Tag Archives: United Nations

Human Rights as Part of the Human Security of Ukraine

The present reality of the European Community requires a complex analysis of international and inter-ethnic crises and armed conflicts. The context of recent events, the military conflict in Ukraine, human security in Europe are the key components in the policy of the European Union and number of democratic countries.

In Ukraine we have problems with the main part of human security as human rights, because of the negative heritage after the USSR as well as a difficult political and economic situation and a low level of legal culture. After the beginning of the conflict in 2014, the interest in human rights started to be in the first row and caught the attention of politics as well as society as a whole in Ukraine. The problem became so intense that the events and popularization of how to solve the existing issues in the country took its beginnings and action followed.

Before we actually get to talk about either human rights or human security, we should ponder on the following questions: What is security? What are its peculiarities? What is personal and international security and what influence does it have on human rights?

Security studies is a research area that has an interdisciplinary nature. It is linked to international relations, history, law, political science, economics, and several areas of military studies. The sources for this discipline are academic research and the monitoring of the behavior of the subjects of international law functioning under different conditions and depending on a series of external and internal factors. Security is divided into national and international according to the subjective criterion, and into military, political, economic, ecological, and informational according to the objective criterion[1]. Human security is among the latter group.

The notion of security has a subjective and politically charged nature, and it can change depending on the subject’s point of view. It can, in turn, generate a so-called security dilemmawhich has to do with conditions of uncertainty. For instance, the increase of military potential in a certain country or the conclusion of military treaties can cause neighboring countries to experience the sensation of a security deficiency[2]. Where does it come from? A couple words about history are needed.

The search for means to establish lasting peace in the international community has found its way through the idea of collective security. This concept of collective security consists in countries joining forces in order to achieve superiority in armaments, impose collective sanctions on the aggressor, and, finally, protect the mutual values of the participating countries and the “sense of international solidarity”[3]. It means that the countries interacting in the international activities accommodate their own national interests to the requirements of international security. Collective security is a shared value for the actors in international relations, it is a global value, and concerns global security (comprehensive security concept by Barry Buzan).[4] Collective security is furthermore a legislative and political system whose aim is to prevent probable conflicts among countries participating in international relations, and keep peace permanent. The institutions of collective security are as follows: The United Nations, the Organization of the Security and Cooperation in Europe, the European Union. The first to verbalize this idea was Woodrow Wilson, the President of the USA. By his initiative, the League of Nations was founded in 1919.

The complicated consequences of the Second World War and the endeavor to find ways to eliminate them urged the international community to found an organization that would unite the activities of the countries in the field of international collaboration and establishing peace basing their actions on international law. Thus, in 1941, the Atlantic Charter was signed, and then followed the Universal Declaration of Human Rights, where 26 countries declared their wish to collaborate and develop human rights. The fundamental document for United Nations activity was the United Nations Charter, also known as ‘the constitution of nations’. At that very moment, human rights became a separate sphere in the international discourse. The United Nations Charter is based on the principles of international law and it is the legal foundation for the United Nation activity. The United Nations Charter describes the aim, structure, bodies and the procedures of its activity, directions tor its activity, and the principles for the United Nations membership. The United Nations Charter also declares the supremacy of law and other international law obligations, which altogether makes the United Nations Charter a basic and essential document of international law. The United Nations are universal system with legal and institutional infrastructure, within whose framework the international community acts in order to solve mutual problems on both regional and global levels. The United Nations are the groundwork for international security. The main United Nations body is the Security Council, which is responsible for keeping international peace and security. According to the United Nations Charter principles, the United Nations has monopoly on using force to resolve various international conflicts (Chapter 7)[5].

The present-day notion of security has altered after the Cold War ended. It evolved from a brief notion of military threat to a multifaceted idea which includes economical, ecological, and social components. Human rights and their part in the legal relations system are another crucially important sphere. Human security relies on countries’ obligations, and the human rights recorded in international documents.

 The need of security is one of the fundamental personal needs that, according to Maslow’s hierarchy, regard all the aspects and spheres of human life. What it involves is not only a threat of armed conflict, but also the risk of losing something particularly valuable to an individual, that is, psychological comfort. The sense of security provides people with an opportunity to survive and live, to have their independence, human dignity, and a chance to grow. It gets them into a state of rest and permits a number of freedoms, such as freedom of thought and speech, the right to identity, including national, religious, and linguistic. The sense of security enables people to exercise their rights and grants them a sense of their rights being respected on both the personal and civilian levels.

By the end of Second World War, the state was still the primary subject of security; however, in present-day international affairs, the role of human being and non-state actors feature instead as ones of the key roles. Human rights are a branch of constitutional and international law that aims at the institutional protection of human rights, people, or larger groups; it’s aims also include control over rights enforcement and protection. By the first half of the 20thcentury recognition or non-recognition of human rights had belonged to the state. Occasionally, it is still true even nowadays. It was thanks to the 1909 Geneva Convention[6] and The International Red Cross and Red Crescent Movement,[7] starting in 1919, that began to draw the international community’s attention to the issues of human rights violations, especially during armed conflicts.

The tool for international community’s action in emergency situations is the international humanitarian law of armed conflicts, which regulates behavior of combatants and defines their status, as well as the status of civilians and prisoners. The turning point for defining human rights was the Proclamation of the Universal Declaration of Human Rights by the United Nations General Assembly in 1948.[8] It was an unprecedented act of the states that proclaimed freedom and equality for all. It was a cornerstone for building the human rights systems on the international level. These positions were consolidated by the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights, defining the state’s obligations towards its residents where their right to strike and right to take part in trade union activity were emphasized.[9]

On the European level, The European Convention on Human Rights (ECHR – formally the Convention for the Protection of Human Rights and Fundamental Freedoms) has an important function. It has become a summary of the achievements of the preceding documents in the realm of human rights, in particular due to its mechanisms which can restrict the violation of human rights and sanctioning violations. The ECHR catalog of human rights has constantly been improved in the Supplementary records containing the register of not only state residents’ rights, but also foreign nationals and non-nationals.[10] The important part in the system of preventing human rights violations belongs to the judicial branch, that is the international tribunals and courts.

The process of European integration and the enlargement of European Union has increased its competence in the sphere of civil rights and has influenced the Сharter of Fundamental Rights of the European Union. It is a fundamental compilation of human rights and civil obligations which is based on common values such as dignity, freedom, human equality, consideration of cultural differences and national identities.[11]

The international system of human rights protection would not have survived – without the 1972-1975 Conference on Security and Co-operation in Europe – Organization for Security and Co-operation in Europe (CSCE-OSCE) process dedicated to two issues: security and human rights. It was an ideological confrontation between East and West, the United State of America and the Soviet Union, resulting from different ideological grounds.[12] The absence of analogies to the CSCE process is explained by the fact that before it emerged, the East-West relationships had not included the human rights issue due to the fundamental contradiction of views, doctrines, and practices.

The probability of an armed conflict sidelined a human rights sphere. The years of intense discussions resulted in the signing of the Helsinki Accords, which confirmed the nations’ right to self-determination, defined the duties of mutual collaboration in the humanitarian sphere, and included the respect of human rightsas one of the fundamental principles of international relations. Even though the Helsinki Accords did not spell out the control mechanism for human rights enforcement, it still stated that not only state governments but also NGOs are able to maintain the said control.

The strategic meaning of Нelsinki Аccords lied within the fact that 35 states of the post-war Europe signed a treaty making human rights a part of international relations. The institutionalization of the CSCE process into ОSCE, the availability of permanent departments ensured the implementation of standards for the sphere of human rights. OSCE is thus made into the regional system of international human rights protection. The variety of institutions dealing with human rights protection indicates in international law. Also, there are mechanisms which protect human rights but there are problems with implementation it in the states’ practice.[13] Human security handles such cases. Human security cannot exist isolated from the national security; therefore, it depends on how the state structure is functioning, its legal system, the society and human rights enforcement. These factors influence human activity, their opportunities, development, social integration level, and cooperation with the government.

A threat to the personal security can be perceived in different ways, depending on the country and the cultural traditions, the multiethnicity of the country, its religion, system of social values, quality of life, migration etc. The reason for the sensation of personal security is the conviction that one’s own state and the international community stand guard over human rights and fulfill the duty to protect both persecuted – persons and ethnic groups, and that international law is a guarantee and a tool for achieving such a goal. The threats of the present-day world, such as the aggravation of armed conflicts and terrorism pose a new challenge to the world community.

The role of human security in this situation grows significantly. Human security is personal security of the human being in emergency situations such as armed conflicts, catastrophes, famine, poverty etc., that require aid or intervention from international organizations based on international law.

The segregation of human security as an individual sector began in 1982 at the UN session, when Olaf Palme made a report to the United Nations Disarmament Commission concerning the humanitarian crisis in the Iran-Iraq war. In Ukrainian security studies, the interpretation of human security is slightly different from what is found in the general scientific discourse. It is the state of the sense of security of a person, family, ethnic group, nation, and their ambitions, ideals, values, traditions, culture, opportunities of growth and freedom of choice regardless of the race, gender, language, and religion[14]. It has connected with a series of historical factors that affect the sense of security in Ukrainian society, which is firstly centuries without it is own state, then Soviet government, and, finally, the present war in eastern Ukraine.

The idea of human security in Ukraine is developing in the three following directions: security of physical and mental health; free self-definition of residents, social groups and peoples; security of residents in terms of free choice of development path and the general opportunity to choose one’s own future. All these point towards a peculiar sense of security directly connected to freedom and the expression of one’s will, independence of actions and opportunity of choice[15]. This concept is somewhat similar to the United Nations’ concept of Sustainable Development and is closely linked to humanitarian politics; it is also a so-called ‘mitigating element’ of security. It is worth noting that in Ukraine the ethnic and national security is another element of national security, as several models of national identity coexist at the same time in the state as well as the subsequent threats.

Nowadays, human security is facing a number of challenges. There is poverty as a structural failing, epidemics, human trafficking, various kinds of violence (ethnic violence included), and terrorism. The international community is searching for ways to solve these problems. Quite a large number of sectors are covered by the activities of the different United Nations Commissions such as the UN Human Rights Council, Commission on sustainable Development, the UN Entity for Gender Equality and the Empowerment of Women etc. Furthermore, if the state is willing to ensure its residents’ security, more and more often it has to take action outside its borders, for instance, in the form of various missions. Some threats go far beyond conventional threats, e.g. in the cyberspace. The trends in world politics, armed conflicts and humanitarian intervention strengthened the attempts to solve different problems. It was a basic reason why the United Nations Trust Fund for Human Security (UNTFHS)was founded in 1999 and finances activities carried out by UN organizations; they define human security as a “dynamic and practical policy framework for addressing widespread and cross-cutting threats facing Governments and people” and “all individuals, in particular vulnerable people, are entitled to freedom from fear and freedom from want, with an equal opportunity to enjoy all their rights and fully develop their human potential”[16]. The UNTFHS presents strategic ways to solve different challenges based on the “Human Security Unit Strategic Plan 2014-2017”[17] and creating a new interdisciplinary conception about human security activities and their implementation in the politic life of the international community.

Human security is based on 3 aspects: International Humanitarian Law, Human Rights, and the Responsibility to Protect concept. The international law is a so-called ‘law of nations’, and it is a regulator of international community’s activities.

As for the Responsibility to Protect concept, it embodies the idea of a state’s duty to protect its residents. However, as a matter of practice, it is quite often that countries, especially those of the great powers, do not adhere to international law, which causes humanitarian crises in different parts of the world.[18] The task of human security is to generate efficient law mechanisms that would influence states’ actions. The key questions that human security raises are: how to secure human rights? How and when to exercise the right to use force when solving conflicts? The monopoly of the right to use force belongs to the United Nations Security Council, which is supposed to use it in situations of an extraordinary threat to international peace, and when an act of aggression has been committed. Also, the Security Council can delegate authority to undertake repressive actions to regional institutions (Article 53).[19] The ban on one state proffering threats of using force towards another state is one of the basics of international relations.

Theoretically, the states participating in the international sphere should strive for stability and peace on both the local and international levels, yet, when national interests check into the game, the states declare adherence to the international law on the one hand, but just breach the law on the other hand.

It is necessary to consider the fact that every state has a right to the inviolability of its territory, and the right of self-defense, which is stated in Charter UN (Article 5).[20] A problem arises: in what cases does the international community have the right to interfere with the state’s actions? The answer might be as follows: in cases of aggression towards another state, a threat to international peace, and major violation of human rights. Nonetheless, there are no clearly defined limits for the massiveness of human right violations. It’s undermines the authority of and trust in the international organizations, sets precedents that lead to global consequences in the field of international law.

The Situation in Ukraine

Military conflicts which have not been solved become a threat to human security, and point in practice to a certain weakness of the international organizations.[21] A striking example is Russia’s aggression towards Ukraine, the annexation of Crimea and the war in Donbas that has been in progress since 2014. Avoided to be seems extremely one-sideare few comment of those facts are needed.

The aggression of Russia to Ukraine has two sides – military-political and humanitarian. If we compare the principles of International Law and the actions of Russia as for Ukraine we will see that Russia violated the rights of Ukraine as a sovereign subject of international law, that is the principle of the territorial integrity, they interfered in internal affairs, threatened to apply the power, made the act of aggression against Ukraine, that is applied the power by using the armed forces and annexed the part of the territory (Autonomic Republic of Crimea). According to the United Nation Charter, the principle of sovereignty is a customary international right. The annexation of Crimea by using armed forces is the breaking of rights of international law called ius cogens, that is a direct duty of the UN membership. The actions of Russia Federation in eastern Ukraine are the acts of ordinary aggression. The problem is that the example of Russia can be a negative precedent to other countries which will want to review the established borders. For example, for numerous violations Russia can be dismissed from the UN according to the UN Charter norms (Ch.2, Art.6)[22] Іt is clear that this is breaking of the international law (such as The Budapest Memorandum on Security Assurances,among others 10 articles in Helsinki Accords,a, b,c, d, e, g Article3, UnitedNationResolution № 3314, International Humanitarian Law:

 

TheblockadeoftheportsorcoastsofaStatebythearmedforcesofanotherState)

(“The sending by or on behalf of a State of armed bands, groups, irregulars or mercenaries, which carry out acts of armed force against another State of such gravity as to amount to the acts listed above, or its substantial involvement therein.)Art 3 (G) № 3314[23]

Vladimir Putin, the president of the Russian Federation, manipulated peoples’ right of self-determination and called the annexation of Crimea an act of defending the Russian-speaking residents of the peninsula. He referred to the Responsibility to Protect concept as the ground for the intervention of Russian troops into eastern Ukraine, that is the necessity to defend Russian citizens and Russian-speaking residents. It is clear that this is an absolute breach of international law (among others 10 articles in The Helsinki Accords, The Budapest Memorandum on Security Assurances, The Constitution of Ukraine, The Constitution of Crimea and human rights during the conflict), as the membership of a certain linguistic group does not imply state citizenship. Military actions in Donbas have furthermore led to a humanitarian crisis in the Russian-occupied territories.

The key violations on the part of Russia caused by the war are the annexation of Crimea and the violations of Ukrainian – sovereignty, its borders and territories. In the course of Russian aggression towards Ukraine, major violations of human rights have occurred, the following in particular: forced relocation the residents of Crimea and the eastern part of Ukraine; turning residents into refugees, ethnic discrimination (Ukrainians and Crimean Tatars), linguistic discrimination (Ukrainian-speaking people), illegal eviction, appropriation of property, deliberate warfare against civilians, (which caused numerous victims among them) breach of humanitarian law, torturing Ukrainian military servicemen and prisoners, forced acquisition of Russian citizenship under the threat of punishment, acts of violence, crimes, kidnapping, forced labor, violation of the inviolability of journalists and medical staff.[24][25]

 The list can go further, but even now it points to the large scale of human rights violations. In situations like this, imposing sanctions on Russia is not exactly an efficient means to solve the conflict. The Russian-Ukrainian struggle demonstrates how fragile the international law is and how Russia continuously persists in breaking it. The case of the Russian-Ukrainian conflict has been called ‘the war of the 3rdmillennium’ which aims at destroying mental and cultural identity of the territorial community. It is a new challenge for Ukraine as well as for the entire international community. Russia has subverted the international order, which it had previously promised to protect. It is another evidence of the global failure of both human rights enforcement and human security in general.

The conflict between Ukraine and Russia caused a deficit of humanitarian security. To increase the level of the humanitarian security in Ukraine it is necessary to realize a few aspects. First, these are the new legal documents both at the international and state level. They could regulate the issue of applying the power in crisis situations, the prerogative of which belongs to the United Nations Security Council. With this purpose the international community may not create new but review already existing documents in international law. Second, this is the activity of international and national non-governmental organizations, which task is the monitoring of the current situation in Ukraine and informing the international community, attracting attention to the existing problems. The Red Cross, The Maltese Service and other organizations occupy an important place. They conduct important humanitarian actions and promote international humanitarian cooperation. Third, this is the activity of Ukrainian society in the direction of creating and developing civil society. An active part of Ukrainians realize this idea in the volunteer movement, which we can call without exaggeration the key success after the Revolution of Dignity. Yes, the volunteering movement managed to rise the Ukrainian army to combat level, which had been in the decline at the beginning of the annexation of Crimea, which caused the lack of armed resistance. However, already in August 2014, the potential was renewed and the Ukrainian army achieved combat capability. Nowadays there are several public initiatives: the help of settlers and their families, free juridical consultations, courses of the first aid, tactical medicine etc. In total the volunteering movement for the needs of Ukrainian army has 15 thousand people. Only an improved personal position for every Ukrainian and the rise of the legal culture in the country can be a contribution to the rise of the Ukrainian humanitarian level.

Conclusion

Global security in the world can be ensured by means of the development of each and every country through the supremacy of the law in international relations. Human rights have made the human being the subject of international relations. Enforcement of human rights on all levels such as daily-life level, civilian, and international, is the guarantee of human security and stable legal relations. The means of securing human rights in critical situations are human rights enforcement by the states, the military, by stabilization and peace-support missions, and through a search for mechanisms to the implementation of international law into the practice of states. The increase in the level of legal education in the post-Soviet countries, raising public awareness about the value of human rights is of specifically high importance. In Ukraine, these elements are crucial for democratic reforms and the construction of civil society, and voluntary movements and NGOs do make significant steps towards the achievement of these goals.

References

  1. Buzan B., New Patterns on Global Security in the Twenty-First Century, International Affairs, 67.3, 1991
  2. Falk R., Humanitarian Intervention and Legitimacy Wars. Seeking Peace and Justice in the 21st Century, Routledge, London and New York, 2015
  3. Kuźniar R., Prawa człowieka. Prawo, instytucje, stosunki międzynarodowe, Wydanie trzecie, uzupełnione, Fundacja Studiów Międzynarodowych, Wydawnictwo Naukowe SCHOLAR, Warszawa, 2004
  4. Mero, The Humanization of International Law, Martinus Nijhoff Publisher, The Hague, 2006
  5. Walt S.M.n T., International Relations. One World, Many Theories, Foreign Policy No. 110, Special Edition: Frontiers of Knowledge (Spring 1998), pp. 29-30 (Published by the Slate Group, a Division of the Washington Post Company)
  6. Zięba R., Instytucjonalizacja bezpieczeństwa europejskiego. Koncepcje – struktury – funkcjonowanie, Wydanie czwarte poprawione i rozszerzone, Wydawnictwo Naukowe SCHOLAR, Warszawa, 2004, op.cit.

Internet sources 

The United Nations Documentations

The International Committee of the Red Cross, The Geneva Conventions of 1949 and their Additional Protocols

The International Committee of the Red Cross and Red Crescent Movement

The United Nations, The Universal Declaration of Human Rights (UDHR)

The United Nations Human Rights, The International Covenant on Civil and Political Rights

The Council of Europe, The Convention for the Protection of Human Rights and Fundamental Freedoms

The European Commission, EU Charter of Fundamental Rights

The National Institute for Strategic Studies, The Social Security: Essence and Measurement

The National Institute for Strategic Studies, The Humanitarian National Security Complex

The United Nations Trust Fund for Human Security

The United Nations Trust Fund for Human Security, The Human Security Unit, Strategic Plan 2014-2017

The United Nations Codification Division Publication, Carter of UN, Chapter 8 – Regional arrangements

The United Nations Codification Division Publication, Carter of UN, Chapter 2 – Membership

The United Nations General Assembly Resolution 3314, Definition of Aggression

The Chapter of the United Nations and Statute of the International Court of Justice

The Office of the United Nations High Commissioner for Human Rights, Report on the Human Rights situation in Ukraine 17 August 2014

 

Endnotes

[1] Zięba R., Instytucjonalizacja bezpieczeństwa europejskiego.Koncepcje – struktury – funkcjonowanie, Wydanie czwarte poprawione i rozszerzone, Wydawnictwo Naukowe SCHOLAR, Warszawa, 2004, op.cit.

[2] Walt S.M., International Relations. One World, Many Theories, Foreign Policy No. 110, Special Edition: Frontiers of Knowledge (Spring 1998), pp. 29-30 (Published by the Slate Group, a Division of the Washington Post Company).

[3] Kuźniar R., Bezpieczeństwo w stosunkach międzynarodowychW: E. Haliżak., R. Kuźniar, Stosunki międzynarodowe. Geneza, struktura, dynamika, 2006, p. 143.

[4] “Security is taken to be about the pursuit of freedom from threat and the ability of states and societies to maintain their independent identity and their functional integrity against forces of change, which they see as hostile. The bottom line of security is survival” Buzan B., New Patterns on Global Security in the Twenty-First Century, The Royal Institute of International Affairs, Blackwell Publishing, 67.3, 1991, pp. 432-433.

[5] The United Nations Documentations

[6] The International Committee of the Red Cross, The Geneva Conventions of 1949 and their Additional Protocols

[7] The International Committee of the Red Cross and Red Crescent Movement

[8] The United Nations, The Universal Declaration of Human Rights (UDHR)

[9] The United Nations Human Rights, The International Covenant on Civil and Political Right

[10] The Council of Europe, The Convention for the Protection of Human Rights and Fundamental Freedoms

[11] The European Commission, EU Charter of Fundamental Rights

[12] Kuźniar R., Prawa człowieka. Prawo, instytucje, stosunki międzynarodowe, Wydanie trzecie, uzupełnione, Fundacja Studiów Międzynarodowych, Wydawnictwo Naukowe SCHOLAR, Warszawa, 2004, p. 12

[13] Ibidem, p. 244-245.

[14] The National Institute for Strategic Studies, The Social Security: Essence and Measurement

[15] The National Institute for Strategic Studies, The Humanitarian National Security Complex

[16] United Nations Trust Fund for Human Security

[17] United Nations Trust Fund for Human Security, The Human Security Unit, Strategic Plan 2014-2017

[18] Meron T., The Humanization of International Law, Martinus Nijhoff Publisher, The Hague, 2006

[19] The United Nations Codification Division Publication, Carter of UN, Chapter 8 – Regional arrangements

[20] The United Nations Codification Division Publication, Carter of UN, Chapter 2 – Membership

[21] Falk R., Humanitarian Intervention and Legitimacy Wars. Seeking Peace and Justice in the 21st Century, Routledge, London and New York, 2015

[22] The United Nations General Assembly Resolution 3314, Definition of Aggression

[23] The Chapter of the United Nations and Statute of the International Court of Justice

[24] The Office of the United Nations High Commissioner for Human Rights, Report on the Human Rights situation in Ukraine 17 August 2014

[25]The Guardian, Ukraine: kidnapped observers paraded by pro-Russian gunman in Slavyansk

Democracy, Human Rights and the UN-Human Rights-Based Approach

Introduction

Democracy and human rights are universal aspirations and ideals which governments that claim to be legitimate should always respect. This is why the United Nations and its members commemorate December 10 as Human Rights Day and September 15 as the International Day of Democracy. While both are considered by the UN as “interdependent and mutually reinforcing”[1], they are also the subject of controversies which are complex, multi-faceted and politically sensitive.

There are scholars who feel that the emergence of the international regime of human rights, linking human rights to democracy, has weakened the pre-existing ideological divide by conditioning governance to the requirements of human rights. This has been the case especially since the UN developed the Human Rights-Based Approach (hereafter HRBA), urging member-states to use this approach in the pursuit of political goals, such as development and good governance. Scholars who used to stubbornly defend this or that ideological school of thinking are now prepared to be flexible and accept the validity of human rights which were not tolerated traditionally by their ideological camps, such as the rights to health or education and minority rights. However, many others have remained in their ideological barracks, criticizing or belittling the UN approach to human rights and democracy because it deviates from their ideological orthodoxy.  These scholars may never surrender until and unless the contours of international human rights law are perfectly aligned to their own ideological doctrines.

Many other scholars have preferred to watch from the sidelines as HRBA takes root. Their silence has created a wide gap in the academic literature where contributions are most needed. Academic contributions on HRBA which come after it is fully developed will still be welcome, especially for those interested in history. However, timely commentaries can make valuable contributions to debates around the direction democracy and human rights are taking. It is bearing this in mind that this contribution is made.

The importance of this subject-matter hardly needs explaining. In 1998 the UN adopted the Declaration on Human Rights Defenders, encouraging the promotion of human rights awareness, and affirming the rights of individuals to be concerned with human rights and to claim their rights. In effect, this instrument lays the foundations for the measurement of democracy based on application of the HRBA from below. In response to this, and in the interest of critically assessing the broader political implications of this approach, the academic world should share its intellectual insights rather than lagging behind. Scholars should feel free to express their own views, including those which further particular economic, social and political interests. This is, in fact, what most of them do, defending their respective beliefs in the name of justice, even though their conclusions are hardly reconcilable. Still, it is better for scholars to make contributions, rather than leaving questions relating to human rights and democracy to be shaped by political actors to meet their needs.

At the core of the debate on the discourse on human rights and democracy is the question of who the human being (the self) really is and how s/he relates to or should relate to society and the state. The philosophers who previously devoted their lives and emerged to answering these questions now rest in peace, after agreeing to disagree with one other, leaving their followers intellectually restless. The ideological camps that have gradually emerged are not only numerous, but also tolerant of multiple interpretations, thereby blurring the landscape. This is why we see all kinds of shades of opinion within liberalism or neo-liberalism, Marxism or neo-Marxism, Social Democracy, Communitarianism etc. Less colorful, more focused and relevant to the real political world is the approach used by global political organizations, such as the UN. Their positions are widely accepted for the simple reason that they are products of a broader political consensus, which accommodates the diverse views of experts from different fields.

What makes the UN approach legitimate is the existence of a legal mandate to promote human rights as stipulated by paragraph 3 of article 1 paragraph 3 of its Charter. Using this mandate, this organization has adopted a long and impressive list of international human rights instruments which have been widely ratified by its member-states. The contents of some of these human rights instruments concern democracy, directly or indirectly, as will be shown later. The compliance by state with the undertakings assumed under these international instruments is monitored by a number of international bodies using a range of different methods, for example by considering reports and petitions received, or by tracking the progress mad. Obviously, there is a long way to go before this international regime of human rights achieves its goals. However, no one can seriously question that the UN has reached a milestone by developing this international regime, thereby making the world a more humane place than before.

When it comes to the promotion of democracy, per se, the contributions of the UN are often belittled by those who are displeased by the apparent neglect of the views of their own ideological camp. In fact, much was achieved, especially considering that the organization was prevented during the pre-Cold War period from engaging in what was deemed to fall under the domestic jurisdiction of states by paragraph 7 of article 2 of its own Charter. It is also important to remember that there was no consensus around which political system served democracy best. Was it that of the U.S. in the 1950s, which excluded blacks and women from political participation? Or the Swiss confederal model, which did not permit women to vote until the 1970s? Or that of the socialist states in the Eastern bloc, which disregarded political rights?

Leaving this aside, the UN has played a crucial role in developing the rights of peoples, by elaborating the contents of these rights, e.g. the rights to self-determination, social progress and to development. These clarifications were significant for democracy since they concern both peoples (the demos) and good governance (the kratia). This approach addressed democracy head-on, and not only from a theoretical perspective. Decolonization was advanced by applying the Charter principle on the right of peoples to self-determination. The system of Apartheid in South Africa was confronted. Arbitrary usurpation of power was denounced in many countries, and the UN began to monitor elections in post-conflict situations or where there were serious political disputes. The support which it gave and still gives to the promotion of gender mainstreaming, empowerment and participatory rights also concern democracy.

The collapse of the Socialist regimes in the former USSR and its Eastern European allies, who were the staunchest defenders of state sovereignty, removed one of the most serious hurdles to the promotion of democracy. The UN capitalized on this political development to raise the banner of democracy, which gained prominence on its agendas. The 1993 Vienna Declaration of Human Rights made abundantly clear that “(t)he international community should support the strengthening and promoting of democracy, development and respect for human rights and fundamental freedoms in the entire world.”[2] This document linked democracy to “the freely expressed will of the people to determine their own political, economic, social and cultural systems and their full participation in all aspects of their lives.”[3] Within a decade or so, HRBA was developed. Initially, this approach was recommended as a tool for application in the promotion of economic development. However, gradually its use was extended to other areas, for example, to health, child welfare, gender mainstreaming etc. Although the UN maintains that it does not advocate a single model of democracy[4], one can wonder if the HRBA which it uses is not one such model, since it promotes a bottom up approach to politically sensitive questions including the question of what constitute sound governance.[5]

Proceeding from the above, this study examines the road map used by the UN in developing and promoting human rights and democracy, and how it urges its members to conduct themselves by applying HRBA. The questions which guide this study are clear-cut. Is there a UN perception of democracy? If so, what is the position of this organization regarding the contested ideological positions concerning who the individual self is, and how this person relates or should relate to society and the state? Has the UN’s position discredited or sanctioned the views of this or that ideological school of thought? What are the consequences of relying on HRBA to promote democracy? Will this reliance promote democracy in form, as well as, in substance? Will it empower the victims of oppression and marginalization, thereby ending despotism, oppression and bad governance once and for all? What are the wider political consequences and implications of using this bottom-up approach? Will it lead to the fragmentation of multi-ethic and multi-national states by making them ungovernable when the voices of the marginalized are heard? Will states reject HRBA because of fears that it will lead to the destabilization of their governments?

Since there are conflicting viewpoints concerning how democracy should be perceived and applied, this paper will not rely on a particular hypothesis or theory to guide this study. What is attempted is to explore the roadmap used by the UN and where the UN is heading. This requires relying on the materials used by this and other international organizations, by using the inductive approach.This is also why the answers to most of the questions posed above appear to be obvious from how the provisions of the different international human rights instrument have been formulated. However, before examining these documents and the UN approach to democracy, it is necessary the ideological controversies surrounding the concept, and how it evolved historically. Only then will one be able to judge the extent to which the UN followed its stated approach, based on the promotion of human rights.

Conceptual Clarification 

Democracy, as was pointed out earlier, is praised and aspired to across the globe while at the same time being controversial. This is one reason why varied forms of democracies are found, whose goals and activities are often at odds with one another. Take, for example, ‘the Western model’, which is known as liberal democracy. This model is supposed to guarantee individual political rights (freedom of expression, association and assembly), universal suffrage, a free media, and the multi-party parliamentarian model of governance based on the division of power (with checks and balances). However, the systems of governance in Italy, France, the United States and Denmark are far from being the same. The model that has been adopted in some of the Eastern European states, such as Hungary and Poland, is criticized and referred to illiberal democracy, ‘low intensity’ or ‘empty’ democracy because there are restrictions on individual civil liberties and the free media. If the attack on the media makes democracy illiberal then the U.S. is also heading in this direction since President Trump regards the media as the enemy of the people, except for a few extreme right-wing media outlets. Before the demise of the Socialist order in Eastern Europe and USSR the labels most commonly used by the Soviet bloc countries were proletarian democracy or people’s democracy. In the Nordic countries the phrase social democracy is used to describe their welfare system, which is financed through higher taxation.

Even within a single country, we can see the bewildering variety of ways the word democracy is used. Sweden, for example, was governed during the last few years by a coalition led by the Swedish Social Democrats. The opposition camp included the Christian Democrats and the Swedish Democrats. Although the Swedish Democrats are supported by about 17% of the electorate, the party has been ostracized by all the political parties because of its racist roots. Adding more confusion to this, scenario, a new political party called simply The Democrats has just come to prominence in the Gothenburg region by securing 17% of votes in municipal elections. All this may well make Swedish citizens wonder who the true democrats are.

Dictionaries define democracy in a variety of way, reflecting the divergent ways the term is understood in the real political world. Dictionaries that fail to do this or that tell only one side of this perplexing story run the risk of being criticized for being ideologically biased. This is why we find this term defined in different ways, reflecting the political mess in the real world. According to dictionary.com (Thesaurus), it can mean “a form of government in which the supreme power is vested in the people and exercised directly by them or by their elected agents under a free electoral system” or “a state of society characterized by formal equality of rights and privileges.”[6] Cambridge Dictionary re-affirms this and underscores further the importance attached to the expression of opinions and that government should be elected.[7] Likewise, in Merriam-Webster we read that this term describes a system of “government in which the supreme power is vested in the people and exercised by them directly or indirectly through a system of representation usually involving periodically held free elections.”[8]

These and other similar broad and varied definitions of democracy raise more questions than they answer. Does this term mean self-rule by the people collectively, as a group, where all the members of the community have equal voice and are the beneficiaries of this rule? Or does it mean majority rule? Does it require nothing more than the presence of political institutions that allow the electoral system to function and ‘formal’ equality? For example, does the fact that the political system restricts voting rights to men only or to certain racial groups mean that there is no democracy? What about if the country does not respond to the needs of the people, e.g., by denying people economic and social rights? Should the political system promote real equality and a fair distribution of resources? Because these questions are answered in so many different ways Susan Marks correctly remarked that that“democracy appeared to mean everything, and therefore nothing.”[9]

One way of understanding democracy would be to examine the toot of the word itself, i.e. ‘dēmo’’, which means ‘people’, and ‘kratia’, meaning authority or rule, in Greek.[10] When juxtaposed these two words convey the idea that the inhabitant of a territory govern themselves by exercising political power or have a say in the affairs of governance. Ancient Greek cities, such as Athens and Sparta, are believed to have practiced dēmokratia.  Aristotle listed many other examples when he wrote:

At Marseilles the oligarchy became more constitutional, while at Istrus it ended in becoming democracy, and in Heraclea the government passed from a smaller number to six hundred. At Cnidus also there was a revolution… Another case was at Erythrea, where at the time of the oligarchy of Basilidae in ancient days, although the person of the government directed affairs well, nevertheless the common people were resentful because they were governed by a few, and brought about a revolution of the constitution”.[11]

Over the years, these experiences of the Greek city-states inspired many political communities to emulate them. In the late 18th century, the American and French Revolutions raised the banner of democracy with the aim of ending despotism and replacing it with a democratic system. What distinguished their experiences from those of the ancient Greeks were the justifications used to legitimize the political system and the structures that were created to ensure its continuity, e.g., through a system of division of powers, the codification of right and respect for the rule of law. The American Declaration of Independence sets out what are claimed to be ‘self-evident’ truths by underscoring the belief:

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. — That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed.”[12]

When the French revolutionaries brought to an end the despotic feudal regime of the House of Bourbon, they proclaimed in their Declaration on the Rights of Man and the Citizens that “men are born and remain free and equal in rights” and that the goals of political association should be “the preservation of the natural and imprescriptible rights of man”.[13] Subsequent constitutions of the French Republics included a commitment to respect the principle of “government of the people, by the people and for the people.”[14]

Like the proponents of democracy in ancient Greece, the American and French revolutionaries claimed to have empowered the people by giving them self-rule. Unfortunately, this is often misinterpreted as meaning the total empowerment of all members of the political community (the people), so that they become the full beneficiaries of the political system. This is far from true. The democratic experiments in Istrus, Heraclea, Cnidus, Erythrea and Basilidae, which Aristotle wrote about, did not permit all the members of these communities to participate in the political process (children, women and slaves, for examples, were excluded).[15] In fact, Aristotle clearly stated that some people were slaves by nature, and lacked the necessary capacity to rule, and therefore it was advantageous for them to be ruled by the free people. Despite this obvious exclusion from power, the political system was called democracy, apparently because it was expected that those who were empowered by the system would promote the interests of the community as a whole, e.g. by sharing what the system has given them.

One can draw a parallel with the democracy which was promised by the American and French Revolutionaries at the end of the 18th century. The ‘American people’ emerged as a legally and politically constituted entity and were promised a democratic order. Yet those who held power were ‘white men’. Before slavery was abolished in the 1880s black slaves were deemed to be the property of their white owners. Many of the celebrated fathers of the American Revolution and democracy, such as George Washington and Thomas Jefferson, were themselves slave-owners. White women too were marginalized and excluded from positions of power until the mid-1960s. Even the American Indians that had treaty relations with the United States were disempowered for years, despite the fact that they were formally acknowledged as ‘domestic sovereign entities’.

The French Republics which were established following the French Revolution also failed to deliver the democracy that had been promised, until after World War II. The ‘French people’ was recognized as a single political entity but power was in the hands of French white men. Although the 1879 French Declaration recognized ‘the rights of man’, the French slaves and the colonial peoples remained excluded from power despite being regarded legally as members of the French community.

‘People’ (‘dēmo’’) and its ‘Authority’ (‘kratia’). Without knowing who ‘the people’ is and what is the nature of its authority, it is difficult to know what democracy means. Is this people composed of all the persons that are present in the country, including foreign residents and tourists, or only the citizens (wherever they may be), or selected categories of citizens (e.g. only men)? Is the power or authority of this people simply to choose who should rule, regardless of whether the chosen ruler is a tyrant or one who responds to the wishes and needs of the governed? In other words, does democracy empower the people to rule itself through elected representatives who can be removed if they fail to respond to what the electorate wants and expects?

The term ‘people’, in everyday usage, describes a collection of individuals. The term is commonly used to describe a particular social group by combining it with a social, territorial other factor.[16] Examples of this include the description of those inhabiting particular territory, as ‘Hill People’, those living in the countryside, as ‘rural people’, those who speak the same language as the ‘French-speaking people’ or the ‘Arabic-speaking people’ (the whole north Africa), or those who profess the same religion, as ‘the Jewish people’ Whichever classification is used, the term ‘people’ groups together large number of individuals as a an entity sharing particular characteristics.

When used in the technical sense for legal or political purposes, ‘people’ identifies a legally organized political community. The glue which unifies the individuals as an entity here is not necessarily a common language or religion or territory, but a political and/or legal identity. This means while people in a society can be divided according to the languages they speak, the religions they profess and the territories they inhabit, legally they constitute one entity. Examples of this include references that are made to “the American people”, “the German people”, “the Swiss people” or “the French people”. The French-speaking “people’ is not the same as “the French people” since the former embraces French speakers in parts of Belgium, Switzerland and Canada. “German-speaking people” is broader than the “German people” because the German language is spoken Germany, Austria and parts of Switzerland.

Appreciating this distinction, dictionaries acknowledge that the word ‘people’ also means “a political community”[17] or “any consolidated political body”[18] or “the entire body of those citizens of a state or nation who are invested with political power for political purposes.”[19] Likewise, philosophers, jurists, political scientists, and other scholars also use ‘people’ as a code word, to mean  a “body of the citizens”[20] or “a public family or nation (gens, natio) whose members are all related to each other as citizens of the state”[21], or simply as ‘the “aggregate of individuals of both sexes who live together as a community in spite of the fact that they may belong to different races or creeds, or of different colour.”[22] Not surprisingly, we see the plural form of this term in use as “peoples”, as stated in paragraph 2 of article 1 of the UN Charter which deals with the self-determination of peoples.

Understood in this unique technical sense, a people can be very young, e.g. “the people of South Sudan” which came into existence eight years ago, or over three hundred years old, like “the American people” which dates from in 1776. Two distinct peoples can merge, example as the East and West German peoples did following the fall of the Berlin Wall, and one people can split into two or more new political communities, as occurred in Yugoslavia and the USSR. Again, a people can also exist for well over a thousand years. The fact that no human being can live that long makes no difference. Grotius clarified the distinction that should be borne in mind between the lives of these kinds of imagined political communities and those of their members by stating the following.

(I)n comparing a river to a people, Aristotle said that rivers bear the same name, though different water is always replacing that which is flowing on. Again, it is not an empty name merely that remains, but ‘the essential bond’, which Conon defines as an ‘inherent bodily character’, Philo as a ‘spiritual bond’, and the Latins as a spirit.”[23]

If the existence of a people as a political community is not indisputable, a question which follows from this is how can this people govern itself as suggested by the term democracy? Does this necessarily mean that the voice and interests of all the members of this political community should count? Responding to this question, John Mills wrote:

The ‘people’ who exercise the power are not always the same people with those over whom it is exercised … The will of the people, moreover, practically means the will of the most numerous or the most active part of the people; the majority, or those who succeed in making themselves accepted as the majority…[24]

This honest statement exposes the hypocrisy surrounding those who brag about behaving in accordance with the principles of democracy. If democracy is the rule of the people as a whole, government which responds to the interests of a minority or a majority cannot be democratic. To argue otherwise is false or, in everyday language, a lie.

Governance. If the term people (the demo) in democracy relates to an organized socio-political entity, what is its authority or rule (‘kratia’) when speaking of democracy? There are two ways of seeing this. One is to say that if sovereignty belongs to the people, power can only be delegated to the government. This means that the governmental authorities are mandated to serve as representatives, to act by responding continuously and transparently to the wishes and interests of the people. The other interpretation reduces democracy to the means of legitimizing the government. Once the people has chosen the government those elected should represent the state by exercising the sovereignty of the state. They can do this by promoting the interests of the majority or of a minority or minorities or those of the whole people as they see fit. Until its period in power is over, the government in charge does not have to step down just because there are people that are not pleased by how the country is governed. Whichever stance one takes, it is difficult to avoid ideologically charged questions regarding the rights of the members of the political community, and the justifications for these rights. While a deeper discussion of this topic is beyond the scope of this contribution, it would be a mistake to ignore it altogether in any discussion of democracy and human rights.

 The Discourse on Human Rights and Democracy

The debate on human rights and democracy is very old, complex and linked to the kinds of political interests which deserve to be protected. The main aim here is not to attempt to disentangle all the thorny but merely to highlight the dominant positions as a backdrop for an examination of where international human rights law stands on this matter. The two most contested issues relate to (i) what is meant by ‘the will of the people’ and ‘the government of the people’ when speaking of democracy; and (ii) how individuals relate to this ‘people’, and the state. These questions cannot be answered without opening up a Pandora’s Box of many other controversial questions. For the purpose of this paper, the debate can be narrowed down to one between the individualist and collectivist approach to rights. What are the justifications for the rights of individuals, what limitations are or should be imposed on them, and how do they apply to individual as member of broader social groups inside political communities? Defenders of the rights and interests of the community maintain that since individuals are product of their communities their rights and freedoms should be subordinated to the rights, interests and needs of their communities. Most individualists reject this position and question the very existence of the community or society as a separate entity that is more than the sum of its members.

Whichever stance one takes (individualist or collectivist) in order to defend democracy, there is no escape from the requirement to justify why rights should be recognized in the first place. In other words, what are the foundations for the rights which are used as the bricks for building and sustaining the desired form of democracy? Defenders of Natural Law, positivism and other sources of rights have wrestled with this question, which brings to the surface seemingly intractable questions regarding the nature of the human being. Are humans social, humane and rationale, or self-centered, autonomous and evil beings, who should be tamed to conform to social requirements? Can democracy co-exist with individualism? Should the majority impose its will over the rest in the name of democracy? Is democracy merely the presence of a social contract whereby the governed choose who should rule? Should the governed have a say on how the government rules? These questions have been answered differently by scholars.

The theory of social contract has been advanced by different philosophers in the interests of the governed, even though the way it is formulated has varied considerably. Thomas Hobbes (1588-1679) used this theory to legitimize the rulers and the suppression of ‘natural rights’. He was praised for having recognized the ‘existence’ of natural rights which entitle the individual to defend his life and interests on the basis of his own judgment.[25] However, because the exercise of these rights leads to “war of all against all” (Bellum omnium contra omnes) Hobbes called for their renunciation in the interest of the common good. This was justified because we are not social(like bees) but individualistic, egocentric, jealous, evil beings who constantly struggle for power and dominance.[26] This being the state of nature, the only way out from the ‘war of all against all’ is for people to surrender their natural rights by choosing the ruler (a king or an assembly) who governs by suppressing natural rights in the interest of peace and the common good. If the ruler fails to achieve this, the people should choose a different ruler.[27]

This Hobbesian formula advocates a government which is chosen by the people and for the people but is notof the people. The idea of social contract is used merely to legitimize the government and to disempower the governed in the conduct of the political affairs of the community. In other words, this is not democracy in substance. The despots of that time ridiculed Hobbes’s recognition of natural rights and the idea of a social contract, whereby people would be free to choose and change who ruled them. However, they liked his endorsement of despotism, which is why Hobbes earned the title of apologist for tyranny.

Like Hobbes, John Locke (1632-1704) and Immanuel Kant (1724-1804) recognized natural rights and supported the idea of a social contract theory. However, they did not use it to justify despotic form of governance. Both rejected Hobbes’ negative view of the ‘state of nature’ of mankind. According to Locke, ‘the war of all against all’ that Hobbes wrote about arises not from the evil nature of mankind but from disregard for the Law of Nature.[28] It was this unfortunate condition which led to the need for civil government in the first place, i.e., as a “remedy for the inconveniences of the state of Nature”.[29] The purposes of civil societies should therefore be to preserve the natural rights of the citizens, such as life, liberty and property.[30] When a government fails to protect these natural rights, the people should be able to remove and change it.

Immanuel Kant also dismissed Hobbes’s negative view of the state of nature and the notion of war of all against all “as if there could have been no other relation originally among men but what was merely determined by force…”[31] The goals of establishing civil union should not be to ensure the destruction of natural rights but to strengthen them “by laws of right.”[32] The Kantian formula of social contract for governance asserts “the right of every citizen to have to obey no other law than that to which he has given his consent or approval …civil equality… (and) … the right to owe (one’s) existence and continuance in society not to the arbitrary will of another, but to his own rights and powers as a member of the commonwealth…”[33] These thoughts of Locke and Kant were highly praised by many, especially by liberals and libertarians, who later used them to justify the establishment of a democratic political order which strengthens individual rights and limits to the powers of the government.

Jean Jacques Rousseau (1712-1778), who lived during the same period as John Locke, also defended both natural rights and the principle of social contract. “The people, being subject to the laws, ought to be their authors,” he wrote, “the conditions of the society ought to be regulated solely by those who came together to form it.”[34] He too dismissed the negative picture of the state of nature which Hobbes had painted. According to him, social life promotes morality and the values of humanity even if it is not always easy to suppress individual selfishness and anti-social behaviors. The individual should not be allowed to undermine the interests of the broader community. Individual rights and freedoms should be subordinated to those of the community. As he puts it, “whoever refuses to obey the general will shall be compelled to do so by the whole body. This means nothing less than that he will be forced to be free”[35] This earned him the title ‘Communitarian’.

For Karl Marx (1818-1883), the human being is a social being whose vital expression is nothing but “an expression and confirmation of social life.”[36] By nature, man was not evil, as Hobbes maintained, but is good and social. However, men had been poisoned by the system of private property, which had reduced each individual to nothing more than a ‘representative of property’. Human essence exists only when there is existence for one another “as the vital element of human reality”.[37] This kind of social existence makes society“the perfected unity in essence of man with nature” or “the realized humanism of nature”[38], rather than something dissociated from individuals that comprise it. Marx argued that the social contacts proposed by the writers such as Hobbes, Locke, Kant and Rousseau cannot resolve the political problems and conflicts arising from social relations based on the appropriation of private property. The ‘war of all against all’, which Hobbes wrote about, was the class war.

Karl Marx dismissed some of the French and American revolutionary slogans, such as, liberty, security, freedom, and equality, as both empty words and deceptive. These ideals cannot be realized in a political community which relies on private property. As he argued:

The liberty we are here dealing with is that of man as an isolated monad who is withdrawn into himself. The right of man to freedom is not based on the association of man with man but rather on the separation of man from man… The concept of security does not enable civil society to rise above its egoism…[39]

The “rights of man” which the philosophers of the late 18th century defended were denounced by Marx because they protect the selfish interests of the bourgeoisie and tear human beings apart from their communities. Even if they appear appealing in theory, “not one of the so-called rights of man goes beyond egoistic man, man as a member of civil society, namely an individual withdrawn into himself, his private interests and his private desires and separate from the community.”[40]

The electoral systems established after the French and American Revolutions were belittled by Karl Marx. In his opinion, the deputies that were elected could only serve as a rubber stamp for advancing the ‘particular’ class interests of the ruling class.[41] It was impossible for the deputies to act otherwise since “the politeness ceases as soon as privilege is menaced.”[42] Still, unlike his ideological colleague, Engels, he did attach some value to the electoral system to the extent that the workers could exploit it to speed up the demise of the political system.[43] However, in his view, emancipation of the oppressed class could only be achieved by transforming “the affairs of the state into the affairs of the people”.[44] This means nothing less than dissolving the old society by overthrowing the ruling class “on which rested the power of the sovereign, the political system as estranged from the people. The political resolution is the resolution of civil society.”[45] Besides encouraging the proletarian class to rise up to this end, Marx and his ideological compatriots and followers (F. Engels and V. I. Lenin) also supported, as legitimate, the struggle of historically constituted sociological nations to secede from oppressor nations and to establish proletariat nations.[46]

The flood of literature which is inspired by the above-mentioned thinkers and others before and after them is often categorized under various schools of thinking, such as Marxist and Neo-Marxist, liberal and Neo-Liberal, Libertarian, Communitarian, traditionalist and many others. Although writers sometimes resent being compartmentalized in this way, these labels will be employed in this study as they are used in the general literature to make it easier to understand who belongs to which position in the debate relating to human rights and democracy.

Liberals and libertarians are the champions of individual rights and freedoms and question the legitimacy of collective and group rights. The latter are defended by Communitarians, socialists and social democrats. Having said this, care should be taken to avoid generalizations, since we find various shades of thoughts within each school of thought. This is why it is important to examine the formulations used by each writer before passing judgment on the democratic formulas defended by each school of thought. Having said this, for purposes of simplifying this complex debate this paper has chosen to divide them between two camps, namely those who defend normative individualism and those who are behind collectivism.

The thought of Ayn Rand, one of the most celebrated libertarians, can be used as an example of how most of the defenders of normative individualism think.  For Rand, the best political system to live under is “a full, pure, uncontrolled, unregulated laissez-faire capitalism.”[47] This is because the system protects individualism by stimulating the pursuit of the selfish interests which she valued so highly. She rejected the existence of collective entities, including “– society,’ since society is only a number of individual men”.[48] She despised collective morality, such as solidarity and altruism because they lead to “renunciation, resignation, self-denial, and every other form of suffering, including self-destruction”[49] and ultimately bring “the morality of death.”[50] Put bluntly, “if civilization is to survive,” she wrote, “it is the altruist morality that men have to reject”.[51] Instead of ‘public morality’ she believed in the merits of individual morality, to be used as “the means of subordinating society to moral law”.[52]

Rand maintained that the sources of these kinds of individual rights, liberties and freedoms “is not divine law or congressional law, but the law of identity.”[53] Rights, for her, represented “the property of an individual” and “society as such has no rights”, thus “the only moral purpose of a government is the protection of individual rights”.[54] She was well aware of the claims of those who regarded themselves as collective entities and who were demanding rights or protection but rejected their claims. “A group, as such, has no right”, she wrote, and individuals who claim to exist as collective entities are nothing “but a gang or a mob”.[55]

This rejection of community led Rand to question the role of government in promoting the wider interests of the society or in protecting marginalized groups. This was in part because this protection requires using revenues that are derived from taxing others (which she called ‘robbery’). She strongly rejected the use of tax revenues to provide benefits under the pretext of promoting the right to work, health services and standards of living. As far as she was concerned:

“There is no such thing as ‘a right to a job’ …(but) a man’s right to take a job if another man chooses to hire him. There is no ‘right to a home’.. ‘rights’ of special groups … There are only the Rights of Man.”[56]

For her, the only legitimate rights were individual, civil and political rights, with the exception of property rights which are “man’s only ‘economic rights’”, and the only rights that deserve to be called political rights.[57] Leaving this aside, there are “no ‘economic rights’, no ‘collective rights,’ no ‘public-interest rights’.”[58]

Liberals[59], like libertarians, applaud normative individualism because it protects the rights of the individual by disregarding the collective needs of the members of the community. This is justified on the grounds that the individual is “the primary normative unit” of society and the state. Jack Donnelly, for instance, remains convinced “that only individuals can have human rights” and therefore opposes group rights.[60] According to him, society and the state are constructed by individuals for the promotion of their interests. “Human rights are morally prior to and superior to society and the state,” and can only belong to individuals “who hold them and may exercise them against the state in extreme cases.”[61] Donnelly accepts that the individual “is a social animal”, whose personality and potentials are “developed and expressed only in a social context”, which is why society discharges “certain political functions” through its political organization (the State).[62] Because of this, individuals do have duties towards society.[63] However, when tension emerges between the interests of the society and its individual members, the conflict should always be resolved by giving priority to the wishes interests of the latter. “For the liberal,” wrote Donnelly, “the individual is not merely separable from the community and social roles but specially valued precisely as a distinctive, discrete individual – which is why each person must be treated with equal concern and respect.”[64] This distinctive existence, according to Donnelly, legitimizes the rights of the individual to enjoy the “liberty to choose and pursue one’s own life”, including by exercising those familiar civil and political rights known as “rights of man”.[65] This reduces democracy to a form, which is an end in itself, i.e. for legitimizing government, rather being self-government by the people for the welfare of the community, including marginalized social groups etc. “The democratic component of liberal democracy”, stated Susan Mark, “comes to revolve, principally, around elections.”[66]

There are Liberals who seek to give democracy substantive meaning by accepting the importance of promoting some collective interests of the community. Donnelly, for example, refers to the legitimacy of economic and social rights, such as the rights to food, health care and social insurance, and hence the role of the “society” in providing basic services such as “health care or universal material benefits”.[67] This, according to him, also distinguishes him from John Locke, whom he criticized for failing to address key development issues.[68] The democratic formula which Donnelly supports therefore responds not only to the rights of the individual, but also to a certain extent to the needs of the community in the interest of justice.[69]

Will Kymlicka also moves the compass of liberalism closer to what matters for the marginalized and the common good. To defend this within the framework of liberalism he focuses on “a liberal theory of community and culture”.[70] As he sees it, membership of cultural groups “gives rise to legitimate claims, and some schemes of minority rights respond to these claims”.[71] According to him, protection of individual rights should not be perceived as necessarily leading to confrontation or tension within society. The members of the community are, after all, not separated from their groups since there are ‘bonds of mutual respect” which motivate individual members to act responsibly and to “successfully pursue their understandings of the good.”[72] This is how different groups of people have always co-existed and how they freely pursue “their shared communal and cultural ends, without penalizing or marginalizing those groups who have different and perhaps conflicting goals.”[73] This approach brings normative individualism closer to the concern to aspects of the interests of the community and thereby to the acknowledgement of the roles of government to promote these needs. However, this does not go far enough to the recognition of collective life or groups. “The language of rights has to be used with great care when is applied to groups”.[74] Those who endorse this middle-of-the-road approach are often called ‘Social Liberal’.

Communitarians are not shy when it comes to defending communities, their interests and the role of governments in this regard. They dismiss Liberalism as a misleading ideology because it distorts who the self is and how social relations work. Michael Walzer calls this ideology an ‘incoherent’ and “a self-subverting doctrine” which cannot be reconciled with reality. The reality which Communitarians recognize manifests the presence of social bonds, values and loyalty to family, relatives, neighbors, friends and co-workers. Liberalism, according to Walzer, denies all this as if the individual exists in a vacuum and as if there is no community, no Jews, blacks, Catholics, religious organizations, etc.[75] Brian Lee Crowley relegates Liberalism to the sphere of an intellectual exercise that is in conflict with the real world.[76] According to him the self is shaped by social forces, i.e., the community, language, culture, history etc. These social forces enrich the self, endowing it both with morality and roles and responsibilities. He dismisses the Liberal’s ‘universal’ self as a one dimensional ‘faceless’ being who resembles a shadow, or even an inanimate object.[77] “The liberal social order”, he states, “finds its justification in a realm of abstraction quite separate from the concrete and contingent.”[78]

The self emerges in the real world, according to Crowley, from a social context, as a byproduct of complex processes of nurturing, training, relationships and attachment. These relationships “are partly constitutive of who we are, and to that extent our reflection on, and reasoning about, that part of our deeper self will entail the ‘coming to self-awareness of an intersubjective being’, whose boundaries transcend those of the individuals it comprises.”[79]

This contextual self-awareness comes with social roles and social responsibilities which are linked to religious, cultural, national, professional and other requirements. Compliance with these expectations is not perceived by the self as something that is done for ‘others’, but for ‘us’, and hence for ‘me’ since the self is gratified by what it discharges for ‘us’ and is aware of the reciprocal services. The fusion between ‘me’ and ‘us’ is best explained by what MacIntyre calls ‘our moral particularity’, which derives from our particular social identity. This is why when the individual describes himself he brings others in the picture by stating:

I am someone’s son or daughter, someone else’s cousin or uncle; I am a citizen of this or that city, a member of this or that guild or profession; I belong to this clan, that tribe, this nation. Hence what is good for me has to be the good for one who inhabits these roles. As such, I inherit from the past of my family, my city, my tribe, my nation, a variety of debts, inheritances, rightful expectations and obligations.”[80]

This description reflects ways of life that still exist in many developing countries. Here, individuals are often identified as “son of x or y” or as ‘the person from this or that community or village”. Even in the Western countries this survives in family names, such as Abrahamson or Johansson, meaning son of Abraham or Johan, or Kristbjörnsdóttir, meaning the daughter of Kristbjörn. These kinds of identifications used to bestow social benefits or disadvantages depending on the reputation of the person or family whose name is used. This approach to the understanding of the selfreveals the interactive and reflective nature of the individual. It shows that the individual is not as isolated and independent as s/he appears from the outside but “a being emerging out of a dense social ground” with fluid character, “rough edges and ill-defined boundaries.”[81]

The Discourse on Human Rights and Democracy: Conclusion 

The conflicting approaches used to the understanding of the nature of the human being (the self) and how s/he relates (or ought to relate) to society and the state, have led scholars to endorse varied forms of government. Of these, democracy is clearly the most favored system. However, how democracy should be understood concretely and applied in practice remains a puzzle because the point of departure for deciding how society should be organized differs depending on how the human being is perceived. That democracy should permit people to choose their government is not in dispute. The dividing line is on what kinds of rights, freedoms and obligations the individual should have and how these should be aligned to the interests of community.

The nature of the human being (the self), as understood in the Hobbesian, Libertarian and Liberal sense, is at odds with social reality outside the Western world. Except in times of hardship, such as, during periods of war, political chaos or confinement (in jails or hospitals), the human being in this part of the world is social. S/he is a by-product of community life, inter-dependent and bonded with the other members of his/her community and motivated to maintain this state of affairs. Even in times of extreme poverty or economic deprivation, which tests the limits of human loyalty, individuals remain attached to one another emotionally, socially and in many other ways.

Although the political models of governance recommended by Hobbes, Libertarians and Liberals are different, they are united in their affirmation of the individualistic nature of the human being. Where the latter two currents of thought differ from Hobbes is in their rejection of his characterization of human beings as evil by nature. They, therefore, come to different conclusions regarding the extent to which individuals deserve to exercise what are regarded as natural rights and freedoms. For Libertarians and Liberals there should be no hindrance to the exercise of civil and political rights by individuals. What is more, these rights should even be prioritized over the interests of the community. As far as they are concerned, a community is nothing more than the sum of its members, which means that the community (or social groups) cannot have distinct interests and rights. This is why they advocate reducing the role of governments and their influence over community matters and reject the idea of protecting marginalized social groups.

This political model, which prioritizes the rights of individuals over the needs of the community and rejects the idea that government should have a role in responding to these needs, blocks any possibilities of achieving democracy in substance. Less governance, by definition, means less care for the collective needs and problems of the governed. Under these circumstances, it is difficult to see how there could be a government for the people as a whole. What the electoral system assures is only democracy in form, a means of legitimizing the power of whoever rules.

Social contract theory, as imagined by Hobbes, was also intended to legitimize the authority of the ruler. The government can be viewed as being “of the people’ since the people chose it. This right to choose the ruler was justified by Hobbes because he believed that the individual has natural rights, i.e. the right to rule himself. However, since this person is assumed to be, by nature, egocentric, competitive and violent, Hobbes recommended surrendering these natural rights in the interest of the peace and interests of community life. One should note, in this regard, that Hobbes expected the ruler to govern by observing the mandates given by the governed – namely to protect the interests and safety of the community. This means, there would be ‘a government for the people’. What is problematic in the Hobbesian formula is the assumption that people would choose to surrender their rights and freedoms and willingly submit to suffering under a tyrannical rule.

Liberal and Libertarian democracies are products of the Western European societies and the states which were established outside Europe by the descendants of Europeans. Liberal democracy is a political system which mirrors the nature of the prevailing social relations and which evolved from the requirements of the socio-economic and political structures of the industrialized capitalist states. It attaches special importance to the freedoms and values of the individual citizen and applies social contract theory as a means of legitimizing governance through regular elections. This constitutes a system of government of the people, hence democracy in form. The exercise of individual rights and freedoms opens the doors for empowerment from below, and governance by the people. However, since minorities are not able participate effectively in the political machinery or to benefit from the economic wealth of these countries in the same way as the members of the majorities, the system has serious weaknesses.

In theory, this political model has the advantage of contributing to nation-building by shifting the loyalty of the individual away from his/her social group and traditional social structures to that of the state. However, in reality, this is possible only if states are politically and economically strong and able or willing to meet the needs of their citizens, including the marginalized members of the vulnerable groups. Otherwise, the latter will be unwilling to abandon their loyalty to traditional identities and social structures since they are the basis for their survival.

Whether this Western model of normative individualism works in the developing countries as it does in the West is an open question. To assume that the indigenous communities of the Amazon, the rural tribal communities of Africa or the religious communities of the Middle Eastern countries will replace their collective ways of life by normative individualism is to be naïve. Even in the more economically developed urban settings of these African and Asian countries, social relations have a collective dimension. Unlike in the West, the governments on these continents are not politically or economically strong enough, to care for their citizens, with the exception of mineral exporting countries (like the Gulf countries) or the few industrialized Asian countries. The negative consequences of replacing the existing social fabrics of these collective societies by normative individualism, at a time when the state is unable or unwilling to provide the means of existence to the citizens, would be  hard to predict. The massive exodus of ‘migrants’ from Africa to the European countries across the Mediterranean Sea might be one of these unfortunate consequences.

The fact that the developing countries have a heterogenous social base, in contrast to the homogenous nature of the nation-states of Europe, also calls into question the idea of rule of the majority which underpins democracy in Europe. This model of majority rule, that is characteristic of Liberal or Libertarian democracy, is appreciated by the members of the majorities since the political system adopts their ethnic, linguistic or religious characteristics. It is those who belong to the ethnic or linguistic or religious minorities who fear marginalization and discrimination based on their identities. It is no wonder, therefore, that the system can even tolerate and protect the exercise of individual rights and freedoms that are directed against ethnic, linguistic or religious minorities. This is also why when the racist, Nazi and Fascist groups mobilize the members of the majorities against the minorities they do it under the pretext of nationalism, by even describing themselves democrats.

For many of the African and Asian countries who have over one hundred smaller distinct ethnic, religious or cultural groups (e.g., Nigeria, Sudan, the Democratic Republic of the Congo and Ethiopia), majority rule can mean political and economic domination by very few ethnic groups with large populations. In most of these countries, the official languages used in the government offices, courts, schools, hospitals, employment areas, etc. are the language(s) or these majority groups. By virtue of their numerical size these majorities can effectively dominate the other groups economically, politically, culturally, socially and in other respects. The fear of being dominated by other social groups, as well as the desire to protect and promote their own traditional collective interests, leads individual in these kinds of societies to think of their own narrower social groups rather than with the nation when the right to votes is guaranteed. Alex Thomas was right in underscoring the point that even the recognition of “(M)ulti-party democracy … opens up the possibility of full-scale mobilisation. After all, as Claude Ake points out, ’Liberal democracy assumes individualism, but there is little individualism in Africa’. Africans interact on a more communal basis.”[82]

The other reason which makes normative individualism less attractive in countries that are not as economically developed as Western countries is that it is associated with calls to limit the role and authority of government in societal matters. People in countries with diverse social groups who suffer from neglect, deprivation and discrimination need centralized government policies and measures to provide assistance, for example, by expanding the infrastructure and providing education, health services, housing facilities and the like. This means government for the people. However, this is the exact opposite of what normative individualism calls for, particularly when inspired by the Randian political model.

This Randian model has been praised as the best system since it maximizes individual freedoms; however, at the same time it rejects the rights of individuals to work, health, education and a decent standard of living — i.e. to their very means of survival. Under this formula an unemployed person is given the option of accepting or rejecting an offer of employment. A person who is discriminated against in the field of employment, education or health has nowhere to turn to because the government is discouraged from responding to these kinds of social and economic problems. A citizen who is bankrupted after being forced to sell his home to pay for medical treatment for family member or who becomes disabled or ill due to conditions at work should not count on help from the government since the rights to health and a decent standard of living are not recognized. The individual merits no support as a citizen since the government has no authority to respond to such problems. Those private individuals who try to help by providing support are ridiculed since altruism is considered as foolishness. This model is surely unacceptable in developing countries. Martti Koskenniemi was correct in stating that “(T)he nation-State and its democratic forms may not be for export as pure form” and in warning against the insistence on using democratic models as ‘an international or universal norm of ‘democracy’ … within existing political communities (where it) may in fact be unacceptable … and always suspect as a neocolonialist strategy”.[83]

Concerned by the loophole in human rights which normative individualism has created, some Liberals, such as Jack Donnelly, Will Kymlicka, John Rawls and those who appreciate the virtues of Utilitarianism offer different kinds of remedies in the interest of social justice. Jack Donnelly endorses economic and social rights but not group rights, except indigenous rights. Kymlicka accepts group rights including minority rights. Both these positions deviate from normative individualism. Embracing Utilitarian ideas also creates obvious tension with the Liberal and Libertarian ways of thinking, whose very premise, at least as formulated in the thoughts of John Locke, Immanuel Kant and Jean Jacque Rousseau is the defense of natural rights. According to Jeremy Bentham, the father of Utilitarianism and positivism, the notion of natural rights is nonsense because it is fabricated based on passions.[84] “There are no rights without law”, in his opinion and “no rights contrary to the law.”[85] Rights, obligations, offence and services are all inter-connected and they are made by governments to govern the community.[86] When there are social problems or wrong things happen, it is the responsibility of the government to make them right, in ways that maximize benefits to the welfare of the governed. This is why Utilitarianism maintains that if a right is worth its name it should have utility.[87]

The collectivist schools of thoughts, such as, Communitarianism, Socialism and Social-Democracy embark from a solid base which considers the self as a by-product of the community and the defense of the collective interests. Unlike the proponents of normative individualism they do not have rely on imagined ‘natural rights’. Their concern for collective and group interests makes their approach ‘democracy friendly’ since the people are groups, not individuals. Regarding the self as a by-product of the community leads to the idea of empowering communities. However, this creates tension inside multi-ethnic and multi-national societies, and may even lead to the disintegration of their states, as occurred in the former U.S.S.R, the Yugoslav Federation and Czechoslovakia. The challenge is to develop political models which extend democracy to the people of the state, as a whole, while protecting the interests of communities.

An example of a common ideological platform which unifies diverse ethnic, religious and cultural groups under a common cause is the Marxist theory of Socialism which merges ‘the workers’ into one proletarian class. The weaknesses of this theory include (i) the rejection of the civil, political, economic, social and cultural rights of the individuals, (ii) the use of the top-down approaches of governance by elitists (central committees) to dictate the affairs and interests on the people, and (iii) the assumption that all sociological nations should have the right to create their own political nations. The concept of the ‘dictatorship of the proletariat’ implies elitist rule by those who claim to know the requirements of ‘scientific’ socialism and are intolerant of dissent. We have seen, time and again, how opposition can be silenced by being condemned as anti-social, reactionary, counter-revolutionary.

The other problem with the Marxism model is its defense of national self-determination. The application of this theory would lead to the disintegration of multi-national states such as Russia, Spain and the United Kingdom as well as most African and Asian countries, as has already occurred in the former U.S.S.R, the Yugoslav Federation and Czechoslovakia. Moreover, this is likely to encourage smaller social groups, such as, indigenous groups, tribes, and religious and linguistic communities to also struggle either for separation or for some kind of autonomy, thereby further disrupting the fabric of national unity.

Social democracy has navigated between these contrasting positions of Marxism, Communitarianism and Liberalism. It accepts the social nature of mankind and rejects the notion of political emancipation through proletariat revolution. The electoral system and multi-party system are embraced as the best means of protecting individual rights and freedoms. This way, the notion of government by the people and of the people is guaranteed. The interests of the broader community are promoted in two ways. On the one hand, economic, social and cultural rights are recognized and promoted through higher taxation and key public sectors – such as schools, transportation, insurance, media – are placed under ‘public’ control. This political model has been used for decades and continues to dominate politics in the Nordic countries, such as Sweden. This model tolerates the existence of rival political parties, such as Liberals, Leftists, extreme Right-wing parties and Christian Democrats. While the Social Democratic Party of Sweden is not as powerful as it used to be it is still the strongest of all the parties, and the dominance of social democratic ideas is such that even the rival parties do not dare to openly call for dismantling of the social benefits which Social Democracy has brought about. Interestingly, because Social Democracy has produced tangible results, the strategy which the populist parties use is to say that immigrants are threat to the nation and looting what is collected from the taxpayer. To put it crudely, their slogans are simple: ‘elect us and we will drive the alien looters out’. Not surprisingly, these kinds of emotionally appealing promises have not enabled the Swedish Democrats (the Extreme Right) to get about 17% of the votes in the most recent election.

 Modern Democracy: Historical Evolution

The American and French revolutions created shock-waves among despotic leaders near and far and inspired hope among the victims of oppression. During the first decade of the 19th century the armies of Napoleon spread out over large parts of Europe, promising the fruits of the French Revolution to the inhabitants of the occupied territories. The leaders of the uprisings in European colonies of Central and South America took advantage of the occupation of Portugal and Spain by Napoleon to struggle for independence and start out on a new, democratic way of life. The louder and wider the drums of revolution, popular sovereignty and self-determination echoed, the more colonialism and despotism lost ground in the Western hemisphere. European despots were left with a choice between peaceful change and bloody uprisings.

Not surprisingly, constitutional proclamations upholding popular sovereignty started to make appearances in many places, even if what was promised and proclaimed was not always delivered. Article 49 of the May 17, 1814 constitution of the newly established state of Norway promised Norwegian citizens that the new order would place the legislative power in hands of their parliament (the Storting).[88] The Liberian Declaration of Independence of July 16, 1848 recognized the ‘inalienable rights’ of all men including “life, liberty, and the right to acquire, possess, enjoy, and defend property” and:

…to institute a government, and to choose and adopt that system, or form of it, which in their opinion will most effectively accomplish these objects, and secure their happiness, … to institute government and powers necessary to conduct it is an inalienable right and cannot be resisted without the grossest injustice.”[89]

Article 39 of the Mexican constitution of 1917 stated that “national sovereignty resides essentially and originally in the people. All public power originates in the people and is instituted for their benefit. The people at all times have the inalienable right to alter or modify their form of government”[90] Paragraph 1 of article 6 of the 1937 Irish constitution affirmed that:“All powers of government, legislative, executive and judicial, derive, under God, from the people, whose right it is to designate the rulers of the State and, in final appeal, to decide all questions of national policy, according to the requirements of the common good.”[91]

In light of this there is no doubt that the notion of ‘the will of the people’ has been transformed to an important international principle by the end of World War I.This is not, by any means, to suggest that democratic governments were established everywhere or that the states which purported to be democratic were acting democratically. The point is made merely to underscore that popular sovereignty was increasingly invoked and formally acknowledged in the American hemisphere and in Europe including in Russia where a Communist form of governance had been proclaimed. The enjoyment of effective democracy, however, had to wait for several decades until the required institutions were fully developed and the citizens (including women) were empowered to exercise their democratic rights.

The notion of ‘the will of the people` received a face-lift when it was proposed for use as an international political norm by the victorious Allied Powers at the end of World War I. The intention behind this proposal was mainly to legitimize of the contours of the new political borders of Europe. This was to be done by asking some of the inhabitants of the frontier areas to choose between the bordering states they preferred to belong to. Speaking before the U.S. Congress, President Woodrow Wilson emphasized the significance of respecting the rights of every people to “be left free to determine its own polity, its own way of government” since “(N)o peace can last, or ought to last, which does not recognize and accept the principle that governments derive all their powers from the consent of the governed.”[92] This idea was endorsed by the British Labour party with regard to the occupied German and Ottoman territories.[93]

There is no doubt that the problems that emerged following World War I were ultimately settled according to the principle of ‘Might is Right’. Few would doubt that the political behavior of the Allied Powers, on both domestic and international planes, was hardly reconcilable with this noble idea of ‘the will of the people’. Nevertheless, by this time the concept of ‘will of the people’ had become popular and it was applied. albeit selectively, in border areas such as the Saar Basin, Upper Silesia, East Prussia, and Eupen and Malmedy by asking the inhabitants of these regions to indicate which states they wished be part of.[94] The inhabitants of these territories were not given the right to create separate states, or to have their own rule in the form of autonomy or self-administration. The principle of self-determination was applied in a restricted way.

The other innovative political development which occurred at this time was the establishment of the Mandate system. Under Article 22 of the Covenant of the League of Nations, the states that were awarded the administration of territories that were taken from Germany and the Ottoman Turks, were required to respect “the principle that the well-being and development of such peoples form a sacred trust of civilization”. The manner in which this obligation was discharged was supervised by the League of Nations.

The Evolution of Democracy as a Universal Legal Concept

The Mandates and Roles of the UN. More relevant to the present era is how the notion of democracy was developed by the United Nations as a legal concept of universal validity. This development came about after a long and twisted process of negotiations and international political cooperation. The mandates for being concerned with this subject-matter were enshrined in the purposes of this organization. According to Article 1 paragraph 3 they include the promotion of respect for human rights and finding solutions to international economic and social problems. Paragraph 2 of this same provision obliges the UN to promote the equal rights and self-determination of peoples as the basis for friendly relations among nations. Even if the word democracy is not explicitly mentioned in these provisions, it is obvious that the realization of these goals would further the process of democratization.

Before explaining the road-map used by the UN to promote democratic values, it is important to remember things. Firstly, the UN does not have the power to adopt legally binding decisions, other than those that concern international peace and security. This is why its guidelines on the promotion of democracy are merely guidelines, unless they are embodied in legally binding instruments which are ratified by states. Example of this includes the right to take part in government which is recognized in article 25 of the international covenant on civil and political rights. Secondly, when it comes to the kinds of political systems which best promote democracy, the view of this organization is that it does not endorse any particular model. Whether this is stated merely for the sake of politeness to respect the Charter principle of state sovereignty, it is up to the reader to decide. What is equally obvious is that the UN is urging states to conduct themselves in accordance with the Human Rights-Based Approach, which suggests that this approach appears to be the only acceptable method of promoting and measuring democracy in the absence of other tools.

The UN has been following two distinct ‘pathways’ to the promotion of democracy, one based on peoples’ rights and good governance and the second one based on human rights.[95] The former focuses on the collective dimensions of the rights of peoples (political communities)– i.e. democracy ‘from above’. The second approach focuses on how empowerment is to be promoted ‘from below’ by facilitating the exercise of rights by individuals and the members of some social groups. These two approaches are closely intertwined. Ignoring one or the other leads to a distorted understanding of how democracy, as a concept, is perceived by the UN. In the following section we will sketch the legal background for the UN’s promotion of both peoples’ rights and human rights. The significance of these legal frameworks for democracy will be explored in more detail later. 

How the UN Developed the Rights of Peoples: The UN developed the rights of peoples because its purposes include promoting “friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples” (art. 1(2) emphasis added). Article 55 lists the conditions which are necessary for achieving stability based on people’s rights. These include respect for human rights, and the promotion of economic and social development and other collective interests of the community. In Articles 73 and 76, this instrument addresses the rights of peoples inhabiting non-self-governing territories. All these references to the rights of peoples has evidently transformed the notion of ‘people’, which was earlier vague and an ideologically contested political concept, to a universally applicable legal concept with practical implications.

The UN Charter has not defined the concept of ‘people’. Nor has it listed all the rights peoples have. However, it is apparent that its drafters took care to ensure that issues related to democracy were not left out altogether. For example, its preambles start with the words “We the peoples of the United Nations” and ends by stating that it is these peoples of the world “through representatives assembled in the city of San Francisco, who have exhibited their full powers … (and established) … the United Nations.” Although many of the governments that were assembled to establish this organization in 1945 were not democratic, the form of the words used in the Charter sends a clear signal that states should belong to their peoples and not to the rulers. This implies the illegitimacy of despotism: a clear signal to despotic rulers that the UN would not tolerate the conducts of rulers who say, “I am the State” or “The State, That’s me”, as Louis XVI of France is supposed to have stated.

Using the mandates given to it by its Charter to promote friendly relations among nations based on respect for people’s rights(art. 1(2)), human rights and development (art. 1(3)), the UN wasted very little time in clarifying the road-map that should be followed. The first bold step was taken in 1948 when it adopted Universal Declaration of Human Rights setting out the civil, political, economic, social and cultural rights of the individual. Article 21 of this Declaration specifies the role of democracy in guaranteeing human rights. According to the 3rd paragraph of this provision, “(T)he will of the peoples hall be the basis of the authority of government” (emphasis added) and “this will shall be expressed in periodic and genuine elections which shall be by universal and equal suffrage and shall be held by secret vote or by equivalent free voting procedures.”  The first two operative paragraphs of this provision deal with the rights of the citizen “to take part in the government of his country, directly or through freely chosen representatives” and to “equal access to public service”.

Leaving this implicit endorsement of democracy aside, group rights, such as minority or indigenous rights and the rights of peoples to self-determination were left out from the Universal Declaration of Human Rights.[96] Because of this the states that were disappointed by this omission wasted no time in mobilizing in defense of the rights of peoples. Since these states were in the majority, they were able to muster the necessary votes to recognize the right to self-determination as a human right[97] and to include this right in the two draft covenants on human rights which were prepared following the adoption of the Universal Declaration on Human Rights.[98] Henceforth, peoples’ rights were to be treated not only as human rights but also as a pre-requisite for the effective enjoyment of human rights.[99]

Bearing this in mind, as well as the pledges given by the colonial powers under article 73 and 76 of the Charter to respect the rights of the peoples of the dependent territories, including their “their political, economic, social, and educational advancement” and “self-government” (art. 73) or independence (art. 76) the UN pressed these powers to deliver on their pledges. When they dragged their feet, the General Assembly adopted, on 14 December 1960, the Declaration on the Granting of Independence to Colonial Countries and Territories. The rest is history: colonialism was progressively dismantled, overseen by the Decolonization Committee, a process which led to the gradual advancement of democracy.

In the decades that followed, the UN adopted important instruments re-affirming and elaborating the different rights of peoples, including their right to social progress and development, to sovereignty over natural resources and wealth, etc. The adoption and coming into force of the International Covenant on Civil and Political Rights and the Covenant on Economic, Social and Cultural Rights in 1976 further affirmed the validity and significance of human rights and peoples’ rights.  Monitoring bodies were set up to assess the compliance with the provisions of these Covenants by the states that had ratified them. Of special importance to democracy is the acknowledgement made in paragraph 1 of article 1 of these two covenants that:

All peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.”

This provision acknowledges the political, economic, social and cultural dimensions of the rights which peoples have. The exercise of the political rights entitles a people, i.e., an internationally recognized political community or public family, to decide what the international political status of its country should be, e.g. to be independent, to be united with other political entities, or to be associated in different ways. In addition, a people is also said to have the right to manage its domestic affairs by freely pursuing its economic, social and cultural development. How this is done is left to each people and its state. However, it is interesting to note, in this regard, that article 55 of the Charter considers the promotion of “higher standards of living, full employment, and conditions of economic and social progress and development” as being essential for the realization of the rights of peoples. The UN is obliged by this provision to promote these goals, and members states have given their pledge to cooperate with these efforts, in accordance with article 56 of the Charter.

The Development of International Human Rights Law. The 1945 UN Charter reaffirms that all human beings have dignity and worth. It also made the promotion of human rights and freedom sone of its basic purposes. Proceeding from these premises the UN acknowledged, in 1948 the legitimacy of civil, political, economic, social and cultural rights when it adopted the Universal Declaration of Human Rights. The unique contribution which this document has brought to the discourse on human rights and democracy are highlighted by six key points of interest.

First, the declaration recognizes, in the third preamble, that “human rights should be protected by the rule of law” to avoid rebellion against oppression and tyrannical rule. This statement slams the door on the Hobbesian model of governance. Second, it articulates rights and freedoms by individualizing them (as the rights of individuals) as desired by Liberals and Libertarians. Third, it identifies the civil and political rights necessary for establishing and sustaining democratic governance, e.g., the rights to the freedom of expression, assembly, association and political participation. Fourth, it sets out the economic, social and cultural rights which good governance should promote – i.e. the entitlement to work, health, education, an adequate standard of living, etc. Fifth, in article 29, it accepts the positions of collectivists concerning the importance of subordinating individual rights and freedoms to the interests of the community. This provision makes it clear that individual rights can be restricted as “determined by law for the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality, public order and the general welfare in a democratic society”. At the same time, it acknowledges that the individual beneficiary of human rights “has duties to the community in which the free and full development of his personality is possible”. Last but not least, as pointed out earlier, this Declaration requires that the authority of governments should be based on “the will of the people”, which “shall be expressed in periodic and genuine elections”.

When the Universal Declaration on Human Rights was adopted no state voted against it. This was because its contents were formulated after considerable negotiations and because it was understood that it was not intended to be legally binding, but merely to set a “common standard of achievement for all peoples and nations” as indicated in the last paragraph of the preamble of the Declaration. As stated in article 10 of the UN Charter, the General Assembly has no power to adopt binding instruments. Still, there were a few states that chose to abstain from supporting the Universal Declaration of Human Rights because its contents were incompatible with their ideological or political convictions. These included the Soviet Union and its allies (consistent with the opposition of Marx to ‘the rights of man’), the racist regime of South Africa and conservative Saudi Arabia. The idea that all individuals should take part in politics and that governments should derive their authority from the will of the governed was not appreciated by the governments of the latter two states at the time. This is not to say that the domestic features of the other states who voted in favor of the declaration were fully in line with what required by the Universal Declaration of Human Rights. It simply explains what ‘compelled’ those states that chose to abstain to do so.

After the adoption of the Universal Declaration on Human Rights, the UN turned its attention to the preparation of legally binding covenants. On 5 February 1952 the UN General Assembly adopted resolution 543 (VI) requesting the Economic and Social Council to instruct the Commission on Human Rights to draft two separate covenants for subsequent adoption by the General Assembly. One was to deal with civil and political rights and the other with economic, social and cultural rights. During the drafting process the ideologically charged controversies relating to the validity of economic, social and cultural rights once again became the focus of intense debates. When it became clear that these were leading nowhere,  the General Assembly stepped in to break the deadlock by asking the Economic and Social Council to instruct the Commission on Human Rights (the drafting body) to acknowledge that “when deprived of economic, social and cultural rights, man does not represent the human person whom the Universal Declaration regards as the ideal of the free man”.[100]

Bearing this in mind, the Human Rights Commission was required to “include in the draft Covenant a clear expression of economic, social and cultural rights in a manner which relates them to civic and political rights and freedoms.”[101] The Commission complied with this, which is why we now find, in the third preamble of both these covenants, an identical provision acknowledging that:

the ideal of free human beings enjoying civil and political freedom and freedom from fear and want can only be achieved if conditions are created whereby everyone may enjoy his civil and political rights, as well as his economic, social and cultural rights

Ever since then, the inseparability of the linkage between civil and political and economic, social and cultural rights has been continually re-affirmed by the international community. In the 1968 Tehran Declaration, which was adopted on the twentieth anniversary of the adoption of the Universal Declaration of Human Rights, the General Assembly made it clear that:

Since human rights and fundamental freedoms are indivisible, the full realization of civil and political rights without the enjoyment of economic, social and cultural rights is impossible. The achievement of lasting progress in the implementation of human rights is dependent upon sound and effective national and international policies of economic and social development”.[102]

This formulation was slightly reformulated gradually, when the General Assembly adopted the 1993 Vienna Declaration and Programme of Action, by stating:

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.”[103]

After the two international covenants were adopted by General Assembly resolution 2200 A (XXI) on 16 December 1966, and came to force in 1976, the stage was set for the emergence of many other human rights conventions. Some of these subsequent conventions provide protection for the members of the different vulnerable groups (e.g., children, women, those with disabilities, migrant workers, indigenous peoples and those belonging to minorities) by contextualizing the complex realities obstructing their enjoyment of rights on an equal basis with others. The international regime of human rights which is now in place has been further enriched by the practices of the international monitoring bodies of the UN, the treaty committees, those of specialized agencies (e.g., the International Labour Organization and UNESCO) and the regional organizations (e.g., the Council of Europe, the African Union, the Organization of American States, etc.).

These developments have been warmly welcomed by progressive states and non-state actors who are committed to the defense of human rights, as positive steps towards the creation of a human rights-sensitive just global order. However, because the existing international monitoring systems have obvious weaknesses, pressure to further develop these mechanisms have been growing. In response to these concerns, the UN has gradually developed its Human Rights-Based Approach to be used as a normative conceptual framework to assess and promote compliance with international standards for human rights. Since the UN considers that the progress that is made towards developing human rights is irreversible, it started to use this HRBA for assessing how states are conducting themselves in human rights sensitive matters, including when it comes to promoting democratic values.

Democracy and the Human Rights-Based Approach

Conditioning Political Conducts to a Human Rights-Based Approach: Introduction

It may well be asked whether governments will permit the international organizations such as the UN to assess their conduct under the lens of human rights. Can the international requirements to comply with human rights standards and the principles of social justice really shape the conduct of political actors? This is not a new question. It was raised as far back as 1919 in the preamble of the International Labour Organization, which clarifies why this organization was established:

Whereas universal and lasting peace can be established only if it is based upon social justice. And whereas conditions of labour exist involving such injustice, hardship and privation to large numbers of people as to produce unrest so great that the peace and harmony of the world are imperiled; and an improvement of those conditions is urgently required … The High Contracting Parties, moved by sentiments of justice and humanity as well as by the desire to secure the permanent peace of the world, and with a view to attaining the objectives set forth in this Preamble, agree to the following Constitution of the International Labour Organization.”

It may seem puzzling that states of this period, especially the colonial powers, agreed to the establishment of such an organization, committed to the promotion of social justice. The explanation lies in the timing: the ILO was set up in the aftermath of the 1917 Bolshevik Revolution in Russia, when fears of the spill-over effects of this Revolution were real. The establishment of a communist regime in the USSR was justified as a response to the grievances of Russian workers against capitalism; and it seemed all too likely that workers in Western capitalist states would do the same. Added to this was the exhaustion of the Western powers after the First World War (1914-1918), leaving them with little alternative but to seek to establish more sustainable norms of political behaviour, based on humane values.

Unfortunately, this enterprise was not founded on solid grounds. The League of Nations which was established at the time to maintain international peace and security was not equipped with the legal and political mandates necessary to create a political order based on human rights. Instead, the League was used to protect the hegemonic interests of the rival big powers, including by preserving their spheres of colonial domination. An international organization which protects an unjust political order cannot survive and it soon became clear that the next annexationist wars were just around the corner.

The establishment of the UN brought about a unique situation which favoured the establishment of a more just order based on the promotion of human rights. The states which joined hands to create this organization made clear their determination, as stated in the preambles of the UN Charter that they are committed:

to save succeeding generations from the scourge of war…

to reaffirm faith in fundamental human rights.…

to establish conditions under which justice … can be maintained, and

to promote social progress and better standards of life in larger freedom”.

The‘peoples of the world’ were thus promised an international order that would take issues related to human rights and justice seriously. To this end, the UN was given a clear mandate to promote the self-determination of peoples and universal human rights, as provided by article 1 of the Charter, bearing in mind the need for settling international disputes “in conformity with the principles of justice and international law”. The regime of human rights that was developed subsequently was based on the understanding that its operation should not contravene the principles of state sovereignty and non-intervention. The ratification of the human rights instruments is left up to each state, although this would be monitored by the international bodies that are created for this purpose. If states ratify these human rights instruments they are not at liberty to disregard the undertakings assumed thereunder. If they do, violations of human rights are seen as an essentially international concern, warranting the legitimate responses in accordance with the seriousness of the case.

It goes without saying, therefore, that states which have assumed international human rights obligations are required to conduct themselves as required by the ratified instruments. This means they should follow a human rights-based approach when pursuing their political objectives. The idea of empowering the UN to monitor how this approach was pursued was resisted during the Cold War by the ardent defenders of state sovereignty, such as the U.S.S.R. and its allies, since they were suspicious of the political intentions of the Western Powers. The states which are not as economically developed and politically stable as those in the West also feared that this approach could be easily exploited to undermine state sovereignty in the pretext of addressing human rights violations. When the Soviet Bloc collapsed, resistance to the use of this human rights-based approach by the UN started to crumble. The Western powers too started to pressure these weaker states to embrace this approach, if they are to participate in Western-led globalization. This basically meant they were required to respect human rights as perceived by Liberalism.

The Development of the Human Rights-Based Approach by the UN

As the Soviet Union and its allies became weaker towards the end of the 1980s, the Western powers, political activists, non-governmental organizations and units within the UN wasted no time in making sure that a human rights-based approach to development should be incorporated into the UN system. The basic idea was to use this approach by making human rights a cross-cutting and pivotal factor for all states and agencies involved in formulating policies and pursuing and assessing development programs.  As UNICEF put it:

“A human rights-based approach is a conceptual framework for the process of human development that is normatively based on international human rights standards and operationally directed to promoting and protecting human rights.”[104]

This approach, as its proponents see it, ensures further consolidations of progress achieved in developing the regime of human rights, since the excuses which are commonly made to disregard human rights in the pretext of development will no longer be tolerated. After all, in article 1 (1) of the 1986 Declaration on the Right to Development, development has already recognized the right to development as:

“an inalienable human right by virtue of which every human person and all peoples are entitled to participate in, contribute to, and enjoy economic, social, cultural and political development, in which all human rights and fundamental freedoms can be fully realized.”

This means, when states design and implement their development plans, programs and activities, the human being should be “the central subject of development and should be the active participant and beneficiary of the right to development” (art. 2(1)). The human being should not be used as a tool for development.

One of the driving forces behind this promotion of human development is the United Nations Development Programme (UNDP), which published its first Human Development Report in 1990. Thereafter, the seeds of the HRBA began to be sown in the different international conferences that were arranged by the UN. The 1992 Rio Declaration on environment and development urged states to put human beings at the center of ‘sustainable development” and to enhance the participation of women and indigenous peoples in the development process.[105] The 1993 Vienna Declaration and Programme of Action reaffirmed “the right to development, as established in the Declaration on the Right to Development, as a universal and inalienable right and an integral part of fundamental human rights.”[106] Article 16 of the 1995 Fourth World Conference on Women in Beijing called for the promotion of:

sustained economic growth, social development, environmental protection and social justice (which) requires the involvement of women in economic and social development, equal opportunities and the full and equal participation of women and men as agents and beneficiaries of people-centred sustainable development”.

That same year the World Summit for Social Development underscored, in article 66, the importance of pursuing a policy of social integration by enabling the individual to play an active role in the process, and added that:

Such an inclusive society must be based on respect for all human rights and fundamental freedoms, cultural and religious diversity, social justice and the special needs of vulnerable and disadvantaged groups, democratic participation and the rule of law”.

Shortly thereafter, A UN Programme for Reform was launched, in order to inspire UN-affiliated entities “to mainstream human rights into their various activities and programmes within the framework of their respective mandates.”[107] The idea behind this was to design a commonly agreed upon, right-based approach model for use by UN agencies, funds and programmes. The task was initially left to the UN Interagency Workshop on a Human Rights Based Approach, which met from 3 to 5 May 2003. This gradually led to the formulation of a “Common Understanding”, which was subsequently endorsed by the 2005 World Summit, giving HRBA official political legitimacy, thereby paving the road for “developing concrete tools, instruments and processes … [and] coordinated system-wide actions in those areas.”[108]

In the context of development, there are two basic requirements for compliance with HRBA. First, the goals of development policies, strategies, programs, activities, technical assistance and co-operation should always further human rights, as laid down in the Universal Declaration of Human Rights and other international human rights instruments. This means that the human rights standards contained in these instruments should guide development programming and cooperation in all sectors and in all phases of the development processes. Second, these development processes and cooperation should contribute to strengthening the capacities of the ‘rights-holders’ to claim their rights and the ‘duty-bearers’ to comply with their human rights obligations. This requires appreciating five key points: i. the universality of human rights, so that all human beings are in a position to exercise their rights; ii. the inalienable nature of human rights, which means that they cannot be abandoned; iii. The indivisibility, inter-dependent and inter-relatedness of civil, political, economic, social and cultural rights, without prioritizing one over the other; iv. The promotion of equal rights by combating all forms of discrimination, e.g. by ensuring inclusion and participation; and v. respect for the rule of law and the principle of accountability.[109]

When applied to the real world what this means is that development should be understood in human terms, as a means of safeguarding the dignity and worth of the human being, for the benefit and empowerment of all the right-holders without discrimination based on sex, age, linguistic, religious and other factors. This requires compliance by States with the obligations which they have assumed under the different international human rights instruments, including those protecting the members of vulnerable groups, such as children, women, migrant workers, persons with disabilities and those who belong to minorities and indigenous groups.

It is important to recognize that this HRBA is not legally binding or free from controversy. Its starting point which considers human rights as inter-related, interdependent and interconnected, as recognized in the Universal Declaration of Human Rights, is questioned by some states who have intentionally avoided from ratifying the covenant on civil and political rights or the covenant on economic and social rights, or some of the conventions which protect vulnerable groups. The principle of state sovereignty, which is recognized in paragraph 1 of article 2 permits states to ratify or not to ratify the human rights instruments and to make reservations on the instruments they wish to ratify. As elaborated in principles 3 and 4 of the 1970 UN Declaration on Principles of International Law Concerning Friendly Relations and Cooperation among States the principle of sovereignty also entails non-intervention in what is essentially a domestic matter. “Every State” under this declaration, “has an inalienable right to choose its political, economic, social and cultural systems, without interference in any form by another State.”

States that lag behind in economic development see the HRBA with suspicion because it can be used to stifle their development efforts by making allegations about human rights abuses. These states, especially those with marginalized and neglected multi-ethnic and multi-national groups, claim that they have inherited unjust economic, social and political structures from their colonial past. As they see it, there is no quick-fix to achieve development without making sacrifices. Without rapid economic development, human rights cannot be effectively realized and enjoyed by all on equal basis. These states, therefore, appear to be caught in a vicious circle with no easy escape from the traps of underdevelopment.

Under these circumstances, as governments of these developing countries see it, prioritizing HRBA will not only frustrate the efforts which they are making to develop, but could even de-legitimize these governments themselves and in the end weaken their states. The developed states do not have this problem because they are already developed – and mostly by sacrificing human rights. A case in point is the way the industrialized states in north America and the Western Europe were able to develop during the past centuries by benefiting from slavery and colonial subjugation. The point here is not to say that the developing countries should do what the developed ones have done, but to underscore the point that giving veto power to individuals and local groups on the pretext of human rights, e.g. when attention is turned to the construction of dams, railroads or highways, the large-scale development of agriculture and the exploitation of minerals, etc. runs the risk of arresting national development efforts.

Leaving behind these controversies surrounding HRBA, UN bodies, human rights monitors, donors, NGOs and an increasing number of states are now use of this tool for evaluation of development policies, and to make sure that rights-holders are claiming their rights. UNDP relies on HRBA for assessing the success of development efforts of states in promoting sustainable human development and tackling inequalities and discrimination. Donor agencies use it to see how their development aid benefits the local populations on the ground. UNICEF uses it to assess the extent to which the welfare of children is being protected in accordance with the Convention on the Rights of the Child. Likewise, WHO uses HRBA to assess health service provision for children, compliance with the health service provision for women required by the Convention on the Elimination of Discrimination against Women, and accessibility and acceptability of food, water, clothing and shelter to populations at large as required by articles 11 and 12 of the Covenant on Economic, Social and Cultural Rights.

At the same time as the HRBA is monitored from above by UN bodies, specialized agencies, donors and states, the UN was also making efforts to empower beneficiaries and defenders of human rights to apply HRBA from below. These efforts culminated in 1998 in the adoption of 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” (better known as the Declaration on Human Rights Defenders). This instrument sets out how the voices of the beneficiaries and defenders of human rights should be respected and promoted in the debates on development. “Individuals, groups, institutions and non-governmental organizations”, states article 18, “have an important role to play and a responsibility in safeguarding democracy, promoting human rights and fundamental freedoms and contributing to the promotion and advancement of democratic societies, institutions and processes.”

The different provisions of this declaration underscore the roles which states should play in supporting human rights activities. More specifically, it defends the rights of individuals and groups “to promote and strive for the protection and realization of human rights at the national and international levels” (art. 1). These activities include the rights “to know, seek, obtain, receive and hold information about human rights” (art. 6(a)), to meet, assemble and participate in associations, to form non-governmental organizations, and to communicate with international organizations and NGOs (art. 5) and to engage in public awareness campaigns (art. 6(b) & (c) & 16). Further, the declaration affirms the rights of individuals and groups to solicit resources for their human rights activities (art. 13), to engage in peaceful activities (art. 12), to obtain effective remedies for the rights that are violated (art. 9(1)) and to approach governmental bodies and agencies to express criticism and propose improvements (art. 8).

Shortly after this declaration was adopted by the UN General Assembly, the Human Rights Commission also began highlighting the kinds of measures which states should take to promote democracy. These included respecting human rights in general, but also in particular political rights, such as the freedoms of expression, assembly and association (for example by allowing multiple political parties), and the right to participate in the government. Furthermore, states were urged to strengthen their electoral systems (by ensuring universal suffrage), to guarantee the impartiality of the judiciary, promote a pluralistic and independent media, ensure respect for the rule of law, and enhance the transparency and the accountability of government.[110] Support was also given by UN offices and programs to national and local initiatives to empower women, to strengthen human rights institutions, to safeguard the independence of the media and develop policies and laws promoting freedoms of expression, association and assembly.[111] All these measures were deemed to be necessary for promotion of democracy.

Application of the HRBA to Democracy – The Group Rights Approach

Collectivists, such as Socialists and Communitarians, and most of the defenders of state sovereignty prefer to see the UN focus on group rights (and state sovereignty) when applying HRBA to promote and measure democracy. It is evident that HRBA is currently used mainly to check on the extent to which countries respect and promote individual rights and freedoms, as preferred by Liberals and Libertarians. However, it would be a mistake to assume that the international regime of human rights has entirely abandoned the collectivist approach, especially how peoples’ rights are promoted. The UN has been promoting empowerment both from below (by promoting individual rights) and from above (by promoting the rights of peoples) to further the processes of democratization.

The UN assumed its mandate to promote the rights of peoples on the basis of articles 1(2), 73 and 76 of its Charter. The earlier moves of this organization to promote the rights of peoples were aimed at facilitating the decolonization of the non-self-governing territories. This was achieved by following two separate approaches. On the one hand, the UN monitored compliance by administrators of colonial territories with their human rights obligations under articles 73 and 76 of the UN Charter, which had both collective and individual dimensions. On the other hand, this organization was promoting ‘friendly relations among nations based on the principle of equal rights and self-determination of peoples’ as provided by paragraph 2 of article 1 of the Charter. The latter, in essence, concerns promoting the rights of political entities (i.e. the dependent nations) and their relations with the administering powers. Operative paragraph 3 of General Assembly resolution 637 A (VII) 16 December 1952 encapsulates how these two approaches were invoked to achieve the same goal of ending colonialism. This provision provided that:

“The States Members of the United Nations responsible for the administration of Non-Self-Governing and Trust Territories shall take practical steps, pending the realization of the right of self-determination and in preparation thereof, to ensure the direct participation of the indigenous populations in the legislative and executive organs of government of those Territories, and to prepare them for complete self-government or independence.”

Frustrated by the consistent demands of the UN General Assembly calling for the speeding up of the process of democratization in the non-self-governing territories, the colonial powers questioned the legal basis for these kinds of interventions by the UN, since they considered these questions as internal matters. At one point they even refused to send the reports to the UN as required under article 73 of the Charter. If the UN was to proceed with this manner of ‘intervention’, it was argued, then other independent states too should do the same by speeding up the process of democratization within their realms e.g., by empowering minorities and indigenous groups. This political campaign was led by Belgium using the formula which was known at that time ‘the Belgian thesis’. The idea was to broaden the obligations mentioned in articles 73 and 76 of the Charter to all the UN members to promote self-government for all their minorities and indigenous tribes.[112] This idea was dismissed by the anti-colonial camp as an effort to meddle in the internal matters of independent states, by confusing internal and international issues, thereby distorting the purposes of articles 73 and 76 (the so-called colonial provisions).[113]

One of the arguments used by the colonial powers to reject the promotion of human rights, democracy and self-determination in their colonial territories was that the word self-determination is not even mentioned in articles 73 and 76. The General Assembly responded by recognizing the right of peoples to self-determination as a human right, by resolution 421 D(V) of 4 December 1950. On 5 February 1952, the General Assembly went a step further by adopting resolution 545 (VI) which requires an article which deals with this right to be inserted in the international covenants that were being drafted. The colonial states, backed by most other Western states, rejected this by raising the familiar Liberal argument that the right of peoples to self-determination was a group right and not individual human right and therefore cannot be accepted as a human right. Even if the UN was to proceed with this idea, they argued, it would be difficult to apply it because it was difficult to define who the right-holders (i.e. the ‘peoples’) were.

The General Assembly justified its own moves by underlining that this right to self-determination was already recognized in paragraph 2 of article 1 of the UN Charter. Moreover, the UN would continue to promote this right throughout the dependent territories since they had international status and were not simply internal matters of the colonial powers. When the colonial powers refused to cooperate in dismantling their colonial rule based on the principle of the ‘will of the people’, the General Assembly adopted, in 1960, its Declaration on the Granting of Independence to Colonial Countries and Peoples. This was followed by the creation of its Decolonization Committee to speed up the demise of colonialism. The rest is the story of how around seventy per cent of the population of the world was set free from the yoke of colonialism. This was an important step forward for democracy.

The UN Charter recognizes the principle of equal rights and self-determination of peoples and the two international covenants acknowledge the rights of “all peoples” to self-determination. Bearing this in mind, the UN has not refrained from expressing concern over how the principle of self-determination is respected even outside the colonial context. As is recalled, it imposed economic and arm embargoes on the South African regime of Apartheid and even refused to recognize its credentials as the representative of the people of South Africa. In 1990, the UN Security Council condemned the forcible removal of the legitimate government of Kuwait by the military force of neighboring Iraq (resolution 660). It did the same in 1991 when the legitimate ruler of Haiti, President Jean-Bertrand Aristide was overthrown (resolution 940) and it denounced the 2006 military take-over in the Fiji (resolution 8893). This organization has also called for free and fair elections in many countries that were plugged by conflict, such as for the conflict in Rwanda in 1993 (resolution 872), the D. R. Congo, in 1999 (resolution S/RES/12134), Sierra in 2002 (resolution 1389), Liberia in 2003 (resolution 1509) and Burundi in 2016 (resolution 2303). Indeed as the UN homepage on democracy indicates only after the end of the Cold War this organization, “has provided various forms of electoral assistance to more than 100 countries — including advisory services, logistics, training, civic education, computer applications and short-term observation.”

How states conduct themselves when respecting and promoting the rights of people also continues to be of concern to the UN. Proceeding from this premise, the UN has continued to adopt important declarations which elaborate the different rights of all peoples. Examples include the rights to social progress and development[114], on sovereignty over natural resources and wealth[115], and the right to development.[116] In all these instruments attention is drawn to ‘peoples’ rights’ and how the needs of the members of these political communities are to be met. It is important to recognize, in this respect, that unlike the right to self-determination, which is affirmed by the two legally binding covenants, most of above-mentioned rights are mentioned in declarations which are not binding and only set guidelines.

Equally important is to note when it comes to how the UN promotes democracy, are the steps taken to promote the rights of the rights of persons belonging to minorities and indigenous groups. In 1992, this organization adopted the Declaration on the Rights of Persons Belonging to National, Ethnic, and Religious Minorities.[117] Although this declaration takes an individualized approach to minority rights it also acknowledges that the rights that are recognized can be exercised collectively. In 2007 the UN adopted the Declaration on the Rights of Indigenous Peoples. This instrument defends both the individual and group rights of these communities. In effect, this latter instrument which promotes the rights of ‘indigenous peoples’ follows the ‘Belgian thesis’ which was defended in the late 1940s and early 1950s. At the time Belgian was calling for expanding the obligations assumed by the Colonial Powers in relation to articles 73 and 76 to encompass all states.

The 2007 Indigenous Declaration acknowledges that indigenous peoples have the right to internal self-determination in the form of self-government or autonomy[118] and calls for the protection of  their laws, cultures, traditions, languages, institutions, traditional medicines and land rights.[119] The implementation of this instrument will clearly empower the members of the indigenous communities, as well as indigenous groups as entities, to pursue their own economic, social and cultural development. To facilitate this process the UN established a Forum for Indigenous Peoples inside the UN, for networking among representatives of indigenous peoples and to facilitate discussion of issues of interest to them with one another and with others. It has also appointed a Special Rapporteur to monitor their human rights.

The approach used by the UN to empower indigenous groups introduces an interesting question into the debate on the promotion of democracy, since minorities are not afforded similar group rights, for example to autonomy, self-government, and right to develop their own languages and cultures. It is to be recalled that when the Covenant on Civil and Political Rights were being prepared, the U.S.S.R. and Yugoslav both tabled draft resolutions calling for the recognition of the collective rights of minorities. The U.S.S.R.’s resolution defined these rights as follows:

The State shall ensure to national minorities the right to use their native tongue and to possess their national schools, libraries, museums and other cultural and educational institutions[120]

This resolution was not accepted. Instead the formula that was agreed upon for minority rights focused on the right individuals not to be denied access to these benefits, as set out in article 27 of the Covenant on Civil and Political rights:

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 defective formulation was widely criticized later by the defenders of minority rights as being insufficient and vague. To remedy this, the 1992 declaration on the rights of minorities affirms that persons belonging to ethnic, linguistic, religious or national minorities “have the right to enjoy their own culture, to profess and practise their own religion, and to use their own language” (art. 2). It also calls upon states to “encourage conditions for the promotion of that identity” (art. 1) rather than allowing the right-holder to do this. As set out in paragraph 2 of article 4:  “States shall take measures to create favourable conditions to enable persons belonging to minorities to express their characteristics and to develop their culture, language, religion, traditions and customs, except where specific practices are in violation of national law and contrary to international standards.”

These formulas of promoting group rights and responding to their needs can be seen as positive steps in the promotion of empowerment and democracy. However, most states are wary of advancing the agenda of minority rights because of the fear that this could lead to ethnic-based rivalry and local nationalism, threatening national unity. In a worst-case scenario, they fear, this could tear apart their state. The indigenous question was seen differently because most states deny having such groups and argue that they exist only in states where the descendants of the European settlers have established states outside Europe, e.g. in Australia, New Zealand and the Americas.

Applying the HRBA to Democracy: The Civil and Political Rights Lenses

The Content of Civil and Political Rights. In the view of most of the defenders of normative individualism, democracy should only be measured with reference individual civil and political rights and how these are respected and promoted. Before examining how these lenses works, it is necessary to explore the contents of these rights as set out in the Universal Declaration of Human Rights and more importantly in legally binding International Covenant on Civil and Political Rights (CCPR). This latter instrument has been ratified by 172 states. Both these instruments list the civil and political rights which are derived “from the inherent dignity of the human person”. According to the covenant on civil and political rights, what are acknowledged include the protection of life (art. 6), privacy (art. 17), family (art. 23), protection from slavery, forced labor and servitude (art. 8), from torture and similar cruel and inhuman punishment or treatment (art. 7), from arbitrary arrest (art. 9), and from punishment through retroactive application of laws (art.15). This covenant also acknowledges the rights to freedoms of religion (art. 18), expression (art. 19), assembly (21) and association (art. 22), as well as the right to take part in the conduct of public affairs in one’s own country through direct elections or through representation by using the voting systems and access to public services (art. 25).

The manner in which these rights are framed in this Covenant makes it clear that most of them are subject to limitations. For instance, the freedoms of assembly and association may be restricted if this is “necessary in a democratic society in the interests of national security or public safety, public order, the protection of public health or morals or the protection of the rights and freedoms of others” (art. 21 and 22(2) respectively). The exercise of religious freedom can be restricted by law when it is necessary “to protect public safety, order, health, or morals or the fundamental rights and freedoms of others.” (art. 18(3)). Freedom of expression entails recognizing “duties and responsibilities” and can be restricted to protect “national security or of public order, or public health or morals” or to ensure respect for “the rights or reputations of others” (art. 19(3)(a) & (b)). What is more:

Any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law.” (art. 20 (2))

There are very few rights which should not be subject to restriction. They are listed in article 4 of the Covenant. They include the protection of life, protection from slavery, torture, cruel and inhuman treatment and punishment, immunity from double jeopardy and from imprisonment for not fulfilling contractual obligations, recognition of the person by law, and religious freedom in principle (articles 6, 7, 8 (I & 2), 11, 15, 16 and 18). Freedoms are recognized in a manner that makes them limitable. The grounds for restricting them are recognized by the regime of rights. This is why we speak of ‘the right to the freedom of expression or assembly or movement or religion. This is also why the political world chose the expression human rights rather than human freedoms as the title of the regime of rights. This suggests that the Libertarian position which calls for rights to be based on freedoms has been rejected since it is the regime of right which determines which freedoms are to be accepted as legitimate and how they should be exercised or not exercised.

Linking Civil and Political Rights to Democracy: Democracy is obviously inconceivable without civil and political rights. The notions of ‘the will of the people’, ‘popular sovereignty’ or ‘government by the people, of the people and for the people’, all lose their meaning without civil and political rights. If there is no protection of life or security, if liberty and equality are disregarded democracy will only have symbolic importance. To establish and sustain democracy it will be necessary to freely express opinions, by collecting the necessary information and distributing this to the other members of the society, to associate with one another (through the formation of political parties or associations) and to assemble to discuss political issues of interest. It is only when these political rights are respected and promoted that the members of the national community are able to manifest their will in choice of who should govern – i.e. by casting their votes, without constraint and discrimination, in free and fair elections.

In short, it is the effective exercise of civil and political rights which creates the conditions for empowering the citizens, to be able to choose their government, and to monitor how public affairs are conducted by their government. This way, the wishes of the citizens could be heard from within by tolerating inclusiveness in decision-making processes. This paves the road to the emergence of ‘government by the people, of the people and for the people’ and popular sovereignty. If the government does not operate in transparent ways by responding to the needs and desires of the people, then democracy is a sham. This is why the acknowledgement of “the will of the people” as the basis for government, in article 21 of the Universal Declaration of Human Rights, has been described as not just a revolution but “a ‘revolution within a revolution’”.[121]

One of the cornerstones of democracy, which is acknowledged in article 26 of the Covenant on Civil and Political Right, is the notion of equal rights and non-discrimination. According to this provision:

All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.”

This principle is well anchored in this covenant. Under article 2 (1) of this instrument, the states parties to this Covenant have assumed the obligation “to respect and to ensure” all the civil and political rights that are mentioned therein “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”. Article 3 of this covenant also requires ratifying states to “…ensure the equal right of men and women to the enjoyment of all civil and political rights”.

The other democratic value that underpins the covenant on civil and political rights is the idea inclusiveness, which should be achieved through participation in political processes. This idea follows from paragraph 3 of article 21 of the Universal Declaration on Human Rights which considers “the will of the people” as the basis for “the authority of government” and calls for the use of “periodic and genuine elections … based on universal and equal suffrage .. or by equivalent free voting procedures”. The first paragraph of this same provision also acknowledges the importance of ensuring participation in government “directly or through freely chosen representatives” with “equal access to public service in (one’s own) country”. This idea is re-affirmed in article 25 of the covenant on civil and political rights which acknowledges the citizen’s rights to:

(a) To take part in the conduct of public affairs, directly or through freely chosen representatives;

(b) To vote and to be elected at genuine periodic elections which shall be by universal and equal suffrage and shall be held by secret ballot, guaranteeing the free expression of the will of the electors;

(c) To have access, on general terms of equality, to public service in his country.”

The universal validity of this political right is evident from the wider acceptance it has received under many other human rights conventions which prohibit various forms of discrimination that imposes limits on political participation. For instance, paragraph C of article 4 of the Convention on the Elimination of Racial Discrimination calls for the elimination of racial discrimination affecting the exercise of “(P)olitical rights, in particular the right to participate in elections— to vote and to stand for election—on the basis of universal and equal suffrage, to take part in the Government as well as in the conduct of public affairs at any level and to have equal access to public service”. Article 7 of the Convention on the Elimination of Discrimination Against Women also calls the elimination of gender-based discrimination “in political and public life”, including restrictions on the rights of women to vote in elections as well as “(T)o participate in the formulation of government policy and the implementation thereof and to hold public office and perform all public functions.”

Similar stipulations are included in the regional conventions. Examples include article 23 of the 1969 American Convention on Human Rights, article 3 of the first Protocol to the 1950 European Convention on Human Rights, article 13 (1) of the 1981 African Charter on Human and Peoples Rights and art. 29 of the 1999 Commonwealth Independent States Convention on Human Rights and Fundamental Freedoms. The 1994 Arab League Charter of Human Rights considers “the people” as “the source of authority” and acknowledges that the citizen has “political capacity” (art. 19) and “the right to occupy public office” (art. 33). In view of all these it is difficult to question that the right to be represented in the government is now clearly recognized in international law.

 The Challenges of Relying Solely on the Civil and Political Rights Lenses

As clarified above, the merits of relying on civil and political rights to promote or measure democracy are obvious. Using only civil and political rights as a benchmark reduces democracy to nothing more than a political system with institutional framework for electing the ruler. It also reduces the significance of the rights to the freedoms of expression, assembly, association, or the very purpose of having an electoral and multi-party systems, or equality, inclusiveness and participatory rights. It makes one wonder why people have to choose a government which oppresses them or which shields their oppressors? If ‘less government’ is the formula for democracy, as suggested by normative individualism, then there is no government ‘for the people’ and what is in place is a government for the politically and economically dominant social groups.

The point in recognizing the freedoms of expression, association, assembly and voting rights is to enable people to secure their basic human needs – such as work, access to health or educational services, freedom from discrimination and corruption, and inclusion in social life. When people collect information and exchange views with others and use their voting rights during elections, what motivates them to exercise these rights is to secure their aims linked to survival rather than for sake of exercising rights and freedoms. If there were no government that is ready to help them achieve these goals and to respond to their collective needs, then the exercise of these political rights would have mainly symbolic significance. Unfortunately, this is why voting turnout are dwindling in many places because the citizens see no point in taking advantage of these opportunities. When they feel that there no government for them they lose confidence in democracy.

Civil and political rights are also being used in many places to threaten democracy. Example of this includes the protection that is given to the rights of individuals and groups who promote Neo-Nazi, Neo-Fascist and White Supremacy ideologies. After decades of tolerance to the freedoms of expression, assembly, association and voting rights of the members of these kinds of organizations, these groups are now poised to challenge the traditional political parties and to win political elections through democratic means. Some of these political parties are already accommodated in the process of governing in some of the Western countries. The Covenant on Civil and Political Rights clearly prohibits, in article 20 (2), “advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence”. Yet, in these countries the protection of the political rights of these kinds of organizations appear to be more important than protecting the social groups which they target and the values of democracy.

The reliance on the lenses of civil and political rights to measure democracy in the multi-ethnic countries of the Third World also highlights challenges to democracy. In many of these countries, where the states are weak and unable to meet the needs of their citizens, individuals exercise their civil and political rights by promoting the economic, political, social and cultural interests of their own communities. This ‘self-centered’ or localized approach to the exercise of civil and political rights perpetuates narrow collecting thinking, exacerbating group rivalries and tensions instead of facilitating nation-building and displaying loyalty to the state. Some use these rights to mobilize for autonomy or self-rule for their linguistic, cultural or religious groups. If these ways of exercising civil and political rights are not checked, there is a risk that the socio-political fabrics of these states will be torn apart. This tendency is less visible in the developed Western countries because their states are strong and able to meet the needs of their citizens and because their ways of life are more compatible with normative individualism.

Applying the HRBA to Democracy: the Lenses of Economic, Social and Cultural Rights

Opponents of normative individualism prefer to see democracy promoted and measured by the extent to which the needs and interests of the political community, without neglecting marginalized social groups. This includes by considering efforts made by governments to address economic, social and cultural problems and to create the conditions necessary for the exercise of economic, social and cultural rights the members of the national community without discrimination. They dismiss the arguments used by the critics of economic, social and cultural rights to reject or belittle the legitimacy of these rights. These critics advance different reasons when rejecting these rights, including by stating that they are vaguely formulated in the laws and impractical, not least because of they cannot be claimed or because they entail high economic cost. The defendants of these are argue that if these same tests were applied to civil and political rights, they too would fail the test of legitimacy. As they see it, all rights are socially constructed and can be claimed if desired. They are also vaguely formulated and their realization entail cost one way or another.

The Universal Declaration of Human Rights recognizes both these sets of rights. The preambles of the two international covenants underscore the point that all these rights are derived from the needs of protecting the dignity and worth of human beings. Further, operative paragraph 5, part I of the 1993 Vienna Declaration on Human Rights makes it clear that civil, political, economic, social and cultural rights are “indivisible and interdependent and interrelated”. Thus, the UN cannot afford to ignore economic, social and cultural rights when it addresses issues of democracy issues. Under article 1 of its Charter the UN assumes the obligation to promote human rights, conditions for economic and social development and the respect for the rights of peoples to self-determination. Article 55 also mentions the obligations assumed by the UN to promote the ‘conditions’ that are necessary for ‘well-being’ and for promoting “higher standards of living, full employment, and conditions of economic and social progress and development”. When the UN meets these obligations, its members are expected to cooperate individually as well as collectively as pledged under article 56 of the Charter.

In the pursuit of these mandates, the UN adopted a range of human rights instruments recognizing economic, social and cultural rights. This is obvious from the provisions of the Universal Declaration of Human Rights, the International Covenant on Economic, Social and Cultural Rights, the Convention on the Rights of Migrant Workers and the different conventions prohibiting discrimination. The ILO, UNESCO, WHO and the regional organizations too have acknowledged the legitimacy of economic, social and cultural rights by adopting specific instruments and are seen actively engaged in promoting and monitoring their implementation.

The concern for economic, social and cultural questions has both individual and collective dimensions. Example of the latter is the manner in which the rights of peoples to self-determination is promoted, including by promoting the pursuit of economic, social and cultural development. When this group rights is achieved, the individual members of the national communities will be able to enjoy and exercise their economic, social and cultural rights. The right to development another group right that is recognized in the 1969 declaration on social progress and development, and the 1986 declaration on the right to development, as individual and group rights. The UN has been promoting both these two aspects of the right to development in the course of promoting democracy.

The specific economic, social and cultural rights which are recognized by the Universal Declaration of Human Rights include the rights to own property (art. 17) and to work (art. 23). By the latter, what is meant is not forced labor but work that is chosen or accepted freely by the person concerned. Moreover, this work should also be performed under “just and favourable conditions”, under conditions that guarantee fair wages and right to establish and join a trade union (art. 23). The social rights that are recognized include those which are necessary for a way of life which is indispensable for one’s dignity (Art. 22), the right to education (art. 26), and the right to “a standard of living adequate for the health and well-being of the individual … including food, clothing, housing and medical care” (art. 25).  In addition, recognition is also given to the right “to participate in the cultural life of the community” (art. 27).

The legal obligations of states to acknowledge and promote these economic, social and cultural rights are clearly mentioned in the Covenant on Economic, Social and Cultural Rights and the other conventions which protect vulnerable groups. For instance, article 2 of the Covenant on Economic, Social and Cultural Rights, requires the ratifying states are not only obliged to promote the full enjoyment of these rights by using the resources at their disposal. This requires formulating clear economic, social and cultural policies, strategies and adopting the necessary measures. Further, these states are required to ensure that there will not be discrimination in the enjoyment of these rights. The manner in which these obligations are discharged require the adoption of sound systems of governance. How states comply with these obligations is monitored by UN bodies and programmes (e.g. by the UNDP), by the treaty committees (e.g., the Committee on Economic, Social and Cultural Rights), the regional human rights bodies and by some of the specialized agencies. For instance, the ILO monitors work related rights, UNESCO monitors rights related to culture and education and WHO monitors rights relating to health. This is done by assessing the available statistical data, on the level of unemployment, school enrollment, infant mortality, malnutrition, and prostitution; as well as by considering how health services are promoted, the extent to which social security is provided, and the availability, affordability and accessibility of food, housing, water, cultural heritage sites and museums. All these monitoring bodies give special attention to how states comply with the requirements of promoting inclusiveness and effective participation. The cumulative effect of monitoring how these obligations are complied with promotes democracy in substance.

This is in no way intended to suggest that the road-map for promoting substantive democracy is strait forward and easy. The mere fact this area concerns governance creates tensions between this right-based approach to promote democracy and the principle of sovereignty. The UN cannot compel states to cooperate in implementing the policies which it advocates. This is why the UN itself denies that it uses a specific model of democracy. National deficits in the promotion of the economic, social and cultural rights can also be caused, at least in part, by external factors. A good example of this is imposition of Structural Adjustment Programs on developing countries by the World Bank and IMF, requiring these countries to reduce investment in the educational and health sectors. Engaging with globalization also requires deregulation, privatization, and weakening of trade unions. This means without international cooperation it may not be easy to resolve economic and social problems and hence the full realization of economic, social and cultural rights. It is therefore no wonder that article 28 of the Universal Declaration on Human Rights considers the creation of a just international order as necessary if human rights are to be fully realized.

Conclusion

Democracy and human rights are very appealing and politically sensitive complementary ideals, which people have both aspired to and fought for over the centuries. Paradoxically, while being universal ideals, they are also perceived and practiced differently. What makes them ideologically and politically contentious are disagreements over the nature of the human being, how s/he relates to the community and the state, what kind of individual rights and freedoms should be acknowledged and whether these rights should be subordinated to the interests of the community. Resolving the differences of opinion on these questions has always proved to be difficult because they are related to questions regarding the kinds of social and political systems and orders that humans should aspire to. Different political systems recognize or deny the legitimacy of different political, economic and social interests, and have different views on which rights and freedoms that should be protected. It is, therefore, no surprise that states, political actors and many writers have resigned themselves to simply agreeing to disagree. Rather than engaging in debate they dedicate themselves to glamorizing their own political systems, as the best model for democracy, and endlessly ridiculing or discrediting the systems used by their protagonists.

This, in part, is why the literature on democracy is in turmoil. It explains why democracy is equated with ‘legitimate rule’, ‘government of the people’, ‘the will of the people’ or ‘the rule by the majority’, ‘popular sovereignty’, ‘government by the people’, ‘government for the people’ or combinations of some or all of these. Although all these formulations legitimize power in the name ‘the people’, it is not always the case that all members of this ‘people’ are empowered by and benefit from the proposed political system. This is why some of these proposals are dismissed by their critics as symbolic or sham democracy or as democracy ‘in form’ only, while others are called ‘true democracy’ or ‘democracy in substance’.

The literal meaning of the term ‘democracy’, in Greek, is the rule, authority or government of the people. The ancient Greek city states are said to have used this political system of governance as a means of allowing the governed to rule themselves. In fact, not all the inhabitants of these city states were able to participate in political life. Slaves and women, for example, were now empowered to do so. Likewise, those who claim that modern democracy is linked to the experience of the American and French Revolutions are ignoring the fact that the beneficiaries of the ‘rights of man’ which were proclaimed by these Revolutions did not empower the slaves, women, indigenous groups or their colonial subjects. Democracy was more of an ideal for the people, rather than a political reality.

It is the emergence of the United Nations, with its mandates to promote human rights and the rights of people to self-determination, which led to the modern concept of democracy if this concept is to be understood in the sense of governance of the people as the word suggests. The road-map that was used to this effect was twisted since there were two traditional political currents that were competing to shape it. They were and still are normative individualism (the Liberal and Libertarian position) and collectivism (the Socialists, Social Democrats, Communitarians and traditionalists approaches). Navigating between these currents, the UN ended up by accepting something from both of them. On the one hand, it identified democracy as human rights by incorporating in article 21 of the Universal Declaration of Human Rights, and using the bottom-up approach later when the HRBA was developed by empowering the individual members of the political communities (in contrast to the restrictive model of promoting the historical ‘rights of man’ of few citizens). On the other hand, this organization proceeded by recognizing the existence of ‘peoples’ (demos), and by promoting their rights, including the right to self-determination and developing guidelines for how sound governance (cracy) should be promoted. This rights-based and double-sided approaches was intended to assure democracy in form as well as in substance. The former uses the lenses of civil and political rights and the latter is advanced by promoting economic, social and cultural rights, and the right to development and sound governance. This is what the professed goals of the Human Rights-Based Approach are about.

Because democracy has sensitive political, economic, social and cultural dimensions most states may well be unwilling to cooperate with the use of this HRBA to measure democratic conducts. This is in part because states incorporate a wide range of economic, social, political and cultural structures, making it difficult to use a single measurement tool for all cases. Further, as long as the principle of sovereignty permits states to refuse to ratify human rights conventions, serious doubts must arise regarding the legitimacy of using conventions which they have not accepted to measure their progress towards democracy. This, apparently, is why the UN relies on the Universal Declaration on Human Rights to promote the HRBA since this document, by contrast to the two international covenants, recognizes civil, political, economic, social and cultural rights as being inter-related and inter-dependent.

Endnotes

* Associate Professor, School of Global Studies, University of Gothenburg (Sweden). This paper represents a revised version of two earlier conference presentations. The first one, on “human rights, democracy and peace: the implications of the new challenges”, was presented in the workshop which was organized in Jyväskylä (Finland) in August 2017, by the Academy of Finland, the University of Jyväskylä, Kone Foundation and The Åland Islands Peace Institute. The second paper was presented in the winter session of the Nordic Summer University, in Copenhagen, earlier this year on the topic of “Dysfunctional Democracies, Empowerment and the Human Rights Based Approach”. I am grateful to the organizers of these two workshops for enabling me to benefit from these valuable academic gatherings. Special thanks goes Mogens Chrom Jacobsen, who was kind enough to invite me to workshops of the Nordic Summer University and to the Honorable, Reverend Doctor Ezra Gebremedhin for commenting on this manuscript.

[1] Vienna Declaration and Programme of Action, part. I, operative paragraph 8

[2] Ibid.

[3] Ibid.

[4] UN, Democracy, http://www.un.org/en/sections/issues-depth/democracy/index.html Seen on October 30, 2018

[5] Declaration on Social Progress and Development, A/Res/2542 (XXIV) 11 December 1969.

[6] Thesaurus, dictionary.com

[7] Cambridge Dictionary

[8] https://www.merriam-webster.com/dictionary/democracy

[9] Susan Marks,” The End of History? Reflections on Some International Legal Theses”, European Journal of International Law, Vol. 8, Issue 3, 1997 p. 449.

[10] https://www.merriam-webster.com/dictionary/democracy.

[11] Aristotle, Politics, trans. H. Rackham (Cambridge: Harvard University Press, 1959), Vol. 5, p. 403 (v.3-5).

[12] USHistory.Org, The Declaration of Independence, available from the web in,  http://www.ushistory.org/declaration/document/

[13] The History Guide, Declaration of the Rights of Man and the Citizen (August 1789), art. 2, in http://www.historyguide.org/intellect/declaration.html

[14] Article 2 of the 1958 French constitution.

[15] Jack Donnelly, “Human Rights, Democracy, and Development”, Human Rights Quarterly, Volume 21, Number 3, August 1999, p 615. See also Anthony H. Birch, The Concepts and Theories of Modern Democracy. Routledge London, 1993 (1996 reprint), p. 45. In the view of the latter, democracy is about form, i.e. the existence of political institutions. and not a question of substance, i.e. whether or the community as a whole governs itself. “The idea that there was a classical doctrine of democracy is,” he wrote, “in fact, a most unhelpful piece of nonsense”. Ibid., p. 52.

[16] Webster’s Encyclopedic Unabridged Dictionary of the English Language (New York: Gramercy Books, 1989); The Oxford Illustrated Dictionary (Oxford: Clarendon Press, 1975); Jewett’s Dictionary of English Law, Vol. 2 (London: Sweet and Maxwell Ltd., 1977); and A Dictionary of Modern Legal Usage, 2nded., Bryan A. Garner (Oxford University Press, 1995).

[17] Cassell’s Latin Dictionary, D.P. Simpson (New York: Macmillan, 1957).

[18] Ballentine’s Law Dictionary, 3rded., William S. Anderson ed., (Rochester: The Lawyers Cooperative Publishing Co. 1969): Black’s Law Dictionary, Bryan A. Garner ed., 7th ed., (St. Paul: West Group, 1999).

[19] Black’s Law Dictionary

[20] Samuel Pufendorf, De Jure Naturae et Gentium Libri Octo, Vol. 2, C.H. Oldfather & W.A. Oldfather, trans. 1688 ed. (New York: Williams S. Hein & Co., 1995), p. 1367.

[21] I. Kant, “The Science of Right,” in Great Books of the Western World, R. M. Hutchin et al(eds.),  (Chicago: Encyclopaedia Britinnica, Inc., 1952), Vol. 42, pp. 436 and 452.

[22] L. Oppenheim, International Law: A Treatise, Vol. I – Peace, 7th ed., H. Lauterpacht, ed., (London: Longmans, Green and Co., 1948), p, 114, §64.

[23] 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), p. 312.

[24] John Stuart Mill, “On Liberty, representative Government & Utilitarianism”, in Great Books of the Western World, Robert Maynard Hutchins, et al(eds.), (Chicago: Encyclopaedia Britannica, Inc., 1952), Vol. 43, p. 269. Emphases original.

[25] 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.}), p. 86.

[26] Ibid.,pp. 84-86 & 99-100.

[27] Ibid.,pp. 85-88 & 101-102, and 116.

[28] 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, pp. 26-27.

[29] Ibid.,pp. 28-29.

[30] Ibid., pp. 26-30, & 46-47.

[31] 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)

[32] Ibid.,pp. 435 & 437.

[33] Ibid., p. 436.

[34] Jean-Jacque Rousseau, The Social Contract and Discourses, G.D.H. Cole, trans. (London: J.M. Dent and Sons Ltd., 1913, 1977 prt), p. 193.

[35] Ibid., p. 15. See further 41, 165, 170-1.

[36] Karl Marx, Early Writings, translated by Rodney Livingstone and Gregor Benton, Middlesex: Penguin Books, Ltd., 1975 (1977 prt.). 350.

[37] Ibid., p. 349.

[38] Ibid.

[39] Ibid., pp. 229-230.

[40] Ibid., p. 230.

[41] Karl Marx “Critique of Hegel’s Doctrine of the State” in Early Writings, Rodney Livingstone trans. (London: New Left Review, 1975, 1977 prt.) p. 194.

[42] Karl Marx, “The Charists”, in Surveys from Exile:  Political Writings, David Fernbach, ed. (London: New Left Review, 1973), p. 194. p. 265.

[43] See the letter of Marx to Engels, 11 February 1865, in K. Marx, F. Engels and V. I. Lenin, Selected Correspondence (Moscow: Progress Publishers, 1975), p. 153. See also the 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.

[44] Karl Marx, Early Writings, pp. 232 and 234.

[45] Ibid., pp. 232-4.

[46] See V.I. Lenin, Collected Works, Bernhard Isaac, trans (Moscow: Progress Publishers, 1964, 1977 prt.), Vol 20, 1913-14, pp. 401-2 & 412; and, The Rights of Nations to Self-determination (Moscow: Progress Publishers, 1951,1971 prt) Progress Publishers, translation.

[47] Ayn Rand, The Virtue of Selfishness: A New concept of egoism (New York: The New American Library, 1962{1964}), p. 32. Any Rand, whose original name was Alisa Zinovyevna Rosenbaum, left Russia when she was 26, disappointed by what the Bolshevik Revolution had done to her country.

[48] Ibid., p. 123.

[49] Ibid. p. 33.

[50] Ibid. p. 32.

[51] Ibid. p. 34.

[52] Ibid. p. 122. Original italic.

[53] Ibid. p.126.

[54] Ibid. p. 124.

[55] Ibid. p. 137.

[56] Ibid. p.130.

[57] Ibid. p.131.

[58] Ibid. p. 134.

[59] According to Fernando Teson, liberalism is “a theory of politics founded upon individual freedom, respect for individual preferences, and individual autonomy”, Fernando R.  Teson, “Kantian Theory of International Law”, Columbian Law Review, Vol. 92, 1992, p. 54, note 4. This position considers the end of governments and states to the protection of the rights and interests of individuals, and traces its root to the works of Kant in his essay on Perpetual Peace. Ibid., p. 54. For Anthony Arbaster, “Liberalism was inaugurated by the French Revolution. Anthony Arbaster, Liberalism and postmodernism”, in James Meadowcroft, ed. The Liberal Political Tradition: Contemporary Reappraisals (Cheltenham: Edward Elgar, 1996), p. 162.

[60] Jack Donnelly, Universal Human Rights in Theory and Practice (Ithaca: Cornell University Press, p. 20. Note that this Donnelly does not dismiss the idea that rights can be exercised collectively, p. 21.

[61] Ibid. p. 70.

[62] Ibid. p. 69.

[63] Ibid. p. 21.

[64] Ibid. p. 69.

[65] Ibid.

[66] Marks, Susan. “The End of History? …, p. 470. According to Birch there never was “a classical doctrine of democracy” to speak of. See Birch, note 15 above. For views defending democracy in substance see, Cerena, M. Christina. “Universal Democracy: An International Legal Right or the Pipe Dream of the West?” New York Universal Journal of International Law and Politics, Vol. 27, 1995, p. 126.

[67] Donnelly, Universal Human Rights, p. 73.

[68] Ibid. p. 103.

[69] Ibid. p. 87.

[70] Will Kymlicka, Liberalism, Community and Culture(Oxford: Clarendon Press, 1989), p. 254.

[71]  Ibid., p. 4.

[72]  Ibid. p. 254.

[73] Ibid.

[74] Birch, p., 133.

[75] Michael Waltzer, “The Communitarian Critique of Liberalism”, in Amitai Etzioni, ed., New Communitarian Thinking: Persons, Virtues, Institutions, and Communities (Charlottesville: University Press of Virginia, 1995), pp. 62-63. This writer wonders where this ‘solitary’ and ‘heroic’ individual which Liberal intellectuals write about comes from, since it appears that s/he “is fully formed before the confrontation begins.” p. 68.

[76] Brian Lee Crowley, The Self, the Individual, and the Community (Oxford: Clarendon Press, 1987), pp. v, and 255.

[77] Ibid., , p. vi. Liberals “require us to conceive of ourselves in ways which conflict with our understandings of reason and responsibility” he added, “and therefore conflict with our deepest moral sense”. Ibid.,  p. 220.

[78] Ibid., p. 281.

[79] Ibid., citing Michael J. Sandel, Liberalism and the Limits of Justice (Cambridge: 1982) p 132.

[80] Alasdair MacIntyre, After Virtue (London: Duchworth, 1981{2007}) 3rd ed. p. 220.

[81] Jean Bethke Elshtain “The Communitarian Individual”, in Amitai Etzioni, ed., New Communitarian Thinking…, p. 108.

[82] Alex Thomas,An Introduction to African Politics, 4th ed. (New York: Routledge, 2000{2016}), p. 254.

[83] Martti Koskenniemi, “Intolerant Democracies: A Reaction”, Harvard International Law Journal, Winter, Vol. 37, 1996, p. 234.

[84] 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..

[85] Ibid., p. 221.

[86] Ibid., p. 159

[87] J. Bentham, An Introduction to the Principles of Moral and Legislation (Oxford: Clarendon Press, 1789 {1823 prt.}), p. 4.

[88] 1814 Constitution of Norway, see https://www.stortinget.no/en/Grunnlovsjubileet/In-English/The-Constitution—Complete-text/

[89] 1848 Liberian Declaration of Independence, see, Declaration Project, in http://www.declarationproject.org/?p=181

[90] Constitution of Mexico, 1917, in LatinAmericanStudies.org, in http://www.latinamericanstudies.org/mexico/1917-Constitution.htm

[91] 1937 Constitution of Ireland, in, Wikisource, https://en.wikisource.org/wiki/Constitution_of_Ireland_(original_text)

[92] U.S. Congressional Record, Vol. 54, Senate, p. 2, pp. 1742-1743.

[93] “British Labour’s Message to the Bolsheviki”, New York Times Current History. February1918, pp. 206-7.

[94] Eyassu Gayim, The Principle of Self-Determination: A Study of Its Historical and Contemporary Legal Evolution.Norwegian Institute of Human Rights, Publication no. 5, 1980, pp. 12-15.

[95] Franck, Thomas M. “The Emerging Right to Democratic Governance,” American Journal of International Law, Vol. 86, 1992, pp. 46-91.

[96] Resolution 217 C(III), which was adopted at the same time as the Universal Declaration on Human Rights made it clear that “United Nations cannot remain indifferent to the fate of minorities” and will deal with this matter later after a thorough study was made concerning the problem.

[97] Resolution 421V (D) of 4 December 1950.

[98] Resolution 545 (VI) 5 February 1952 and 549 (VI) 5 February 1952

[99] Resolution 637(VII) 20 December 1952

[100] Resolution 421 (V), E preamble 4 December 4, 1950

[101] Ibid, E. operative paragraph 7.b.

[102] Operative paragraph 13, 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).

[103] Vienna Declaration and Programme of Action Part I, operative paragraph 5.

[104] UNICEF, Human Rights-Based Approach to Programming, https://www.unicef.org/policyanalysis/rights/index_62012.html

[105] The Rio Declaration on Environment and Development, principles 1, 20 and 22 in UN Doc. A/Conf.151/26, Vol. 1, 1992 annex in http://www.un.org/documents/ga/conf151/aconf15126-1annex1.htm

[106] Vienna Declaration and Programme of Action Part I, operative paragraph 10

[107] http://www.unsystem.org/tags-hlcp/human-rights

[108] http://www.unsystem.org/content/2005-world-summit-outcome-human-rights-democracy-and-rule-law; &  http://www.unsystem.org/tags-hlcp/human-rights

[109] Vienna Declaration and Programme of Action Part I, operative paragraph 5.

[110] UN HRBA Portal, The Human Rights Based Approach to Development Cooperation: Towards a Common Understanding Among UN Agencies, http://hrbaportal.org/the-human-rights-based-approach-to-development-cooperation-towards-a-common-understanding-among-un-agencies

[111] Vienna Declaration and Programme of Action Part I, operative paragraph 5.

[112] See, Yearbook of the United Nations, 1952, p. 560, and also General Assembly, 10th session, Third Committee 669 mtg. p.226, para. 13.

[113] See UN Doc, E/2256, p. 7. Commission of Human Rights 8th session, April 14 to 16 June 1952, in Commission on Human Rights, Official Records, Report of the Eighth Session, Economic and Social Council, 14th session, Supplement no. 4. 1952.

[114] Declaration on Social Progress and Development, General Assembly resolution 2542 (XXIV) 11 December 1969.

[115] Permanent Sovereignty over Natural Resources, General Assembly resolution 1803 (XVII) 14 December 1962.

[116] Declaration on the Right to Development, General Assembly resolution 41/128, 4 December 1986, annex.

[117] Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities, General Assembly resolution 47/135, 18 December 1986, annex.

[118] Declaration on the Rights of Indigenous Peoples, General Assembly resolution 61/295 of 13 September 2007, annex, arts. 3 & 4.

[119] Ibid., articles 11 – 14, 20, 25-26 and 31.

[120] E/1992, annexes IV, section, page 35. See also the Yugoslavia draft resolution in UN Doc.E/1992, annex IV, section A, article 10 b, p. 35, cited in the debate in the Commission of Human Rights 8th session, April 14 to 16 June 1952, Official Records, Report of the Eighth Session, Economic and Social Council, 14th session, Supplement no. 4. NY, UN, E/2256, p. 54.

[121] Allen Rosas, “Article 21”, in, Asbjorn Eide, Gudmundur Alfredsson and el al, eds., The Universal Declaration of Human Rights: A Commentary. Scandinavian University Press, 1993, p. 299.

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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.

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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.