharpening the language of some of the human rights instruments, since they are infested with vague and general formulations, making them susceptible to ideologically and politically inspired interpretations. If this international regime is to strengthen its legitimacy, it should respond to the needs and interests of all the beneficiaries, also by developing more efficient mechanisms for monitoring the promised rights.

Bibliography

Aquinas, Thomas. The Summa Theologica, in Great Books of the Western World, Robert Maynard Hutchins el al, eds., Vol. 20 (Chicago: Encyclopaedia Britannica, Inc., 1952).

Arblaster, Anthony. The Rise and Decline of Western Liberalism (Now York: Basil Blackwell Inc., 1984).

Beetham, David. “Introduction: Human Rights in the Study of Politics”, Political Studies (1995), Vol. XLIII, special issue.

Bowring, John. The Works of Jeremy Bentham, (New York: Russell & Russell, Inc., 1962, 1838-1843 edition)

Cairo Declaration on Human Rights in Islam, Aug. 5, 1990, University of Minnesota Human Rights Library, in http://www1.umn.edu/humanrts/instree/cairodeclaration.html

Cassese, Antonio. “Are Human Rights Truly Universal?”, in O. Savic (ed.), The Politics of Human Rights (Verso, 1999).

Crowley, B. Lee. The Self, the Individual, and the Community: Liberalism in the Political Thought of F. A. Hayek and Sidney Beatrice Webb (London: Clarendon Press, 1987).

Donnelly, Jack. “Human Rights, Individual Rights and Collective Rights”, in Jan Berting, and el al., eds Human Rights in a Pluralist World: Individuals and Collectivities (London: Meckler, 1990).

Donnelly, Jack, Universal Human Rights in Theory and Practice (Ithaca: Cornell University Press, 1989).

Donnelly, Jack, The social construction of international human rights, in Tim Dunne and Nicholas J. Wheeler, eds. Human Rights in Global Politics (Cambridge: University Press, 1999).

Eide, Asbjorne, Gudmundur Alfredsson, Goran Melander, Lars Adam Rehof and Allen Rosas eds. The Universal Declaration of Human Rights: A Commentary. Oslo: Scandinavian University Press, 1992.

Feinberg, Joel. Rights, Justice, and the Bounds of Liberty: Essays in Social Philosophy (Princeton: Princeton University Press, 1980).

Final Declaration of the Regional Meeting for Asia of the World Conference on Human Rights, in http://www://google.com.

Forsythe, P. David. Human Rights in International Relations (Cambridge, Cambridge University Press, 2nd ed. 2012).

Freeman, Michael. Human Rights: An Interdisciplinary Approach, 2nd ed (Cambridge: Polity, 2012).

Freeman, Michael. “Universal Rights and Particular Cultures”, Michael Jacobsen and Ole Bruun, eds., Human Rights and Asian Values: Contesting National Identities and Cultural Representations in Asia (Richmond: Curzon Press, 2000).

Gewirth, Alan. Human Rights: Essays on Justification and Applications (Chicago: The University of Chicago Press, 1982)

Grotius, Hugo. The Law of War and Peace: De Jure Belli ac Pacis Libri Tres, trans. Francis W. Kelsey (New York: The Liberal Arts Press, 1925).

Hart, H. L. A. Essays on Bentham: Studies in Jurisprudence and Political Theory, (Oxford: Clarendon Press, 1982).

Hobbes, Thomas. Leviathan, in Great Books of the Western World, Robert Maynard Hutchins el al, eds., Vol. 23 (Chicago: Encyclopaedia Britannica, Inc., 1952 {1990 prt).

Hountondji, J. Paulin. “The master’s voice – remarks on the problem of human rights in Africa”, in Philosophical foundations of human rights, (Paris: UNESCO, 1986).

Howard, Rhoda. “Is there an African concept of human rights?”, in R. J. Vincent, ed., Foreign Policy and Human Rights: Issues and responses (Cambridge: Cambridge University Press, 1986).

Huxley, T. H. Science and Christian Tradition, Prologue, in Mortimer J. Adler & Charles Van Doren, eds., Great Treasury of Western Thought: A Compendium of Important Statements on Man and His Institutions by the Great Thinkers in Western History (London: R. R. Bowker Co., 1977).

Ife, Jim. ”Cultural Relativism and Community Activism”, in Reichert, Elisabeth ed. Challenges in Human Rights: A Social Work Perspective. (New York, University Press. 2007), Ch. 4.

Inagaki, Ryosuke “Some Aspects of Human Rights in Japan”, in Philosophical Foundations of Human Rights. (Paris: UNESCO, 1986), ch. 9.

Kant, Immanuel. The Science of Right” in, Great Books of the Western World, Vol. 42, R. M. Hutchins, ed. (U.S.A: Encyclopaedia Britannica, 1952).

Kennedy, David. “The International Human Rights Movement: Part of the Problem?, E.H.L.R., 2000, Issue no.3.

Kudryavtsev, V. N. “Human Rights and the Soviet Constitution”, Philosophical Foundations of Human Rights (Paris, UNESCO, 1986), ch.4.in Hutchin el al, eds. (Chicago: Encyclopaedia Britinnica, Inc., 1952).

Langois, J. Anthony. The Politics of Justice and Human Rights: Southeast Asia and Universalist Theory (Cambridge: Cambridge University Press, 2001),

Locke, John. “An Essay Concerning the True Original Extent and End of Civil Government”, Great Books of the Western World, Robert Maynard Hutchins el al, Vol. 35 (Chicago: Encyclopaedia Britannica, Inc., 1952.

Marx, Karl. ‘On the Jewish Question’, in K. Marx/F. Engels, The Marx-Engels Reader, 2nd ed., Robert C. Tucker ed., (New York: Princeton University, 1978).

Marx, Karl & Friedrich Engels, Correspondence: 1846-1895. A Selection with Commentary and Notes (Bristol: Western Printing services, Ltd., 1934?).

Mendus, Susan. “Human Rights in Political Theory”, Political Studies Vol XLIII (1995), Special Issue, Politics and Human Rights

Mohammed Allal Sinaceur, “Islamic tradition and human rights”, in Philosophical Foundations of Human Rights. (Paris: UNESCO, 1986), ch. 10.

Perry, J. Michael. The Idea of Human Rights: Four Inquiries. (Oxford, University Press, 1990)

Rand, Ayn. The Virtue of Selfishness: A New Concept of Egoism (New York: The New American Library, 1962{1964}).

Reichert, Elisabeth ed. Challenges in Human Rights: A Social Work Perspective (New York, University Press. 2007).

Renteln, D. Alison. International Human Rights: Universalism Versus Relativism. (London: Saga Publications, 1990).

Savić Obrad. “Introduction: The Global and Local in Human Rights: The Case of the Federal Republic of Yugoslavia”, in Savić, ed., The Politics of Human Rights (London: Verso, 1999).

Sedley, Stephen. “Human Rights: A 21st Century Agenda”,  in  Robert Blackburn and James J. Busuttil, eds.,  Human Rights for the 21st Century. London: Printer, 1997.

United Nations. Human Rights and Social Work: A Manual for Schools of Social Work and the Social Work Profession, Professional Training Series No 1. New York. United Nations, 1994.

United Nations Office of the High Commissioner for Human Rights, ”What are Human Rights?” http://www.ohchr.org/EN/Issues/Pages/WhatareHumanRights.aspx

United Nations Conference on International Organization, Selected Documents, U.S. State Department, 1946 reproduced in https://babel.hathitrust.org/cgi/pt?id=mdp.39015030752813;view=1up;seq=504

Valentini, Laura. ”In what Sense are Human Rights Political? A Preliminary Exploration”, Political Studies, 2012, Vol. 60, pp. 180 – 194.

Vincent, R. J. “Introduction” in Vincent ed., Foreign policy and human rights: Issues and responses. 2009

Vincent R.J. Human Rights and International Relations, Cambridge: University Press, 1986 (1988).

van der Vyver, D. John. “Introduction: Legal Dimension of Religious Human Rights: Constitutional Texts”, in, John D. van der Vyver and John Witte, Jr., eds. Religious Human Rights in Global Perspective: Legal Perspectives (The Hague, Martinus Nijhoff Publishers, 1996).

Wesley.Newcom Hohfeld, Fundamental Legal Conceptions As Applied in Judicial Reasoning, Walter Wheeler Cook, ed. (New Haven: Yale University Press, 1919 {1966}).

Zakaria, Fouad “Human Rights in the Arab World: the Isamic Context”, Philosophical Foundations of Human Rights. (Paris: UNESCO, 1986), ch. 11.

Notes

*Juris Doctor, Associate Professor, School of Global Studies, University of Gothenburg (Sweden). This contribution was submitted to the human rights conference arranged by the Nordic Summer University in Finland on 24 July 2016. The author is grateful to the Orfalea Center for Global and International Studies, University of California Santa Barbara for welcoming him as a visiting scholar to complete the study especially to the Director, Professor Michael Stohl, the Program Director Victor Faessal and to Professor Alison Brysk.

[1] See Declaration on the Elimination of All Forms of Racial Discrimination (res. A/RES/1904 of 20 Nov. 1963), Declaration on the Elimination of Discrimination against Women (res. A/RES/2263(XXII) of 7 Nov. 1967), the Declaration on the Elimination of All Forms of Intolerance and Discrimination Based on Religion or Belief (res. A/RES/36/55 on 25 Nov. 1981), Declaration of the Rights of the Child (res. 1386(XIV) of 20 Nov. 1959), and Declaration on the rights of disabled persons (res. 3447 (XXX) of 9 Dec. 1975).

[2] See the International Convention on the Elimination of All Forms of Racial Discrimination (res. A/RES/2106 A(XX) of 21 Dec. 1965), the International Covenant on Civil and Political Rights (CCPR) (res. A/RES/2200A(XXI) of 16 Dec. 1966), the International Covenant on Economic, Social and Cultural Rights (CESCR) (res. A/RES/2200A(XXI) of 16 Dec. 1966), the Convention on the Rights of the Child (res. A/RES/44/25 of 20 Nov. 1989), and the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (res. A/RES/45/158 of 18 Dec. 1990).

[3] Burton’s Legal Thesaurus, 3rd ed. William C. Burton, ed., (New York: McGraw-Hill, 1980 {1989}); Random House Webster’s College Dictionary, 2nd ed., (New York: Random House, 1991 (1998)).

[4] Burton’s Legal Thesaurus…; Black’s Law Dictionary, 7th ed. Bryan A. Garner, el al, eds., (St Paul: West Group, 1999).

[5] The New International Webster’s Comprehensive Dictionary of the English Language (Florida: Trident Press International Law, 1971 {1999}).

[6] Thomas Hobbes, Leviathan, in Great Books of the Western World, Robert Maynard Hutchins el al, eds., Vol. 23 (Chicago: Encyclopaedia Britannica, Inc., 1952 {1990 prt.}),   pp. 85-8 & 100 – 103 & 116.

[7] I. Kant, The Science of Right” in, Great Books of the Western World, Vol. 42, R. M. Hutchin el al, eds. (Chicago: Encyclopaedia Britinnica, Inc., 1952), p. 435 (Author’s Emphasis).

[8] Ibid., p. 436.

[9] John Locke, “An Essay Concerning the True Original Extent and End of Civil Government”, Great Books of the Western World, Robert Maynard Hutchins el al, Vol. 35, p. 27.

[10] Michael J. Perry, The Idea of Human Rights: Four Inquiries. Oxford: Oxford University Press, 1998), pp. 12-21.

[11] Cairo Declaration on Human Rights in Islam, Aug. 5, 1990, University of Minnesota Human Rights Library, in http://www1.umn.edu/humanrts/instree/cairodeclaration.html

[12] Ayn Rand, The Virtue of Selfishness: A New concept of egoism (New York: The New American Library, 1962{1964}), pp. 124-5.

[13] Ibid., p. 28.

[14] Ibid, pp. 124-5; See also Donnelly, Universal Human Rights in Theory and Practice (Ithaca: Cornell University Press, 1989), p. 214; & R.J. Vincent, Human Rights and International Relations, Cambridge: University Press, 1986 (1988), ch. 1.

[15] Marx, ‘On the Jewish Question’, in K. Marx/F. Engels, The Marx-Engels Reader, 2nd ed., Robert C. Tucker ed., (New York: Princeton University, 1978) pp. 42-43.

[16] Thomas Aquinas, The Summa Theologica, in, Great Books of the Western World, Vol 20, p. 228. See further, John D. van der Vyver, “Introduction: Legal Dimension of Religious Human Rights: Constitutional Texts”, in, John D. van der Vyver and John Witte, Jr., eds. Religious Human Rights in Global Perspective: Legal Perspectives (The Hague, Martinus Nijhoff Publishers, 1996), specially pp. xxx-xxxi.

[17] Hugo Grotius, The Law of War and Peace: De Jure Belli ac Pacis Libri Tres, trans. Francis W. Kelsey (New York: The Liberal Arts Press, 1925), pp. 38-9.

[18] Hobbes, pp. 86-7 & 101.

[18] Locke, pp. 26-30, & 46-47.

[20] Kant, p. 401.

[21] Ibid., p. 405.

[22] Ibid., p., 409.

[23] Anthony Arblaster, The Rise and Decline of Western Liberalism (Now York: Basil Blackwell Inc., 1984), p. 15.

[24] Jack Donnelly, “Human Rights, Individual Rights and Collective Rights”, in Jan Berting, and el al., eds Human Rights in a Pluralist World: Individuals and Collectivities (London: Meckler, 1990), p. 45. According to Donnelly “We do not need a human rights to cultural identity”. Ibid., p. 59.

[25] Rand, p., 126, citing her own work, in Atlas Shrugged. See also R.J. Vincent, Human Rights and International Relations (Cambridge: Cambridge University Press, 1986), pp. 7-9 & 13-14; Jack Donnelly, Universal Human Rights in Theory and Practice, 2nd ed. (Ithaca: Cornell University Press, 2003), pp. 1-2 & 13.

[26] Rand, Ibid, pp. 130-131. See further  pp. 31 and 129

[27] “If the desires, values and development of the individual are socially determined”, wondered Crowley, “then in what way are his ‘choices’ morally significant and sovereign?”. Crowley, p. 57. By rejecting collective rights, added Crowley, those who dismiss the social nature of people actually obstruct the basis for formulating the legal language for resolving the problems faced by the marginalized groups.

[28] T. H. Huxley, Science and Christian Tradition, Prologue, in Mortimer J. Adler & Charles Van Doren, eds., Great Treasury of Western Thought: A Compendium of Important Statements on Man and His Institutions by the Great Thinkers in Western History (London: R. R. Bowker Co., 1977), p. 693.

[29] Crowley, p. 57.

[30] The Works of Jeremy Bentham, (New York: Russell & Russell, Inc., 1962, reproduced from the Bowring editions of 1838-1843, by John Bowring), Vol. III, pp. 218-220. This collection will hereafter be cited as Works… ).

[31] Ibid., Vol. III, p. 221.

[32] Ibid… See further pp. 221 & 219.

[33] Works …, Vol. III, p. 159; and An Introduction to the Principles of Moral and Legislation, pp. 2-4, & 224-225.

[34]  Works, Vol. III, pp. 217-218, 220-1; & Vol. 1 p. 301.

[35] Ibid., Vol. III, p. 159.

[36] Quoted by H. L. A. Hart, in Essays on Bentham: Studies in Jurisprudence and Political Theory, (Oxford: Clarendon Press, 1982), p. 2.

[37] Letter of Marx to Engels, dated 18 Feb. 1865, in Karl Marx & Friedrich Engels, Correspondence: 1846-1895. A Selection with Commentary and Notes (Bristol: Western Printing services, Ltd., 1934?), p. 193.

[38] Perry, pp. 12-21, especially p. 20.

[39] J. Donnelly, The social construction of international human rights, in Tim Dunne and Nicholas J. Wheeler, eds. Human Rights in Global Politics (Cambridge: University Press, 1999) p. 81.

[40] R. J. Vincent, “Introduction” in Vincent ed., Foreign policy and human rights: Issues and responses (Cambridge: Cambridge University Press, 1986), p. 3. The source of human rights, according to Vincent is Natural Law, ibid., pp. 11 & 33.

[41] Alan Gewirth, Human Rights: Essays on Justification and Applications (Chicago: The University of Chicago Press, 1982), pp. 1 & 3.

[42] Statement of Mr. Justice Stayton, in Mellinger v. City of Houston (1887), 68 Tex., 37, 45; 3 S. W., 249, 253, sited by Wesley N. Hohfeld, Fundamental Legal Conceptions As Applied in Judicial Reasoning, Walter Wheeler Cook, ed. (New Haven: Yale University Press, 1919 {1966}), p. 71, note 16.

[43] Joel Feinberg, Rights, Justice, and the Bounds of Liberty: Essays in Social Philosophy (Princeton: Princeton University Press, 1980), p. 151.

[44] Ibid., p. 139.

[45] David Beetham, “Introduction: Human Rights in the Study of Politics”, Political Studies (1995), Vol. XLIII, special issue p. 3.

[46] Michael Freeman, Human Rights: An Interdisciplinary Approach, 2nd ed Cambridge: Polity, 2012, p.11.

[47] Elisabeth Reichert, “Human Rights in the Twenty-first Century: Creating a New Paradigm for Social Work”, in E. Reichert, ed. (2007). Challenges in Human Rights: A Social Work Perspective. New York, University Press p. 5.

[48] Ibid, p. 6.

[49] David P. Forsythe, Human Rights in International Relations, Cambridge, Cambridge University Press, 2012 2nd ed., p. 6.

[50] Sir Stephen Sedley, “Human Rights: A 21st Century Agenda”,  in  Robert Blackburn and James J. Busuttil, eds.,  Human Rights for the 21st Century. London: Printer, 1997, p. 1.

[51] Forsythe, p. 40.

[52] Donnelly, The social construction of international human rights, p. 82.

[53] Freeman, Human Rights…, p. 11

[54] Donnelly, Universal Human Rights p. 87.

[54] Forsythe, p. 40.

[56] Donnelly, The social construction of international human rights, p. 80.

[57] Rhoda Howard, Rhoda Howard, “Is there an African concept of human rights?”, in R. J. Vincent, ed., Foreign Policy and Human Rights: Issues and responses, p. 25.

[58] Ibid., p. 24.

[59] Michael Freeman, “Universal Rights and Particular Cultures”, Michael Jacobsen and Ole Bruun, eds., Human Rights and Asian Values: Contesting National Identities and Cultural Representations in Asia (Richmond: Curzon Press, 2000), p. 49.

[60]. Donnelly, Universal human rights p., 119.

[61] Jim Ife, “Cultural Relativism and Community Activism”, in E. Reichert, ed., Challenges in Human Rights, p. 79.

[62] Paulin J. Hountondji, “The master’s voice – remarks on the problem of human rights in Africa”, in Philosophical foundations of human rights, (Paris: UNESCO, 1986), p, 326.

[63] Ibid., p. 328.

[64] Ife, pp. 77-78. Obrad Savić also took this as an example of Western hegemonism. Obrad Savić, Introduction: The Global and Local in Human Rights: The Case of the Federal Republic of Yugoslavia”, in Savić, ed., The Politics of Human Rights, Verso, 1999, p. 7.

[65] Ibid., p. 88. See further Mohammed Allal Sinaceur, “Islamic tradition and human rights”, in Philosophical Foundations of Human Rights, p. 199; Fouad Zakaria, “Human Rights in the Arab World: the Islamic Context”, ibid., pp. 227-228; & Ryosuke Inagaki, “Some Aspects of Human Rights in Japan”, in ibid., p. 187.

[66] R. J. Vincent, Human Rights and International Relations, p. 38.

[67] Antonio Cassese, Cassese, “Are Human Rights Truly Universal?”, in Savic (ed.), The Politics of Human Rights, p. 161 & pp. 162-164.

[68] Anthony J. Langois, The Politics of Justice and Human Rights: Southeast Asia and Universalist Theory (Cambridge: Cambridge University Press, 2001); p. 7.

[69] Susan Mendus, “Human Rights in Political Theory”, Political Studies Vol XLIII (1995), Special Issue, Politics and Human Rights p. 13.

[70] David Kennedy, “The International Human Rights Movement: Part of the Problem?, (2000), E.H.L.R., Issue no.3, p. 257.

[71] Reichert, Human Rights in the Twenty-first Century, p. 9.

[72] Cited in UN Center for Human Rights, Human Rights and Social Work: A Manuel for Schools of Social Work and the Social Work Profession – Professional Training Series, no 1, 1994 (HR/P/PT/1).

[73] UNHCHR, ”What are Human Rights?” http://www.ohchr.org/EN/Issues/Pages/WhatareHumanRights.aspx

[74] Report of Rapporteur of Committee I/1 to Commission I, Doc 944, June 13, 1945, The United Nations Conference on International Organization, Selected Documents, U.S. State Department, 1946 reproduced in https://babel.hathitrust.org/cgi/pt?id=mdp.39015030752813;view=1up;seq=504, p. 493.

[75]  Ibid., pp. 490-3.

[76]  Tore Lindholm, “Article 1” in Asbjorn Eide, Gudmundur Alfredsson, Goran Melander, ,Lars Adam Rehof and Allen Rosas eds. The Universal Declaration of Human Rights: A Commentary. Oslo: Scandinavian University Press, 1992, pp. 31-55, especially pp. 42-48.

[77] UNHCHR, ”What are Human Rights?” http://www.ohchr.org/EN/Issues/Pages/WhatareHumanRights.aspx.

[78] General Comment 23, Art. 27, para.. 6.1, in U.N. Doc. HRI/GEN/1/Rev.1 at 38 (1994).

[79] Arts. 55 and 56 respectively. Emphasis added.

[80] See the History Guide, Declaration of the Rights of Man and the Citizen, August 1789.  in http://www.historyguide.org/intellect/declaration.html

[81] See The Declaration on Independence: A Transcription, The Charters of Freedom, in http://www.archives.gov/exhibits/charters/declaration_transcript.html.

[82] https://www.cidh.oas.org/Basicos/English/Basic2.American%20Declaration.htm Emphasis added.

[83]  This is why one should not confuse human rights ideals with actual behavior. Indeed if the defense for civil and political rights was in line with the ideological orientation and national traditions of the American States as it is often claimed, one may wonder why the members of the Organization of the American states had to wait until late in 1978 to ratify the American Convention on Human Rights. The West European countries did manifest their loyalty for the defense of civil and political rights by adopting the 1950 European Convention on Human Rights. However, a decade later they also adopted the Social Charter recognizing economic and social rights, in haphazard ways. Most of the states that ratified this instrument were also parties to the ILO conventions protecting economic rights. These Western states also gradually ratified the covenant on economic, social and cultural rights blurring the East-West divide relating to the kinds of rights that should have been recognized. The fact that the defectively formulated Social Charter was revised several times and that the European Union too adopted its own Charter on Fundamental Rights also shows further that economic and social rights are not as alien to the West as it is often claimed.

[84] See preambular paragraphs 7 and 4 respectively, in OAU Doc. CAB/LEG/67/3 rev. 5, 21 I.L.M. 58 (1982).

[85] Arts. 27(I) & 29(1).

[86] Cairo Declaration on Human Rights in Islam, Aug. 5, 1990, University of Minnesota Human Rights Library, in http://www1.umn.edu/humanrts/instree/cairodeclaration.html

[87] Final Declaration of the Regional Meeting for Asia of the World Conference on Human Rights, in http://www://google.com. This instrument was adopted by the representatives of Asian States, at the end of their meeting (from 29 March to 2 April 1993), in Bangkok, in the context of preparations for the World Conference on Human rights.

[88] Ibid., 8th operative para.

[89] Ibid, preambular para. 10, & operative para. 3.

[90] Ibid, preambular para. 8, & operative para. 5.

[91] Part I, operative paragraph 5 of the Programme of Action. Operative paragraph 10 also states that “While development facilitates the enjoyment of all human rights, the lack of development may not be invoked to justify the abridgement of internationally recognized human rights.”

 

Gregor Thüsing & Gerrit Forst (eds.), Whistleblowing: A comparative study (Dordrecht: Springer, 2016)

Whistleblowing is a hot topic in contemporary society. We can just mention Wiki-leaks, undertaken by Julien Assange and his team. Or the infamous scandal of Edward Snowden, who made classified information about the US government surveillance of private citizens public and, as a consequence, had to flee his country and go to Russia. Or we can mention Bradley (Now Chelsea) Manning, who also made public classified government information and was put into prison in the US with a severe sentence by the courts. Nevertheless, even before these whistleblowing cases of making public classified information about governments, the topic of whistleblowing created much controversy and fascination. We can mention here the many cases of whistleblowing in relation to business firms and private organizations. Often such cases refer to situations where individuals feel moral responsibility to “blow the whistle” in the public about wrongdoing and fraud in their organizations. Indeed, from this perspective, whistleblowing emerges “as a potential weapon against corruption, mismanagement and general non-compliance with legal obligations by a broader public” (v). In the US, famous cases where whistleblowing was important include the Enron and World Com Scandals, with the ensuing breakdown of Arthur Andersen Accounting firm, which lead to the Sarbanes-Oxley legislation.

Starting from this definition, the book edited by Gregor Thüsing and Gerrit Forst with the title Whistleblowing: A comparative study, offers a compilation of articles about the law, legislation and legal dimensions of whistleblowing in different countries around the world. The book begins by a general presentation of its topic by the editors, who co-authored “Whistle-blowing around the world. A Comparative Analysis of Whistle-blowing in 23 Countries”. In their essay and in the anthology at large, legislations and legal practices of whistleblowing in different countries are compared, and it is shown how whistleblowing is not always seen as something positive and therefore constitutes a problem for the law. In European history, especially in the totalitarian regimes of the 20th century, whistleblowing was not accepted, but rather considered as problematic for the regimes. As a result, possibly because of inertia or inherent self-interest, there has been often little protection of whistleblowers even in the following European legislations. The book is based upon a symposium held in Vienna by the International Academy of Comparative Law at the XIX International congress of Comparative Law. The aim of the book is to give researchers, judges and legislators an overview of the different approaches to legislation on whistleblowing around the world. The contributions are by leading national experts from the countries that are investigated in the book. Overall, the book shows that there is no common basis for legislation on whistleblowing in the countries that have been investigated. Even though there exist some general laws protecting whistleblowers, the countries investigated have very different approaches to whistleblowing due to historical and cultural reasons. Based on overviews of the differences in the legislations about whistleblowing, the anthology emphasizes some issues, which are important in legislation and legal practice concerning whistleblowing.

Of primary importance is of course the need to define who should be protected by legislation on whistleblowing. Is it only one definite whistleblower or should it also be supporters of whistleblowers who should be protected too? Here, whistleblower legislation needs to define the content and scope of protection of whistleblowers in law and legislation. Again, we see huge differences in legislations about who qualifies as whistleblowers and how they are protected and what kind of rights they have. Indeed, there is a potential conflict between freedom of expression and whistleblowing and many whistleblowers are taking a lot of risks if they decide to reveal classified or secret information from their organizations to the public. In this context, it is also a problem how supporters of whistleblowers and witnesses of whistleblowing should be protected by the law and how the law can ensure just and fair treatment of whistleblowers, supporters and witnesses. Important issues to be addressed in this context are issues relating to internal and external reporting of whistleblowing; what happens if the whistleblower allegations are untrue? Is the motivation of the whistleblower relevant? What if this motivation is based on personal interest? What kind of information may the whistleblower report? Is there an ethical or legal obligation to blow the whistle and inform about injustice, corruption or fraud in the organization?  What kind of protection should be offered to the whistleblowers? What kind of reprisal should whistleblowers be protected against? Who has the burden of proof in dismissal cases? What is the function of whistleblowing in society and how could we support whistleblowers in society as a contribution to collective action? In addition, a further issue is whether there should be financial support and incentives for whistleblowers.

Although the comparison of legal practices, laws and legislations relating to all these issues may be difficult, it is the aim of the anthology to identify some general patterns in the different jurisdictions that have been surveyed. The report shows that countries like the UK, Japan and South Korea are leading in advanced legislation in the field. In the US, there has also been legislation actively encouraging whistleblowers since 1863. The anthology shows that there is a growing awareness of the problem of whistleblowing and the need to have whistleblower protection in Europe too, although many countries are not very far yet in establishing general rules and legislations about whistleblowing. Countries like Italy, Malta and Romania are on their way to legislation, but even countries that already have legislation on this matter, like Germany and other EU-member states, could do a lot to improve their legislation. The anthology is based on the view that there is both need and room for improvement of even the most advanced legislations on whistleblowing in the world. We need improvements in the legislations concerning protection of witnesses and supporters of whistleblowers, since this is a topic that has been neglected. A further topic for improvement is the possible support of whistleblowing by giving whistleblowers better financial incentives. This is something where the US, after many business scandals, are a leading country.

The different national reports in the anthology vary according to the cultural particularity of the legislation in each country. In Canada, the legislation on whistleblowing has been based on the “up the ladder” principle, meaning that the whistleblower is supposed to first disclosure information about wrongdoing by internal mechanisms and then later by public disclosure of wrongdoing. The presentation of whistleblower legislation in Croatia focusses on the legal framework and the specific issues concerning whistleblowers in the public sector. Cyprus is characterized by a dichotomy between public- and private-sector whistleblower protection and the legal framework lacks independent whistleblower protection. The Czech republic has no comprehensive special whistleblowing protection legislation, but laws concerning personal data and employee loyalty may apply. In France, whistleblower legislation has been inspired by the American model in Sarbanes-Oxley, which was introduced in 2002. Freedom of expression and good faith are important principles for protecting whistleblowers. There is some mistrust against whistleblowing, but there is also a growing understanding of the need to protect the rights of persons who become whistleblowers. The German regulation of whistleblowing is characterized by a lack of general regulation. Traditionally there was a lack of protection of whistleblowers because the labor courts saw it as a breach of the loyalty of the employees. Nevertheless, by shifting the focus onto human rights, the attitude is now more open. In Ireland there has been established a new legislation that provides comprehensive protection of whistleblowers. In Malta, for many years there has not been any law at all, but some protection has recently emerged. However, whistleblowing remains very risky for the individual in many other countries. In the Netherlands, there is in contrast much civil and cultural focus on whistleblowers and there is indeed support for whistleblowing by the institutionalization of a center for advice on whistleblowing. In Poland, there has been increased focus in case law on better support for whistleblowers, although the general legal framework is not very developed. Also in Portugal there is no specific legislation and there is very little regulation for the protection of whistleblowers. In Romania, we see a first step to whistleblower protection in new labor legislation that tends to regulate the status of whistleblowers. In Slovenia the protection of persons reporting corruption and other whistleblowers is sanctioned by a specific law on integrity and corruption, which includes rules of protection of the person of the whistleblower. The US is probably the country with the most conflicted history of the legislation and legal regulation of whistleblowers. On the one hand, the government needs whistleblowers to detect wrongdoing and fraud. On the other hand, when the government itself is subject to whistleblowing, e.g. famous cases such as Watergate and Snowden, whistleblowers face reprisal from political power, even though there is an increased understanding of the need to motivate whistleblowers at large, for example with financial incentives for truth-telling in fraud cases. In addition to these discussions of different countries, the book also gives a useful synopsis of whistleblowing material from 23 different jurisdictions.

This anthology is indeed a very interesting book about a hot topic today. The book is mostly a presentation of the legal situation in a comparative perspective. More material on the ethics and legal philosophy of whistleblowing could have improved the book. Nevertheless, the book is an important compilation of material about legislations on whistleblowing. After reading the book, the reader gets a good understanding of the complexity and differences of whistleblowing legislations. In fact, the protection of the whistleblower is not very great in many countries. We see how state interests and corporate protection of their internal information often prevail over the protection of the human rights and the freedom of expression of individuals. With such legislations, it can be argued that it is very dangerous to become a whistleblower and that the legal protection of whistleblowers needs to be improved. Without it, state and corporate power over citizens and employees becomes absolute. The book is a very strong contribution to the clarification of the importance of whistleblowing and it can spur more legal debate, better legislation and deeper jurisprudence and scholarship in the field.

Human Rights. The question of origins

According to Samuel Moyn, literature on the history of human rights has proliferated in the last three decades; a subject which hitherto had drawn very little attention.[1] My own book, Three Conceptions of Human Rights is one of these histories, which was later supplemented by two articles in the Journal of Constitutionalism and Human Rights.[2] The most recent of these articles is, among other, critical of Moyn’s own attempt of such a history in his book The Last Utopia. This article gives an outline of ‘my’ history of human rights and my critique of Moyn.[3]

Studying the origin of documents such as the French declaration of 1789 and UN declaration of 1948 is no simple matter. The provisions of these documents are elaborated collectively in complex ways and shaped by multiple influences, which can be difficult to disentangle. The provision concerning habeus corpus surely originates in the English Middle Ages and so forth. We have not tried to disentangle all these influences, but instead focused on the conception of rights discernable in these declarations. The conception of rights implicit in these declarations tells us something about the philosophical attitude guiding these texts independently of how they were produced. What we have then endeavoured to do is to trace the origin of these conceptions of rights in order to insert them into their philosophical and societal context.

This analysis allows us to conclude that human rights in the sense used in the 1789 declaration could not originate in the Greek and Roman antiquity. Such a conception of human rights is guided by the desire to give the individual a wider liberty implemented through individual permissions called rights and protected by the duties of others to respect these. Even though concerns for liberty was not absent from ancient Greece, such a concern was not articulated philosophically, and there is no reason to believe it sparked later concerns for liberty. We argue that such a concern was revived and articulated philosophically due to the encounter between Christianity and Greek-Roman philosophy in the first centuries of our era. The fixed rules of the Decalogue served as background obligations for the definition of permissions, which the canon lawyers of the 12th century renamed as rights. Human rights in the sense of the 1948 declaration would originate in a different tradition. While this tradition relies indirectly on Greek-Roman philosophy and in particular Aristotle, the actual elaboration of such a human rights theory is a recent phenomenon, even though antecedents can be found in Edmund Burke. Here rights are conceived as instruments for the good life and human perfection. In the 1948 declaration this idea is expressed as the development of human personality. We have rights in this sense because otherwise we cannot perfect ourselves, which is our duty. Rights and duties are thus two sides of the same coin. Since rights serve perfection, we call this a perfectionist conception of rights.

The main thrust of the above-mentioned book has in this way traced two traditions of philosophical thought proposing each their understanding of human rights. The significance of these two traditions goes beyond the question of rights and touches on the role of morality in human life. Do humans have limited social obligations towards each other in order to ensure peaceful co-existence, while it is left to their own judgement how they should live their lives, or is moral perfection an essential aim of social life thus enabling man to realize its humanity? In the first case, rights protect the desire of individuals to live their own life, and in the second case, rights protect peoples endeavour to live a moral life. We call this last kind of theories moralizing, while the first ones are permissive. In our book we have recounted how rights came to serve these very different functions, and we will here shortly summarize our findings.

Short Outline

Moral philosophy in Greek and Roman antiquity is with few exceptions perfectionist. Most theories profess a species of eudaimonism. The key question was happiness, but they generally assumed that individual happiness was inextricably related to man’s moral perfection. Being moral and acting morally was also the objective interest of every man.[4] The general assumption was that moral action had to be determined in the particular circumstances, hence the name circumstantialism for these kinds of theories, though it was possible to devise rules of thumb which should be embodied in man as virtues giving him the right disposition towards action. Different from these are theories issuing in universal and inflexible act prescriptions. All ethical theories have some aim or guiding concern, but these aims or concerns can issue in particular prescriptions for acting (act prescriptions) depending on the circumstances as the antique theories generally did or ask people to follow inflexible rules (universal act prescriptions), which was unknown in Greek and Roman moral philosophy.

Plato diverges somewhat from the general scheme common to Antiquity, making reason the key notion. He is still rather sceptical about universal and simple rules.[5] How happiness was related to virtue and reason could then be explained in different ways and from there stems the various philosophical schools which thrived at different times in the Greek and Roman world. The antique world-view assumed that the world was reasonable and intelligible for man. This view was seriously challenged after the emergence of Christianity and this brought about an important rupture which changed the basis for philosophical reflection radically.[6]

The Judeo-Christian God was a commanding god demanding obedience from the believers. The idea that certain universal act-prescriptions had to be followed was foreign to Greek-Roman philosophy, which was thoroughly circumstantialist. Still, Christian apologists had to defend their religion within the terminology of Greek-Roman philosophy. For this purpose Platonism was a particularly convenient intellectual structure. Identifying God with the One allowed Christianity entry into the Greek-Roman culture, but the commands of God could not be ignored. The distinction between law and counsel made it possible to combine both considerations. In this way we got a distinction between two different kinds of obligation. Different authors could emphasize this or that obligation, but any Christian author somehow had to find a place for the law. The authority of Scripture had to be accommodated to Greek-Roman philosophical reasoning, since Scripture itself was presented as supported by reason.

Different solutions could make the synthesis between Greek-Roman philosophy and the Judeo-Christian religion work. For Western Christendom Augustine is the central figure. Inspired by his reading of Paul, Augustine developed a notion of permission, which could highlight the notion of Christian liberty. He wrote against those who make out of anything disadvantageous a sin. We can do many things without sin, which are not necessarily the best thing to do. Here we can glimpse our cluster of concepts: a law forbidding and commanding certain things leaving other things to everyone’s own judgement. These things are permitted even though certain things are necessary to achieve perfection, but everyone is not strictly obliged to seek perfection.[7] When Augustine wrote this during 419–420 the Roman Empire had only recently become officially Christian. Many other communities still co-existed with the Christian communities. The context is, therefore, one of intra-communitarian dispute about doctrine, since Augustine is here responding to a certain Pollentius having trouble with Augustine’s limitation of divorce to the sole case of adultery.

When the canon lawyers of the 12th century made Augustine’s permission into an ius the context was, of course, very different. The Christian Church was now an independent government institution with its own laws and courts and judges to maintain it. Ius was a much-used term in Roman law, but rarely used in a subjective sense as belonging to an individual (one example is D. 35.2.1. pr.). Exactly how canon lawyers came to equate ius with permission, we do not know, but this use is well established.[8] That Augustine influenced them is well attested, since many of them refer explicitly to Paul and Augustine.[9] These lawyers equated the moral prescriptions of the Bible with natural law. Natural law was conceived as a collection of more or less general prescriptions. They add the idea of permissive natural law conceived as consisting of everything you can equitably do. There is some discussion about whether this is natural right proper, but the idea of a space of liberty, where the agent is not subjected to compelling prescriptions is well and truly there. Later authors will deduce from this that property and government belong to the permitted area, since the prescriptions of natural law say nothing about them, and the idea that they need the consent of everybody lies at hand. We do not know exactly when this deduction was made for the first time, but it is clearly present in the works of William of Ockham.

In between, however, we have seen a surge in Aristotelian thought on moral philosophy due to new translations. The influence of Aristotle is pervasive, but his ideas on moral and political philosophy is not followed by John Duns Scotus and William of Ockham (among others) opting instead for a position closer to that of Augustine. This is not the case with Thomas Aquinas who becomes the principal champion of Aristotelian moral and political philosophy. The challenge he faces is then to reconcile the general rules of the Decalogue with Aristotelian circumstantialism. Thomas’s solution is quite ingenious, but we argue that in the end he cannot give to the Decalogue its full significance. Thomas maintains certain inflexible act-prescriptions as a limit on the pursuit of the common good. His theory retains, however, the basic tenets of Aristotelian circumstantialism. Since agreement with some inflexible act-prescription is not a sufficient criterion for the goodness of the action, which has to be made for a good purpose as well,[10] the pursuit of the common good will therefore dominate. The distinction between strict and loose duties becomes senseless in Thomas’s theory. When all actions should further the common good, and for this reason there can be no genuine indifferent acts (an act which are neither morally commanded nor forbidden), this again implies that there can be no domain sheltered absolutely from public intervention, and this fits well with a conception of rights, which vary with the interest of the common good.

This Christianized Aristotelianism was to have an immense influence, but other more orthodox Augustinians like Ockham were worried about this influence. They felt that divine omnipotence was imperilled by this Aristotelian influence. If it was not possible to discard Aristotle completely, Ockham, taking the lead from Duns Scotus, gave Aristotelianism a stronger Augustinian imprint by emphasizing the divine will and the contingency of the created world. Although Ockham radicalized Scotus in many respects, he remained, on the whole, within the same overall perspective. Ockham probably developed his ideas on rights, property and government from canon law sources. In short, the distinction between strict and loose duty makes it possible to envisage individual liberty in terms of permissions within a eudaimonistic structure with beatitude as the highest end. Permissions are then conceived as rights within the limits of the act-prescriptions of natural and divine law. Other matters are left to the individuals’ own decisions, which include property and government. However, government when once settled cannot be revoked except in extreme cases.[11] The point of this theory was not to empower individual members of the society politically, but rather to bolster the claims of the temporal power against the papal claims of omnipotence. This theory gave the temporal power an independent source of legitimacy, and this was again part of Ockham’s own quarrel with the pope about evangelical poverty. Ockham’s position and arguments were taken up again by the Conciliarists, but to a different purpose. Their target was not so much the pope as the papacy. They challenged papal primacy within church government and claimed that final decisions belonged to a general council. The focus had changed, but the basic theoretical construct remained the same.

At the Reformation the cluster of concepts, consisting of individual rights as permissions, the supererogatory, property and government based on consensus and the common good as common interest, goes through a major change due to the redefinition of the term ‘sin’.[12] Since the task of government was generally seen as peaceful coexistence and repression of mortal sin, and sin became a much more comprehensive term, the task of government was accordingly greatly enhanced. There was now much larger room for state intervention, and Reformation governments could decide about morality and manners. In this way, what would count as the task of government has also changed. After having initially endorsed this view, John Locke eventually went back on this move making matters outside natural law to no business of government,[13] but now the context had changed, since different (if not all) religious communities were now living together. The duties of religion were now considered a private matter. Morality and manners, which were supervised by the Catholic Church before the Reformation, were now left to religious communities, between which people could choose. The area outside government action thus acquires a different content by this difference of context, since people now have greater liberty to choose their religious affiliation.

We argue that this Lockean view greatly influenced the drafters of the 18th century declarations of rights. In the American context Locke was important, but it is disputed how important he was. Recent scholarship tends, however, to reinstate the importance of Locke.[14] What makes Locke so important for us is the way he distanced himself from earlier Protestant political philosophy. Outside the concentric rings of natural and divine law, the Protestant prince could legislate according to his best judgement. Locke, on the contrary, limited the role of the prince to particular functions, and thus re-created a space of liberty for the individual. This solution was implemented in the American declarations (Virginia declaration and the Declaration of Independence) with Locke as the most probable inspiration. Even if this thesis is disputable, it is quite clear that these declarations are focused on freedom deploying a permissive conception of rights, and this is the most important point for our thesis. We can draw the same conclusion regarding the French declaration of the rights of man and the citizen, and as such link the 18th century declaration to the Augustinian-Ockhamistic tradition. However, while the rights language of permission and the consent theory of government formerly served to bolster the secular power against the spiritual power, the same language now serve to bolster the individual against the secular power. While the Americans used it against their colonial master, the French used it against their sovereign master, the King. Again, we have argued that Locke was particularly influential in implementing this solution.

This solution was not met with universal approbation. Both during the drafting process and after the adoption, the French declaration was severely criticized. Most of the critique is derived from a moralizing theory proposing an end, which makes inflexible act-prescriptions impossible or unfeasible. On this kind of theory it is not possible to have a fixed and stable space of liberty. Their critique concerns partly the impossibility of conferring eternal and indefeasible rights on individuals, partly the undesirability of abandoning people to their own egoism. The best-known critics are Edmund Burke,[15] Jeremy Bentham[16] and Karl Marx.[17] The theories of Burke and Marx have been described as perfectionists, since they harbour a positive ideal about human perfection, while this is not true about Bentham’s utilitarianism. Bentham and Marx reject the rights of man altogether, while Burke is not unwilling to use this term, though in a perfectionist sense.

Strong forces were working against human rights as they were understood in the 18th century. The Catholic Church remains critical, and the Church will eventually adopt their own concept of human rights inspired by Thomism and corresponding to the special sense Burke gave to human rights. Different forms of Marxism and Socialism remained hostile to human rights, considered as a species of bourgeois ideology. Some trends within socialism, for example Jean Jaures in France, adapted the human rights discourse to Socialist goals. However, human rights in the 18th century sense is still important in non-utilitarian liberal thought. Different forms of utilitarianism or more broadly non-perfectionist circumstantialism reject human rights or give them some subordinated role in their system as rules of thumb or guidelines. More historically minded or social science inspired approaches would also be sceptical about human rights. The ‘rebirth’ of human rights in the 20th century was not a ‘rebirth’ of human rights in the 18th century sense, but more like the culmination of the perfectionist version of human rights whether it was of Thomistic or Socialist inspiration. These two versions seemed to converge towards one another, and after the Second World War a short-lived perfectionist consensus produced the Universal Declaration of Human Rights of 1948 (UDHR).

The Universal Declaration of Human Rights outlines the moral foundation for the contemporary international human rights regime. We argue that some of the rights in the UDHR, i.e. the economic, social and cultural (ESC-) rights, make no sense if they are understood as permissive rights, but these rights can very well be understood as perfectionist rights. Since a perfectionist end implies a perfectionist conception of rights and such an end is present in the declaration, we conclude that these rights should be understood as perfectionist rights. Other rights in the UDHR could, however, be understood as permissive rights. Since all the rights in the declaration are not permissive rights, it is difficult to understand the end of the UDHR as the delimitation of a space of liberty, but a perfectionist end would not be incompatible with a mixture of permissive and perfectionist rights, since some kinds of liberty could seem necessary to fulfil the end. In that case the perfectionist end of the UDHR would command all the rights, and the permissive rights should be used responsibly to attain this aim.

The examination of the drafters’ views as expressed in the summery records consolidates this interpretation of the text, even though it has to be explained as an overlapping consensus between two types of perfectionism. Full blown perfectionism would consist in a very dense conception of perfection, that is, a conception which gives very detailed and comprehensive prescriptions about how to live one’s life. This kind of perfectionism would have a strong moral dimension implying that social virtues are an integrated part of perfection. Social liberal perfectionism would focus on real freedom dissatisfied as they are with the formal freedom of the liberalists. Man should be made capable of effective use of his freedom, and this implies that he should possess certain qualities such as education, free time, means, health, etc. This kind of perfectionism would tend to be less dense, and do not suppose any moral dimension. The attachment of the individual to society would be due to some kind of social contract. The first conception was attributable to the Chinese representative, P. C. Chang, and some Latin American representatives, while the other conception was attributable to representatives from North America and Europe. It was, however, not possible to situate all the drafters precisely in relation to these conceptions, but there were good reasons to think that the large majority of representatives were somewhere between the two positions.

The UDHR was soon to be criticized from a liberal point of view. The economic, social and cultural rights had no place in liberal theory. These rights were not considered as real human rights. Only civil and political rights could claim to be real human rights. In order to avoid controversy and rally as large a following around human rights as possible, the human rights militancy of the 70s focused on subjects as torture, forced disappearances, arbitrary arrests on which there was wide agreement.[18] We argue against Samuel Moyn that this movement did not deploy a whole new conception of human rights. The difference between UDHR and the 18th-century declarations of rights does not lie in the existence of a special tie to the state, as Moyn claims, but in their basic philosophical assumptions.[19] We argue that the UDHR has a much larger potential for internationalization than older declarations focused on freedom. This means that this potential was present in 1948, but it leaves the question open why it did not unfold until the 70s. Our explanation goes in two steps; firstly, as Moyn also notes, the major reason for this delay was the Cold War.[20] Internationalism seemed less realistic faced with a seemingly insurmountable ideological gap. We argue that other philosophical assumptions more akin to those of the 18th century in the guise of Reinhold Neibuhr and the Realist School in international relations came into the forefront forcing internationalism into the defensive. Institutionalism within international relations theory should be taken as an expression of a new effort to open the way to internationalism on the eve of the Cold War period. Secondly, human rights activism was minimalist and focused on a few fundamental and widely consensual rights, and it did not embrace the full program of the UDHR. Moyn explains this situation and its success by the failure of alternative utopias, and there is much to say for this explanation,[21] but why the human rights ONG’s eventually adopted the whole perfectionist program of the UDHR is not principally due to a pressure for giving answers to all questions necessary for a new ‘utopia’.[22] We suggest that working within the UN framework, intellectual coherence would anyway oblige them to do so.[23]

Our two traditions are thus still at work towards the end of the 20th century. Niebuhr and the Realists assume a conception of morality very much akin to that behind the 18th century declarations, even though they have a more ambiguous relation to the declarations themselves. For them, the determination of the actual rights is not so evident, and especially Niebuhr considers this determination as a matter of dispute, where morality and self-interest are difficult to disentangle.[24] The other strand has triumphed through the perfectionism of the UDHR, whether it is of Thomistic, Socialist, Confucian or other inspiration, and the momentum seems presently to be in its favour. The West has traditionally been very much focused on fixed rules when promoting human rights internationally, which seems wholly incongruous with the UDHR, while the so-called Global South has insisted on the indivisibility and interrelation of human rights, assuming that some kind of practical reason has to decide how they support or depend on each other or how supposed conflicts between them should be solved. This was rammed home at the Vienna conference in 1993, and this battle has largely been lost by those in the West who still cherishes the idea of fixed rules. Though fixed rules leave little flexibility for maximization or optimization of an accumulative end, and continuous adaptation to changing circumstances would be more efficient in this case, the social distribution of capabilities can, however, induce some people to adapt more than others, and rigid rules can protect persons by fixing lines of protection that cannot be overruled. This idea has often been criticized as a particular Western idea stemming from an individualist society and sometimes imputed to Christianity. It would seem that this study support this idea.

The Question of Origins

The permissive conception of rights has been traced back to developments in early Christianity. The Decalogue of the Mosaic religion as they were assimilated by Christianity made it possible to establish the conceptual apparatus consisting in interdictions, commands, permissions and counsel. One could then say that Christianity played a crucial role for the development of human rights. But the Qur’an allows of the same kind of interpretation.[25] Just like Augustine speaks about prescription, interdiction, permission and advice, Muslim scholars speak about the obligatory act (wajib, fard), the prohibited act (haram, mahdhur), the permitted act (mubah, halal, ja’iz) and the recommended act (mustahab, mandub, sunnah).[26] Islamic law also embraces the principle of legality, such that actions which are not prohibited are permitted.[27] Other observers even emphasize the existence of a notion of right in early Islamic jurisprudence.[28] So why did human rights not develop in the Muslim world? If human rights are associated, as they are here, with the particular move that bolsters the individual against the state, and not with the move bolstering secular powers against the spiritual power, then we will have to note that these rights did not develop in the Christian world for 1700 years. It is thus not probable that they were indissolubly linked to Christianity, if nobody actually thought about this for 1700 years. What actually made Locke reinvent the space of liberty and Enlightenment thinkers turn this liberty against the reigning power as a special prerogative of the individual, has probably something to do with developments in contemporary society.

Our cluster of concepts is not essentially Christian, but developed in Christianity because of contingent factors such as the combination of Roman law and church government; the dispute between secular and spiritual powers and individualistic conceptions of man. Nor do they seem to be related to any metaphysical or epistemological principle. Ockham subscribed to voluntarism while Locke adhered to intellectualism. They adopted a species of nominalism, but Duns Scotus preferred realism. A Platonic view of epistemology against an Aristotelian conception makes no difference. A teleological or mechanical conception of nature is all the same, when it comes to our cluster of concepts. What then allowed this cluster to persist in spite of changing philosophical inclinations? Important spiritual or material interests must have brought this about. With respect to the Middle Ages we will point to a strong religious interest in maintaining Christian liberty which relieves men from ceremonial prescriptions and leaves them to strive after perfection of their own free will. There was an important material interest in keeping the social order clear from church and religion. These interests in freedom and the independence of secular society were an important background for the development of human rights, but they were essentially related to neither Christian theology nor philosophy. They were related to the existence of fixed rules and the dispute between secular and spiritual power. The first you could find in Islam and other religions, while the second seems more particular to Western Europe.

The Long Perspective

We have travelled a lump of human history stretching from Plato to the aftermath of the Second World War. Our account of this period must inevitably be a very concentrated one. Why work on such a long stretch of time? The concepts and terms we are using to speak about ethical and political questions often have a long history. We do not assume this history to be a smooth and simple one. Terms get new meanings or maybe plural meanings. Concepts are carried by new terms or become part of them, or they enter into new associations with other concepts, which change their significance or functions. We do not assume that terms and concepts have followed each other from the ‘beginning’ to the ‘end’. This is a complicated story, which is wholly contingent and riddled with ruptures and displacements. We do not assume that certain concepts and terms had to appear or develop in a particular way. We only endeavour to map their presence at specific moments. We establish the framework, which will allow us to study the use of terms and concepts more specifically in their concrete environment. We consider it important to have the big picture, for example when we have to compare thinkers from different periods. It is important to know that the term ‘sin’ has changed its meaning with Luther and the consequences this has for the proper functions of the state, when we compare Luther with the Conciliarists. This gives a particular edge to subsequent Protestant political philosophy, which otherwise might have gone unnoticed, since they use the same conceptual apparatus as the Conciliarists. These kinds of ‘movements’ are easier to see in the big picture. The big picture also makes it easier to see whether terms and concepts forged in one period are still pertinent in a later period. We are sometimes so used to a particular conceptual scheme that we are not aware that changes in some other context leave them without a raison d’être. This has to some extent happened with the rule-based moral theory, which persisted without its foundation in divine command, and the raison d’être somehow had to be reinvented. These kinds of disruptions are easier to spot in the big picture.

What we do is to map their presence in texts. What meets us in the first place is the terms (words and phrases) and we will have to determine their precise meaning in these texts and the concepts they might carry with them. Since we are mainly dealing with abstract and technical terms in mainly scholarly texts, we have to determine their meaning in their theoretical context. The term ‘common good’ would, for example, mean something different in the Augustinian-Ockhamistic tradition than in the Aristotelian-Thomistic tradition. In the first tradition the common good is the haphazard common interest of contingent societies, while the second tradition conceives the common good of a particular society as an integral part of the common good of an objective and universal society. Establishing the big picture will not exempt us from a contextual determination of the meaning of the particular term. However, in order to extract the abstract sense of the terms, we neither have to establish their perlocutionary nor their illocutionary sense, and neither their ideological role nor their social function or justification. Nonetheless, this extraction of meaning from the theoretical context does involve an elaborate reconstruction of the theory in question as far as this is possible.

Conclusion

 So far we have only considered two of the three conceptions. The first two conceptions studied are what John Rawls would call comprehensive conceptions.[29] The force of the third conception should then consist in being a non-comprehensive conception: i.e. a minimal standard of decency accepted by different comprehensive conceptions. This conception is defined by the fact that it allows more than one coercive normative order, and for this reason we call this conception pluralist in regard to politics. This means that human rights are not thought to exhaust the possibility for coercive measures in the state. Other normative claims can legitimately be enforced beside those of human rights. This has some implications for how we consider the function of government and consequently for democracy as a form of government. From the point of view of perfectionism it is the object of government to deploy the practical reason which will determine the decisions or enact the rules necessary for making people more perfect. From the point of view of classical liberalism it is the object of government to enact the rules necessary to protect freedom. In both cases positive rights coincide with human rights. In the third conception this is not necessarily the case. Government should, of course, enforce human rights, but these are not exhaustive, so it is somehow left to the government to fill out the rest. In some sense we are back to Protestant political philosophy here, where the prince could fill the space left over by divine and natural law. Apparently, it seems less controversial to revive this theory today, when the prince has been replaced with democracy.

What would then be the function of human rights today according to this theory? The third conception is an umbrella conception, so it can be fleshed out in various ways according to how human rights are justified, which functions are assigned to them and how the individual rights are defined. We would suggest that their function is to establish the conditions for the exercise of autonomy and individual protection against the vagaries of collective decisions. Conceived in this way, human rights allow democratic institutions a vast field within which they act freely. They are not just left with some details to settle concerning the implementation of a political project set out in advance. It is for democracy to make a choice between different political projects, and in this way human rights stand above ordinary political divides. This also means that human rights become an external standard with respect to the constitution and ordinary legislation. Human rights become the standard according to which these should be judged.

If human rights should express an actual universality, we must bring them down to a value that is likely to rally a broad consensus. We proposed autonomy, since it relates to the formation of opinion. It ensures that everyone can make up their own opinion and decide knowingly without pressures or restrictions in terms of information. This value is essentially that of the Enlightenment. This does not mean we did not know before. Socrates is a shining example to the contrary and Dumont believes that he finds it in the ancient Indian religion of the Vedas,[30] however, the philosophers of the Enlightenment strongly advocate this idea from the 17th century onwards.

If this value seems likely to rally around it a broad consensus, it is because it is a prerequisite for any discussion, and discussion is a prerequisite for any thoughtful consensus. So to all those who agree to submit to the vagaries of discussion and participate in the game of persuasion, autonomy should be an acceptable basis. This is fortunately a very large portion of the overall world population, and those are the members of the world public opinion that we must persuade. These people consider themselves as independent and for that reason they gather information and consider the arguments for and against. They constitute the future of human rights. What really matters is that people consider themselves as independent and that they see human rights as their guarantee for being able to continue to be so. The effort to promote human rights must therefore concentrate on public opinion; protect, expand and enlighten it.

Such a conception could serve as a base for the re-interpretation of the existing UN regime. The existing regime suffers from incoherence due to the fact that the covenants were supposed to implement the UDHR, which we have argued is perfectionist, but they are doing this with a traditional legal vocabulary which is dependent on a permissive conception of rights. This has created many troubles with how to cope with ESC-rights within such a conception. These rights simply do not work as permissive rights and they cannot therefore be considered as non-derogable or non-justiciable. In a perfectionist perspective all rights are derogable according to what would fit the common good and all rights are justiciable as long as this would promote the common good. In this perspective there are no fixed rules and every virtue is enforceable if this proves expedient. In order to conserve fixed rules and thus give personal autonomy a convenient protection one should take the existing civil and political rights (ICCPR) and combine them with the core ESC-rights as outlined by the UN,[31] which seems susceptible of immediate enforcement. These rights could be conceived as human rights according to the third conception.

Bibliography

Aldeeb Abu-Sahlieh, Sami A. (2006). Introduction à la société musulmane, Fondements, sources et principes, Paris : Eyrolles.

Augustine (1982). ‘De Conjugiis Adulterinis’, in S. Aurelii Augustini Opera Omnia, Patrologia Latina 40. Reimpression of 1857 edition. Turnhout: Brepols.

Baderin, Mashood A. (2003). International Human Rights and Islamic Law, Oxford: Oxford University Press.

Bentham, Jeremy (2002). The Collected Works of Jeremy Bentham, Rights, Representation, and Reform: Nonsense upon Stilts and other Writings on the French Revolution. Oxford: Oxford University Press.

Brunschwig, Jacques (1996). »Stoïcisme ancien », in Dictionnaire d’éthique et de philosophie morale, Vol. 2 : 1856-1864.

Burke, Edmund (1968). Reflections on the Revolution in France. London: Penguin Books.

Dihle, Albrecht (1982). The Theory of Will in Classical Antiquity, Sather Classical Lectures 48, Berkeley 1982.

Dumont, Louis (1985). Essais sur l’individualisme Paris : Éditions du Seuil.

Huyler, Jerome (1995). Locke in America. The Moral Philosophy of the Founding Era. Lawrence: University Press of Kansas.

Jacobsen, Mogens Chrom (2011). Three Conceptions of Human Rights. Malmö: NSU-Press.

Jacobsen, Mogens Chrom (2014). ‘Ideology and the Universal Declaration of Human Rights’, in Journal of Constitutionalism and Human Rights, Avril 2014: 8–30.

Jacobsen, Mogens Chrom (2016). ‘The Internationalization of the Universal Declaration of Human Rights.“, in Journal of Constitutionalism and Human Rights, January 2016:

Locke, John (2008). Two Treatises of Government. Cambridge Texts in the History of political Thought. Cambridge: Cambridge University Press.

Luther, Martin (1889). “De votis monasticis Martini Lutheri iudicium” (1521), in D. Martin Luthers Werke, kritische Gesammtausgabe, Vol. 8. Weimar : Hermann Böhlau.

Marx, Karl and Engels, Friedrich (1976). ‘Zur Judenfrage’, in Werke, Vol. 1. Berlin/DDR: Karl Dietz Verlag. URL: http://www.mlwerke.de/me/

Moosa, Ebrahim (2004). ‘The Dilemma of Islamic Rights Schemes’, Worlds & Knowledges Otherwise Fall Number, first published in Journal of Law and Religion: http://www.jhfc.duke.edu/wko/dossiers/1.1/MoosaE.pdf

Moyn, Samuel (2010). The Last Utopia. Cambridge, Mass.: Harvard University Press.

Moyn, Samuel (2011). ‘The First Historian of Human Rights’, in The American Historical Review, Vol. 116, No. 1: 58–79.

Niehbuhr, Reinhold (1948). The Nature and Destiny of Man, Volume II; Human destiny. London: Nisbet & Co. Ltd.

Munir, Lily Zakiyah (2006).’Islam and Human Rights’: http://www.lfip.org/laws718/docs/lily-pdf/Islam_and_Human_Rights.pdf

Plato (1982). Republic I. Vol. 5. Loeb Classical Library 237. Cambridge Mass.: Harvard University Press.

Rawls, John (1996). Political Liberalism, New York: Columbia University Press.

Thomas Aquinas (1882). Corpus Thomisticum, Textum Leoninum Romae 1882 editum ac automato translatum a Roberto Busa SJ in taenias magneticas denuo recognovit Enrique Alarcón atque instruxit. URL : http://www.corpusthomisticum.org/

Thomas Aquinas (1947). The Summa Theologica. London & New York: Benziger Bros. URL.: http://dhspriory.org/thomas/summa/index.html

Weigand, Rudolf (1967). Die Naturrechtslehre der Legisten und Dekretisten von Irnerius bis Accursius und von Gratian bis Johannes Teutonicus, München: Max Hueber Verlag.

William of Ockham (1992). A Short Discourse on Tyrannical Government, Cambridge: Cambridge University Press.

Zuckert, Michael P. (1994). Natural Rights and the New Republicanism. Princeton: Princeton University Press.

Notes

[1] Moyn, 2011: 58.

[2] Jacobsen, 2011, 2014, 2016.

[3] Part of the text is taken – but somewhat modified – from a second edition of my book, Three Conceptions of Human Rights, which is in course of publication. For precise and extensive references, please refer to Jacobsen, 2011, 2014, 2016.

[4] Brunschwig, 1996: 1858, 1861.

[5] Plato, 1982: 425 c-e, p. 363.

[6] Dihle, 1982: 1.

[7] Augustine, 1982: PL 40, 459–462, I.14-17.15-19.

[8] Weigand, 1967: passim.

[9] DG II C. XXVIII, c. 8.

[10] Thomas Aquinas, ST. Ia IIae 18 a. 4 co.

[11] William of Ockham, 1992.

[12] Luther, 1889: 580–581.

[13] Locke, 2008.

[14] Huyler, 1995: 1–28; Zuckert, 1994: 18–25, 150–166, 305–319.

[15] Burke, 1968.

[16] Bentham, 2002.

[17] Marx and Engels, 1976.

[18] Moyn, 2010 : 130 ff.

[19] Moyn 2010: 12.

[20] Moyn, 2010: 131.

[21] Moyn, 2010: 8.

[22] Moyn, 2010 : 218 ff.

[23] Cf. http://humanrightshistory.umich.edu/files/2012/08/Petrasek.pdf (consulted 15-04-2015).

[24] Niebuhr, 1948: 264–265.

[25] Munir, 2006: 4.

[26] Aldeeb Abu-Sahlieh, 2006: 249–254.

[27] Baderin, 2003: 14–15.

[28] Moosa, 2004: 5 ff. In fact Moosa argues that the concept of right elaborated in the first period of Islam makes certain inherited notions of ethics incompatible with modern notions of human rights. Those who consider the Islamic understanding of rights compatible with modern notions have difficulties in explaining how they abandon the presumptions of traditional Islamic jurisprudence. He believes there is no way out, so that one has to accept a quantum shift.

[29] Rawls, 1996: 140, 154–155, 175.

[30] Dumont, 1985: 37–38.

[31] Cf. Core Human Rights in the Two Covenants: http://nhri.ohchr.org/EN/IHRS/TreatyBodies/Page%20Documents/Core%20Human%20Rights.pdf

From Piketty’s Capital to Marx’s das Kapital

Thomas Piketty’s book Capital in the Twenty-First Century has created a very new platform for a discussion of the global economy. There is possibly no other book on economy which has been published in so many languages, printed in so many copies, and has found its way to such a varied global public. Piketty’s Capital has been discussed in many high ranked academic journals, and at the same time, it has come out to a broader audience with advertisements in places like the underground public transportation in metropolises around the world. The title of the book is also very ambitious in so far as the title Capital claims to be a follow up of Karl Marx’s Das Kapital for the twenty-first century. Piketty is similar to Marx in his ambition to give a large historical, or a world historical perspective on the significance of capitalist economy for the development of global society. Given this background it could be interesting to consider the relations between Piketty’s Capital and Marx’s Das Kapital.

 

 

Main Thesis

My main thesis is that although Piketty gives a very essential theoretical and historically based prognosis and critique of the development of inequality as he expects it to increase in the twenty-first century. Ultimately, he is not able to provide a conceptual critique of capitalism which can surpass the basic market perspective in Adam Smith’s tradition of classical and neoclassical economy.

On this basis my thesis is that Marx’s conceptual determination of the capital, das Kapital, the capitalist mode of production, and capitalism in general could contribute to sharpen the outcome of Piketty’s enormous empirical and historical research on the development of inequality in capitalist societies beginning from the French Revolution. In addition, Piketty has also presented a calculated prognosis for the exacerbation of inequality in global capitalism during the twenty-first century.

According to Marx, the development of inequality is not accidental but inherent in the principle of capital and the capitalist mode of production. Therefore, Piketty’s empirically documented development of inequality should lead to a fundamental critique of capitalism. However, this is not the case.

On this background, I would like to consider a change of perspective from Adam Smith’s liberal market perspective to Marx’s productive perspective on capitalism. For Marx, capitalism is seen as an autopoietic bureaucratic and productive machinery or social system, which not only determines the production of inequality but also the basis for all social relations on a global scale.

Outline of the paper

In the following paper, I would like to substantiate this thesis with a presentation of Piketty’s theory, method and main results. I would further like to present Marx’s critical concept of the capital and capitalism. Finally, I would like to illustrate some of the consequences of Marx’s critical theory for the understanding of Piketty’s empirical work.

Piketty’s Capital

 

Piketty’s theory is situated in Adam Smith’s liberal tradition.

Piketty’s work is situated in Adam Smith’s liberal tradition. Adam Smith’s main work Wealth of Nations (1981 I-II) from 1776 is interesting because it represents the foundation of modern economy. Smith’s theory can be read in many ways and it has brought inspiration to many different perspectives on ethics, societal ethics, common moral, political philosophy, political theory, sociology and economy. Normally the economic perspective has been emphasized, but one could say the same regarding the other perspectives.

Wealth of Nations begins with a presentation of the division of labor as the basis for creation of wealth in a nation. Therefore, it should be emphasized that Smith has a general concept of work as the basis for his economic theory. Smith formulated this generalization on the basis of the Physiocrats’ more restricted idea that only agricultural work created value.

The second essential line of thought by Smith is that the products of work should be sold at a price determined in an open market, which on a larger scale implies the world market as its perspective. Therefore, the free market is essential for Smith.

The third line of thought is that the price of the commodity is determined by the work behind the creation of the product. However, Smith is not completely clear on this topic. The other perspective in Wealth of Nations is that the price is determined by the exchange in the market. In other words, Smith’s theory is ambivalent concerning the creation of value.

It is this ambivalence in Smith’s theory, which is in the center of discussion during the next two hundred years among economists, especially in the neoclassical economic tradition.

On the one hand, the work perspective leads to an internal understanding of the fundamental role of work in comprehending societal relations and institutions. This is what leads to the sociological perspective on the relationship between economy and society. Marx’s, Durkheim’s and Weber’s theories should also be mentioned here.

On the other hand, we have the price and market perspectives, which become the dominant perspectives in later economic traditions. It is in these traditions that we find the most economists having an influence on economic practice and on economic education. Thomas Piketty should be placed in these traditions.

Piketty’s research method: economy as part of the social sciences

Piketty is a market economist based in Adam Smith’s liberal tradition and the later neoclassical liberal tradition. However, Piketty has a much broader theoretical and methodical horizon, which should be understood on the background of Piketty’s French formation.

The interesting thing about Piketty’s method is that he wants to integrate economics as a sub discipline of social sciences, alongside history, sociology, anthropology, political science and even literature (Piketty 2014: 573 ff.). Piketty has his specific methodological perspective from the French Annales School and from Francois Furet’s quantitative historical method, which gives him a long and convincing historical perspective (Bouvier & Furet 1965; Piketty 1998; Piketty 2001; Piketty 2004; Piketty 2006). Piketty would not have been able to come to his results, if he had not integrated all these different perspectives.

Following this, Piketty wants to reconstruct the classical political economy as a value based science, which is connected to its political, normative and moral purpose (Piketty 2014: 573 ff.). This is the same ambition found in Adam Smith and further back in classical political philosophy by Aristotle and Thomas Aquinas. The fundamental question according to Piketty is, how public policies and institutions can bring us closer to an ideal society (Piketty 2014: 574). This was also the question raised by Aristotle, Aquinas, Adam Smith, Hegel and Marx. They had very different answers to this question, but they all had in common that the economy should be subordinated to the political, normative and moral value horizon. Economy could not be sustained independent of the moral, social and political interpretation.

According to Piketty, political economy should be a part of public discussion meaning that the shared values should be found in public democratic discussion. According to Piketty, this is not the case in most economic theory and practice in which economic models are used without regard to the political, social, cultural and historical context.

Piketty’s basic thesis: r > g – revenue is bigger than growth in a long historical perspective

Although Piketty has these critical perspectives on economy, he is in many ways still a traditional market economist based in Adam Smith’s liberal tradition and the neoclassical tradition. Piketty’s focus is price, market and equality in the distribution of goods. It is in this background that Piketty is concerned with the liberal discussion of inequality.

Piketty’s basic thesis is that revenue, r, has been bigger than growth, g, during the last two hundred years in Europe and the US, and more generally in all higher developed societies in recent history. Therefore, there has been a tendency towards a strong inequality in the last two hundred years in Europe. In general, this has also been a tendency throughout European history and in all higher developed societies. In that sense, all societies in history have been class based societies, albeit in different forms.

Patrimonial Capitalism

It is Piketty’s expectation that a new form of capitalism has been created, which he calls patrimonial capitalism (Piketty 2014: 173). It could seem to be a new form of capitalism, but in fact, it is a form of capitalism, which was known from the late 1800s until 1914. It is characterized on a huge accumulation of private wealth among a small part of the population, the upper 10%, 1%, 0.1% and 0.01%. At the beginning of the 1970s, the total value of private wealth in the Western societies stood between two to three and a half years of national income. Forty years later, in 2010, private wealth represented between four to seven years of national income in the Western world. The general evolution is clear: This is a strong comeback of private capital in the rich countries since 1970 (Piketty 2014: 173). This concentration of wealth is what Piketty calls ‘patrimonial capitalism’.

Piketty regards the new patrimonial capitalism as a repetition of something, which was formerly known in history from the late 19th to early 20th century. It is characterized by a high concentration of wealth in a low-growth environment like the nineteenth century (Piketty 2014: 237). The crisis of 2008 was according to Piketty the first crisis of the globalized patrimonial capitalism of the twenty-first century (Piketty 2014: 473). He expects that it will be followed by other crises. This is the scenario that Piketty expects for the twenty-first century.

Patrimonial capitalism, heirs and entrepreneurs

Consequently, the strong concentration of wealth can give rise to a tendency where the ‘entrepreneur’ transitions to the ‘heir’ as the basic figure of capitalism. According to Piketty, all large fortunes, whether inherited or entrepreneurial in origin, grow at extremely high rates, regardless of whether the owner of the fortune works or not (Piketty 2014: 439ff.).

Piketty gives a very illustrative example comparing Bill Gates, the entrepreneur among all entrepreneurs, and Liliane Bettencourt, the heiress of the cosmetics company L’Oréal. Between 1990 and 2010, Bill Gates’ fortune increased from $4 billion to $50 billion. In the same period, Liliane Bettencourt’s fortune increased from $2 billion to $25 billion. Both fortunes thus grew at an annual rate of more than 13 percent from 1990 to 2010.

Piketty also mentions Steve Jobs, who is regarded as a more creative entrepreneur than Bill Gates. But at the top of his career, his fortune was only $8 billion in 2011.

Piketty’s conclusion is that inheritance becomes the main access to the creation or growth of fortunes, and not the entrepreneurial spirit. Therefore, wealth is not just a matter of merit, and capital grows according to its own dynamic, when it has passed a certain size. The reason for this is the simple fact that the return on inherited fortunes is often very high solely because of their initial size.

Inequality – The economic system is the problem

It is a common discussion in liberal political theory that inequalities are acceptable if they serve the common good. This is also what has been stated in §1 of the Declaration 1789: “Men are born and remain free and equal in rights. Social distinctions may be found only upon the common utility”. It is on this basis that entrepreneurs becoming extremely rich while compared to other people becomes acceptable.

However, Piketty claims that the entrepreneurial argument cannot justify all the inequalities of wealth, no matter how extreme (Piketty 2014: 443). This is a claim that we find in Rawls’ liberal theory as well (Rawls 1971). As we have seen, the general class based inequality r > g combined with better returns on capital as a function of initial wealth makes it possible that fortunes can grow and perpetuate themselves beyond all rational limits and beyond any possible rational justification in terms of common utility.

In this way, it does even not take one generation to move from an entrepreneur to a rentier. Entrepreneurs can be transformed into rentiers in their own lifetime, and their wealth can be multiplied more than tenfold in twenty years as in the case of Bill Gates and Liliane Bettencourt (Piketty 2014: 443ff.).

The consequence is that even the merit criteria in §1 of Declaration that social distinctions are acceptable if they serve the common utility or the common good is very difficult not to say impossible to concretize. It is very difficult in praxis to sustain the distinction between the entrepreneur and the rentier when the first can be transformed into the second in a very short time as has been exemplified with the case of Bill Gates.

As I understand Piketty, he draws the conclusion that the most important problem is not to clarify whether inequality serves the common utility or not? The most important problem is that the accumulation of wealth among the 1%, the 0.1% and not at least the 0.01% tends to represent 70%-90% of all the countable wealth in global societies. It is this enormous concentration of wealth that justifies Piketty’s use of the concept of patrimonial capitalism.

Patrimonial Capitalism

The concept of ‘patrimonialism’ is situated in Max Weber’s classification as a traditional form of governance (Weber 1980: 682 ff). It has its origins in the specific patriarchal form of authority in the family. Following up, it can be broadened out to concern patrimonial forms of government in which political and or economic power can be concentrated. In this form of government, authority and power form a political unity. It is this traditional unity which transgresses into the power and authority of economic wealth in the patrimonial form of capitalism, as has been described above.

Problems with Patrimonial Capitalism

Per my observations, Piketty draws the following conclusions concerning the patrimonial form of capitalism.

Society will fall behind the French Revolution

Piketty’s perspective is overall that patrimonial capitalism will bring society back to before the French Revolution. Some of the modern institutions may formally be maintained but the reality may be different.

Suspension of basic principles of Human Rights 

The second point is that the basic values of modern society are suspended as they are formulated § 1 of the Declaration: “Men are born and remain free and equal in rights. Social distinctions may be found only upon the common utility”. In patrimonial capitalism, there are basic distinctions which are bound to inheritance and which therefore are transferred from generation to generation. This is exactly what characterizes a traditional pre-modern society. In such a society, men are not equal in rights, because wealth is the basic structuring parameter for the life chances of people in all matters concerning wealth, education, health, work, and political, social and other positions in society. In short, human rights are suspended in such a society.

Suspension of democracy 

The third point is that democracy will be strongly weakened or even suspended in such a society, and there can be no possibilities to develop democracy in such a society.

Stagnation of society 

The fourth point is that patrimonial capitalism will not be able to develop a society because the entrepreneur and innovator will lose their possibilities compared to the primacy of secure reproduction and accumulation of the inheritance.

Violence and corruption will dominate society 

The fifth point is that such a society will be built on violence and corruption instead of legal and deliberative political institutions.

The rule of war between states 

The rule of war between states will be dominant because interstate conflicts cannot be solved through diplomacy and international law.

 

Patrimonial capitalism does already exist in many societies in the world

The description of patrimonial capitalism may seem like a doomsday prophecy, a description of the last days. But in fact, the reality is that this form of capitalism does already exist in different forms in many societies in the world and maybe even the most societies with a developed economy combined with a strong authoritarian and corrupt regime. Even in the US we find signs of patrimonial capitalism, when wealthy people have enormous possibilities to influence elections, political life, allocation of resources and social decisions.

Piketty’s Capital: A platform for a critique of capitalism and its perspectives

In the end, the interesting thing about Piketty’s analysis is in the end that it is an economic analysis on the basis of the fundamental principles of the French Revolution. Piketty’s own conclusion is that the French Revolution failed and is an illusion.

With this background, one could have expected that Piketty had been critical toward capitalism as an economic system. But this is not the case. Piketty is worried about the historical consequences of capitalism, but he does not criticize capitalism in itself as an economic and social system. However, this seems to be a relevant topic as he has at least created a new platform for a discussion of capitalism, because he has uncovered some of the historical destructive perspectives in capitalism.

Marx’s Das Kapital

Introduction to Marx

It is in this background that I would like to discuss Marx’s concept of capital, das Kapital, and some of his perspectives on capitalism. Marx is such an interesting thinker in this context because no one has delivered such a strong critique of capitalism and political economy as him.

If we want to understand Marx’s critique of capitalism, we have to look shortly at his intellectual background and development. Marx (1818-1883) is a German intellectual strongly influenced primarily by Hegel’s political philosophy. Marx is a Hegelian who criticizes Hegel’s perspective on state, civil society, politics, and economy in Kritik der Hegelschen Staatsphilosophie 1844 (Marx 1841/42: 20-149). His basic critique of Hegel’s Philosophy of Law (Hegel 1955; 1991) is that Hegel ‘aufhebt’, lifts up or sublates the basic contradictions in civil society into a reconciliation, ‘eine Versöhnung’, in the State as an all-encompassing unity of the contradictions in civil society. According to Hegel, the contradictions in civil society were first of all constituted through the struggle between economic agents, who were only concerned with their own business. This is an insight Hegel had acquired through Adam Smith’ Wealth of Nations (Smith I-II 1981) and David Ricardo’s Principles of Political Economy and Taxation from 1817 (Ricardo 1996).

In his Kritik der Hegelschen Staatsphilosophie 1844, Marx mostly critizised Hegel’s Aufhebung and Versöhnung. Later on, his project became to reconstruct this political and political-philosophical critique of Hegel as a critique of political economy. Therefore, it would be right also to consider Marx as a Hegelian in this later period of his life after 1849, when he arrived as a political refugee to London. This is also what Marx remarks in his postscript to the second edition of Das Kapital (Marx 1970: 27f.). Marx comments on his method and claims that there must be made a distinction between the research (die Forschungsweise), in which the subject is taken in consideration, and the presentation (die Darstellungsweise), in which the topic is reconstructed as it has taken place. Die Darstellung, the presentation, means for Marx the same as how the subject can be developed in an idealized way which gives the impression that it could be a pure construction. One could say that it could give the impression of being a pure construction without relation to the reality in so far as it should present the essential (das Wesen) of the topic. In that sense, ‘die Darstellung’ could also be considered as a form of presentation and interpretation at the same time. Although Marx claims to be a materialist, he has such a style of presentation that it does remind us of a constructed model in the idealistic tradition of Plato and Hegel.

Marx’s Hegelian method

It is very essential to understand Marx’s Hegelian method, because it indicates that for Marx and for Hegel there are always two levels in the understanding of social phenomena. On the one hand, we have the surface, ‘die Erscheinung’; this is the empirical level, where the events happen. On the other hand, we have the understanding of the phenomena; this is the level where the essence, ‘das Wesen’, is expressed. As the third step, Hegel and Marx claim that it is only from the perspective of the essence, ‘das Wesen’, that we can understand the empirical level, where the events take place. According to Marx and Hegel, this was the meaning of dialectics.

It is exactly this phenomenological double perspective with the movement from Erscheinung to Wesen and from Wesen to Erscheinung, which is so strange for the American and English way of thinking, and is also the dominant perspective in modern liberal economy. However, it is this double perspective, which gives Marx the possibility to make a critical reconstruction of the political economy and present a new perspective on the relation between economy and society.

Marx’s project is to reconstruct the classical political economy

With this background we can discuss what Marx is concerned with in Das Kapital. Here we should remark on the subtitle of Das Kapital, which is Kritik der politichen Ökonomie – Marx wanted to criticize and reconstruct the political economy because it did not present what should be its essence, das Wesen. One could say that Marx wanted to write a new edition of Smith’s Wealth of Nations. According to Marx, political economy had moved away from a scientific project to a political project that was only concerned with price and market, the surface, ‘die Erscheinung’, because it served to hide that the dominant economy’s ‘Wesen’, the workproces, was based on exploitation of the workforce, who produced value and surplus-value.

Marx did not finish his project; he did not finish the presentation of the total reproduction of the economic system. In that sense, we cannot say that Marx has presented a model for the total reproduction of the economic system. Marx edited only the first volume of Das Kapital in 1867. Friedrich Engels edited the next two volumes with support from Marx’s remaining manuscripts. Therefore, the question is what status can Marx’s theory have, when it is not finished in the same sense as Adam Smith’s Wealth of Nations is a finished work?

The three edited volumes of Das Kapital, the collection of Marx’s preparatory work papers collected in Grundrisse der Kritik der Politischen Ökonomie (Marx 196-?), combined with the rest of Marx’s work give a sufficient basis to understand Marx’s new theoretical contribution to the political economy. Marx presented the basic principles in a critical theory with a new perspective on political economy understood as the reproduction of what he called the capitalistic mode of production or the capitalistic economic system. Broadly speaking, it gives a new understanding of the basic principles in a capitalistic society. In that sense, Marx’s theory provides the basis for a sociological understanding of the relation between economy and society, and in a wider perspective for the interpretation of history.

The glorious and tragic days of Marxism have ended. Therefore, today Marx’s theory should be seen in line with other economic and sociological theories, and it should be seen as part of a hermeneutical work, which in the end determines the integration of the different possible scientific perspectives.

With this background, I would like to present some of the essential topics in Marx’s theory in Das Kapital and Grundrisse, which will be relevant for a discussion of Piketty’s Capital. I will concentrate on the first chapters of Das Kapital as it is here that we find the basis for all of Marx’s theoretical construction.

The concept of Capital – The constitution of das Kapital

It already becomes clear from the title page itself that Marx’s Das Kapital is a very special treatise. On the one hand, it is in fact very similar to Hegel’s Philosophy of Right (Hegel 1955), and on the other hand, it is very different compared to Adam Smith’s Wealth of Nations and Piketty’s Capital. Therefore, it can be enlightening to compare it with these treatises.

Smith’s theme is the nature and causes of the wealth of nations, and chapter 1 begins immediately with a presentation of the division of labor as what has mostly improved the production of wealth (Smith 1981, I: 13 ff.). All the categories here and in the rest of the treatise refer to empirical matters. All of Smith’s categories have an empirical reference.

The same could be said about Piketty’s subject, which is equality and inequality with reference to the distribution of wealth.

Marx’s Introduction does not have this character. The title of the book, Das Kapital, is an abstraction and does not have an immediate empirical reference. The subtitle is Critique of the Political Economy. This means that the treatise is concerned with a critique and reconstruction of political economy as we know it from Smith and Ricardo. The subtitle of the first volume of Das Kapital is the Capital’s Production Process. The subject in Das Kapital is the capital. This is very strange in itself. How should capital be understood in a determined form? Normally we understand capital in quantitative terms, however, in Marx’s determination of das Kapital (Marx 1970: 12) we have to do with a concept. Capital is a conceptual abstraction, and it is the production and reproduction process of this subject, which is the topic of Das Kapital. This is also, what Marx emphasizes in the introduction to the first edition of Das Kapital in 1867 (Marx 1970: 11-17). In the postscript to the second edition from 1875, Marx comes back to the same theme concerning his method, which he designates as being the same as Hegel’s method, although turned around, because Marx claims that Hegel is an idealist, and Marx claims to be a materialist (Marx 1970: 27). I think that the two methods are very closely connected, and I find it difficult from a methodological perspective to see the difference between the beginnings of Hegel’s Philosophy of Right and Marx’s Das Kapital.

Marx’s development of the concept of capital

The first chapter of Das Kapital begins in the same abstract style with an analysis of the wealth in a society dominated by the capitalist mode of production, which presents itself as an amazing collection of commodities. The skeleton, ‘die Elementarform’, the basic element of such a society is the commodity. This is the reason why Marx begins his analysis with an analysis of the commodity.

In chapters 1-3, Marx develops all the basic concepts of work such as the production of the commodity, the use and exchange value of the commodity, the equal exchange of commodities, and the invention of money as the means of exchange of equal values.

I would especially like to emphasize chapter 1, section 4, where Marx introduces the fetish character of the commodity and it’s secret. In a commodity producing society, all social relations become hidden in the commodities, which are all a product of the work process. It is the commodities that seem to be the real actors in society (Marx 1970: 86). This is the beginning of the creation of the alienation in a society dominated by the capitalist mode of production.

In the third chapter, Marx describes how money becomes the general presentation of the circulation of commodities. There is a change from the form ‘commodity – money – commodity’ to the form ‘money – commodity – money’. In this way, money comes into the center of society and becomes an aim in itself.

In the fourth chapter, The Transformation of Money into Capital, Marx questions the addition of value when only equivalents are being exchanged all the time. Marx’s simple answer is that the workforce, ‘die Arbeitskraft’, is a commodity, which has the ability to produce more value, a surplus value or ‘Mehrwert’, than it costs to reproduce it.

Marx speaks about the transformation of money into capital, when the production takes the character of a production of surplus value, ‘Mehrwert’, and in that sense a production of Capital (Marx 1970: 180 ff.). Marx speaks about society as a capitalist society when the production of capital dominates society.

The term ‘capitalism’ is a technical term, a concept for a specific form for economy and society. The concept capitalism has its origin in the Late Latin word capitale derived from caput, meaning ‘head’, which is also the origin for chattel and cattle in the sense of moveable property. Capitale emerged in the 12th to 13th centuries in the sense of referring to funds, stock of merchandise, sum of money, or money carrying interest. In English language, the word capitalism is used since the 1850s as the determination of a specific form of society, in which capital and capitalist modes of production have a determined significance.

On the basis of the concept of capital, Marx’s project is to develop an all-encompassing description of the reproduction of a society dominated by the capitalistic mode of production. As mentioned, Marx did not finish this project. In this sense we could say that Marx did not succeed. However, this would not be a correct judgement, because Marx developed the base for a new understanding of economic significance in a modern society.

I will not go in detail with a further presentation of Das Kapital, but would only like present some of the consequences of Marx’s perspective. I speak here about the abstract theory in itself and not about the specific historical forms, which are determined by many other historical and social factors. In that sense, the abstract principle of capital does only indicate the determinate productive principle in a specific historical form of society.

Marx gives a totally new perspective on liberal economy

The essence is that Marx determines a new perspective on economy and society. Das Kapital, the capital, is a driving machine or subject, which aims to produce capital in an escalating intensity and quantum. This is also determined as accumulation of capital.

Das Kapital is a critique of the liberal market economy

Marx theory is a critique of political economy. The word ‘critique’ could be mystifying. Therefore, let me first express what I think critique means in this context. It primarily means to show what is inconsistent, hidden or suppressed in the understanding of a liberal market economy, and secondarily to present a reconstruction of a basis for another understanding of economy. In the liberal economic perspective, the economy does only mediate social relations; it does not produce social relations. The basic categories are therefore price, market and commodity. In this perspective, the economy is in itself a neutral mediator. In Marx’s perspective, it is different.

Das Kapital is the productive and destructive subject of society

In Marx’s perspective, das Kapital not only produces ‘Mehrwert’ and ‘Kapital’, or is not only an economic productive force. Das Kapital forms a society, its institutions and its social relations in a specific adequate way. In this context, the following topics can be emphasized:

Commodification

Das Kapital has a tendency to create a commodification of all social relations and all human life.

Die groβe Profanierung – All pre-given norms are broken down and restructured in accordance with the new historical imperatives

All pre-given norms are broken down, because they are under pressure to be relativized and commoditized. This is ‘die groβe Profanierung’, this is the big profanation of the Holy and of all social norms. In The Communist Manifesto, it is stated in this way: “All that is solid melts into air, all that is holy is profaned, and man is at last compelled to face with sober senses his real conditions of life, and his relations with his kind” (Marx 1968b: 529).

Die groβe Verschleierung – the big concealment

The big paradox in capitalism is that its consequences are ‘verschleiert’ or veiled. The astonishing thing is that this veil is constituted through the liberal market economy, in which all distinctions are ‘aufgehoben’, lifted up and abolished in the general equivalent, money, at the market. All social distinctions are relativized and hidden on the market. In the end, there is only the distinction more or less of the general equivalent, money.

The big illusion – the liberal market economy produces the big illusion about society

The liberal market economy creates or produces the big illusion about this same form of society, because the abolishment of all distinctions becomes a hindrance for critique. We are all equalized in the general equivalent, money. Therefore, there is no internal way from the liberal market economy to a critique of the specific formation of the social relations, because these distinctions are not inherent in the economic theory. The liberal market economy is constituted through an abstraction from the possible distinctions.

Summing up – Marx has presented a specific theory which can be applied on empirical work with economy and society

What I have presented are the basic principles in Marx’s critique of the political economy. As mentioned, Marx has developed a much broader and differentiated theory compared to, what has been presented here. However, in the end, what we have from Marx is a theory with a specific perspective on economy and society, making it possible to apply it in specific empirical work.

From Marx to Piketty – From Piketty back to Marx

 

Marx and Piketty on empirical work – What is the difference?

In this context, it could be interesting to question how empirical research would be different in a Marx perspective compared to a Piketty perspective. Let us imagine that Marx had conducted similar research as Piketty on the development of inequality in France the last 200 years. What would be different? I am not sure that the concrete research method would be different. Piketty has gone down to the sources and tried to give an answer to his question. The difference would lie in how the questions are posed. Piketty poses his questions inside the horizon of the liberal market economic theory and the neoclassical economic theory. He does not pose questions to or discuss this economic perspective. It is as if it were pre-given or impossible to fundamentally question it. Consequently, we do not move outside the framework of this economic perspective.

The practical results of Piketty’s research are not very significant compared to the enormous research he has done.

The taxation card is Piketty’s only solution to the huge problems created by growing inequality. However, Piketty does not really believe that it is possible to establish the necessary taxation system. Therefore, one could say that there is a lack of critical potential in his theory although he delivers amazing empirical material. The practical results of his research are not very impressive compared to the enormous research he undertook.

Marx’s perspective on empirical economic research

On the other hand, Marx has an incomparably stronger critical theory, which can help pose many interesting research questions and could be integrated in an empirical project.

In the end the dividing line between Piketty and Marx is the following. For Piketty, the liberal market economy is regarded in itself as a neutral system. For Marx, the problems of inequality observed by Piketty are an inherent consequence of capitalism. It could simply not be otherwise because a basic principle in capitalism according to Marx is capital accumulation and capital concentration. Piketty remarks that contingent historical events, the first and second world wars combined with a strong left wing policy, created the basis for diminished inequality in the period 1945-1975, and not fundamental changes in the liberal economic system.

In Marx’s perspective, it would also have been a good idea to change inequality through taxation. However, the interesting perspectives are the basic contradictions in the economic system itself, and whether these contradictions can find a practical solution is a political question.

 

Marx and Piketty – research perspectives and strategies

What to do in a world dominated by the liberal economic perspective?

A basic question would be how one should conduct research in economic oriented topics when most research resources are concentrated around the liberal economic perspective. The strategy could be to integrate research from the liberal economic perspective in a hermeneutical horizon, which is more influenced by critical theory. In this way, it would be possible to use the given empirical resources in another critical hermeneutical perspective in which an inherent critique of capitalism could be formulated.

References

Declaration of Man and the Citizen 1789

Bouvier, Jean; Furet, François; Gillet, Marcel (1965), Le mouvement du profit en France au XIXe siècle, Paris and La Haye, Mouton & Co

Hegel, G. W. F. (1955), Grundlinien der Philosophie des Rechts, Hamburg, Felix Meiner Verlag.

Hegel, G. W. F. (1991), Elements of the Philosophy of Right, Cambridge, Cambridge University Press.

Marx, Karl (1968), Die Frühschriften. Stuttgart, Alfred Kröner Verlag.

Marx, Karl (1968a), Kritik der Hegelschen Staatsphilosophie 1841/42, in. Marx, Karl (1968), Die Frühschriften. Stuttgart, Alfred Kröner Verlag

Marx, Karl (1968b), Manifest der kommunistischen Partei, in: Karl Marx, Die Frühschriften. Stuttgart, Alfred Kröner Verlag.

Marx, Karl (1970), Das Kapital band I, MEW 23, Berlin, Dietz Verlag.

Marx, Karl (196-?), Grundrisse der Kritik der politischen Ökonomie, Frankfurt, Europäische Verlagsanstalt.

Piketty, Thomas (1998), Les hauts revenus face aux modifications des taux marginaux supérieurs de l’impôt sur le revenu en France, 1970-1996, CNRS, URA928, numero 9812. [High-Income Taxpayers’ Reaction to Marginal Income Tax Rates Changes in France, 1970-1996].

Piketty, Thomas (2001), Les hauts revenus en France au 20e siècle: inégalités et redistribution, 1901-1998, Paris, B. Grasset.

Piketty, Thomas (2004), L’impact de la taille des classes et de la ségrégation sociale sur la réussite scolaire dans les écoles françaises: une estimation à partir du panel primaire 1997, EHESS, Paris-Jourdan.

Piketty, Thomas; Valdenaire, M. (2006) L’impact de la taille des classes sur la réussite scolaire dans les écoles, collèges et lycées français – Estimations à partir du panel primaire 1997 et du panel secondaire 1995, Ministère de l’éducation nationale, Paris.

Piketty, Thomas (2014), Capital in Twenty-First Century, Cambridge Massachusetts, The Belknap Press of Harvard University Press.

Rawls, John (1971), A Theory of Justice, The Belknap Press of Harvard University Press, Cambridge, Massachusetts.

Ricardo, David (1996), Principles of Political Economy and Taxation, Amherst, Prometheus Press.

Smith, Adam (1981), An Inquiry into the Nature and Causes of the Wealth of Nations, Volume I-II, First edition 1776, Indianapolis, Liberty Fund.

Weber, Max (1980), Wirtschaft und Gesellschaft: Grundriss der Verstehenden Soziologie, 5. Rev. Aufl. Tübingen, Mohr.

Rachael Lorna Johnstone, Offshore Oil and Gas Development in the Arctic under International Law: Risk and Responsibility (Leiden: Brill, 2015)

The Arctic is estimated to hold the world’s largest remaining untapped gas reserves and some of its largest undeveloped oil reserves. Developing these resources in the harsh Arctic environment will be complex and challenging and can have far-reaching consequences. Consequently, the prevention of offshore marine pollution from oil and gas development activities is amongst the more important issues that need to be discussed in this context.

Continue reading Rachael Lorna Johnstone, Offshore Oil and Gas Development in the Arctic under International Law: Risk and Responsibility (Leiden: Brill, 2015)

Europe’s Constitutional Law in Times of Crisis: A Human Rights Perspective

In this paper, we aim to survey representative constitutional amendments in the European Union’s (EU) area, whether attempted or accomplished, as well as significant adjudications by constitutional bodies. Then, we proceed to assess these legal phenomena in light of human rights jurisprudence. Pivotal reference in our work is the recently released 7th volume of the Annuaire international des droits de l’homme (Athens: Sakkoulas, December 2014), edited by G. Katrougalos, M. Figueiredo and P. Pararas under the aegis of the International Association of Constitutional Law. Not only does this volume comprise the work of some of Europe’s noted constitutionalists, it also addresses the constitutional matters central to this paper in light of human rights jurisprudence, which is the area of expertise of one of the paper’s authors, i.e. Ágúst Þór Árnason, and the area that the other author, Giorgio Baruchello, has construed axiologically as a pivotal instantiation of civil commons, i.e. “all social constructs which enable universal access to life goods”. Have European constitutions continued to function qua civil commons in the crisis years? That, at the deepest level of value scrutiny, is the question that our joint survey and analysis aim to answer.

Continue reading Europe’s Constitutional Law in Times of Crisis: A Human Rights Perspective

A reply to the reviewer of “Totalitarismo, democrazia, etica pubblica. Scritti di filosofia morale, filosofia politica, etica”

As it is written in the foreword, what the book offers is, immediately, an overview on the current status of the moral and political philosophical debate (each chapter is a sort of piece of this mosaic). But reading deeply the book is possible to find, as is normal, a fil rouge, a background thesis, that runs through all the chapters: an attempt to define in a critical way the moral and political framework of the current society, trying to delineate alternatives in the way in which we intend our aggregative forms – especially starting from the idea and the practice of democracy, nowadays reduced into formal mechanisms –, and possible escape lines.

 

As for the quoted authors, as ever happens in the essays, I made a selection – it’s strange having to specifying this. And so, I chose the authors that, for me, are fundamentals and those that are secondary, in the economy of my speech, deepening the first – and the same with the arguments, some are main themes same are collateral analyses for me. And so, I criticized the authors with which I disagree, specifying why – without obscure them from the philosophical scene, for their impact on that –, and I used quotations with which agree, specifying the source – for not assign to me those ideas – but declining them in the economy of my personal speech. And about some mentioned contents of my discourse, I would like to clarify in short at least two important issues. First, Arendt and Jonas sit well together for me because in Arendt is possible to find an indirect but very cogent critique to the naive and dangerous stances of Jonas: the sacralization of biological life, the mythologizing and the normative use of the nature, is at the ground of the Nazi ideology, as Arendt shows speaking about the modern triumph of the anthropological figure of the animal laborans, emblematically represented by Eichmann. Second, to affirm that the Declaration of Human Rights of 1948 is universal, modern and Western, is not a disclaimer of its advancements – why should it be so is not clear for me – but is a reasoning on another level than that of the socio-political decisions: that of the conceptual background of our society – that contains also its advancements. This critical view is extremely important because permit us to intend our society – and its advancements – not as the only one possible society – like for example in the Eurocentrism or now, we can say, in the “Westerncentrism” – but as a possible society; avoiding so also the theoretical “Westerncentrism” that is given in the reading of authors that are not modern and/or Western with the eyes of a modern and Western person – e.g. the sui generis Popperian reading of Plato, Hegel and Marx.

 

For me too the book would have benefitted from an analytical index and a bibliography, it is a pity that the publisher has not made, however, as is written in the premise, the footnotes are enriched with the necessary bibliographic details.

Aðalheiður Ámundadóttir & Rachael Lorna Johnstone, Mannréttindi í þrengingum: Efnahagsleg og félagsleg réttindi í kreppunni (Akureyri-Reykjavík: Háskólinn á Akureyri og Mannréttindaskrifstofa Íslands, 2011)

Three of the biggest Icelandic banks, which had been privatized in the late 1990s and early 2000s, collapsed and were taken into public ownership. An economic collapse was a fact and the former Prime Minister Geir H. Haarde asked God to bless the Icelandic nation at a press conference in October 2008. Certainly, the crisis (kreppa) was not a nightmare we would wake up from, but a reality that had to be dealt with. The next step was when the International Monetary Fund (IMF) was called in to organize a crisis management program. Then the currency collapsed. The unemployment rate has since been on the increase; from 1.5% in September 2008 to 8.7% in May 2009 with others taking wage cuts and/or cuts in working hours.

 

Although the everyday life of the Icelandic general public was in some way perceivably paralyzed in the fall 2008, people began to revive themselves. It was at this time that “The Kitchenware Revolution? was conceived in Iceland. The general public started a massive protest against the government. Icelanders, who have no great tradition of political resistance, rallied in the streets with their pots and pans. In front of Althingi (the national Parliament) people knocked upon their household utensils. January 2009 witnessed masses of people who gathered everyday, aiming to disturb the operations of the parliament, demanding that the government resign. For the first time since 1949, when Iceland’s entry into NATO was objected to, the police used tear gas to keep protesters back from the Althingi. Icelandic society was experiencing formerly unknown turbulence.

 

The Kitchenware Revolution won its first victory on the 23rd of January 2009, as the government resigned. New elections were called for and took place on the 25th of April 2009. The new government elected confronted the great task of “saving? Iceland from bankruptcy without jeopardizing its rather strong welfare system. For that to be possible it is obvious that the prosperous population of Iceland has to adjust to a new way of living. During these times of kreppa and turbulence both the national government and the municipalities have been facing huge decline in their annual budgets and the undertaking of cutbacks in services has been the biggest task ever since.

 

It was, and still is, a huge project to restructure the welfare system during these times of great cuts in national budgets. During such difficult times a book like ‘Human rights in crisis: Economic and social rights during an economic crisis’ is greatly appreciated. Not only is it the first research conducted after the economic collapse focusing on human rights issues; it also provides valuable guidelines for those working in the public sector and raises the issue of the importance of awareness of human rights in it.

 

By outlining some of the main issues of the International Convenant on Economic, Social and Cultural rights, the authors provide valuable guidelines on how the national and the local governments can avoid infringing the human rights of the citizens when cutting down expenses. As the authors Aðalheiður Ámundadóttir and Dr. Rachael Lorna Johnstone point out, it is more important than ever to appraise human rights during financial decline.

 

The main aim of the book is twofold; firstly to serve as a guide for Icelandic politicians, officialdom and the general public on economic, social and cultural human rights during times of economic crisis, as it outlines what these rights are and how they can be secured and accomplished through laws and policy making. Secondly, to increase the nation’s general knowledge in the field of economic, social and cultural rights. As the authors of the book recognize clearly, it is during times of kreppa that the task of protecting human rights may very well be more important than ever. A primary reason is that during such difficult times the economic situation tends to overshadow every other aspect of society, and the commonly heard phrase “it is not the right time to focus on this now” tends to distract people from other pressing issues and important accomplishments such as first and foremost protecting the actual human rights of the citizens.

 

Although Iceland has been a country of prosperity, human rights issues can be argued to have rather been in the shadow of public discourse on citizen’s wellbeing. The focus has been on the ‘welfare’ of the citizens, which of course is deeply related to human rights, but does not coincide with it. Indeed, the book casts light on how one of the main issues of past Icelandic governments has been to protect the general public’s welfare, sometimes in conflict with human rights considerations. The book’s body is built around the International Covenant on Economic, Social and Cultural rights and Ámundadóttir and Johnstone argue convincingly why they choose to build on this specific covenant rather then than theInternational Covenant on Civil and Political rights.

 

The aim of the book to increase knowledge and educate about the International Covenant on Economic, Social and Cultural rights and human rights issues in general is well conceived. The book starts with very informative chapters on the Covenant; its geneses and its role within the nation states and the work of its UN committee. Iceland’s legal obligations are also extensively discussed, since the covenant has been long ratified. Also, there is a chapter that outlines the essence and intentions of the commitments undertaken by the member states.

 

Since the book is designed for people working in the public sector with very diverse backgrounds and knowledge of the existing laws, these chapters are very enlightening and essential for further understanding the foundations of the covenant and, no less importantly, how it can be applied to policy and planning during times of restructuring and retrenchments in public services. The authors manage to explain the ideology of and the key-concepts pertaining to economic, social and cultural human rights clearly and in a helpful way, also for persons with no legal background. The reader obtains a good overview of the central tenets of the covenant and is likely to be better informed on how retrenchment has to be considered with regard to protecting human rights during economic decline. Good examples of these are the clear explanation of ‘progressive realization of rights’ and ‘progressive-regressive measures’.

 

Chapters engaging with specific issues of the Covenant in the Icelandic perspective follow these first instructive chapters. Ámundadóttir and Johnstone explain their choice of using the examples of employment rights, social rights and rights to education to outline the implementation of the covenant in Iceland before and after the economic crises. It can be argued that they could have taken different examples from the Covenant, or that it would have been helpful to use more than just three specific fields. However, it can also be argued that the authors manage to give a very concrete representation through their choice of specific fields, especially concerning the aim of the book to serve as a guide for national and local government and officialdom.

 

As stated above, the unemployment rate in Iceland has risen enormously since the fall of 2008. The chapter on the right to employment gives important insights on how governmental policy and regulations impact human rights and what has to be taken into consideration to keep the commitments under the Covenant on Economic, Social and Cultural rights. The authors give examples about certain things that have worked out well despite decline in budgeting; and they very well advise on what has to be taken into improved consideration in respect of the economic, social and cultural rights. The standpoint of the book is very relevant for the public sector and easy to learn from as it is summarized in a very resoluted manner and without any preciosity.

 

A good example is when Ámundadóttir and Johnstone point out how changes in regulations concerning the rights of students to unemployment benefits greatly affect their possibilities to make a living during the summer months, since the Icelandic Student Loan Fund only lends funds to students during a nine-month period each year. Therefore these changes in regulation concerning unemployment benefits leave students that do not have a summer job out of their right to enjoy the benefits of the welfare system. This is just one example on how the authors provide constructive illustrations on the subject matters, which gives the reader an idea of what kind of problems they can expect to approach during cutbacks in the public sector and in what ways they might be solved without violating human rights.

 

The book is in general written in an approachable language suitable for any reader. My conclusion is that Ámundadóttir and Johnstone reach the aims of their book, which is very enlightening and informative and manages to clear the line between ‘welfare’ and ‘human rights’. But as the authors state in the book, the Icelandic focus on ‘welfare’ has somehow shrug off the great importance of respecting human rights. The difference between those two concepts has not been clear enough, neither in political nor in public discourse. The book does deepen the understanding of the importance that the people who participate in the decision-making process with regards to economic, social and cultural rights. As well as it underlines the importance that the citizens themselves be aware of their rights.

 

This book is also an important contribution to human rights education in Iceland, a field which has been neglected by the educational system. Therefore this book is treasured even more for politicians, public officials and the general public. As Ámundadóttir and Johnstone underline correctly, there is great need to increase human rights awareness in Icelandic society, not least during these times of crisis, in order to enable politicians and public officials to make decisions based on enlightened knowledge of human rights, thus avoiding violations of basic rights of the population. It is also in the interest of the citizens to be more knowledgeable about their human rights, as it helps them to experience themselves as rightful owners rather than receivers of charity and enjoy human rights with dignity.

 

Today’s demand is resting on open, transparent and trustworthy administration; this book can help to direct us toward that path. It has to be distributed widely among officials and politicians in national as well as municipal governments for the benefit of the wellbeing of all Icelandic citizens and in order to minimize the negative effects of the crisis during times of retrenchment.