Solidarity rights: universality and diversities 
Solidarity rights: universality and diversities
Zoltan Vig
SOLIDARITY RIGHTS: UNIVERSALITY AND DIVERSITIES
The oposition between the individual and the community is one of the
central themes in the non-Western cultural criticue of international human
rights.[1]
Throughout the centuries concepts of human rights and fundamental freedoms
provided that the beneficiaries of those rights and freedoms are individual
human beings in whom these rights inhere inalienably by virtue of their
humanity, and the dignity and integrity to which that characteristic entitles
them.[2]
For long, one of the key features of human rights thinking was the centrality
of the dignity and well being of individuals. On the other hand, man is a
„social animal“, and individual human rights have collective interests as
legitimate restriction grounds. Moreover, such interests may impose duties on
individuals. Some scholars argue that most human rights have a collective aspect.[3] Some human rights are intended on the
protection of an individual’s capacity for relating with others (the freedom of
expression, the freedom of assembly, etc.). In relation with the state’s
obligation to implement human rights, most of the rights are collective as they
can be implemented by means of general measures only. Some of the
human rights are ascribed to special groups of human beings – such as children,
women, prisoners, etc. -
but still they belong to individual members of a group, rather than to the
group itself as a hypothetical entity.
However, the solidarity
rights are difficult to reconcile with the classical theory, as they are held
not by individuals, but by collective subjects (“peoples”). They are frequently
referred to as “third generation” rights. Karel Vasak, former director of the
Division of Human Rights and Peace of UNESCO, began to use these terms at the
end of 1970s. According to his explanation, after the first generation of
negative civil and political rights, and the second generation of positive
economic, social and cultural rights a new third generation of rights receives
international recognition. These rights are the so-called rights of solidarity
as they can be brought through only by joint activity of all social actors –
individuals, state, public and private bodies, and the international community.
Using the terminology of the French Revolution of 1789, the first generation of
rights implies freedom, the second generation equality, and the third
generation (the solidarity rights) – fraternity.[4] This model can be considered a simplified
expression of a very complicated historical advance. It does not indicate a
linear progression in which every generation of rights appears changing the old
one, and disappears with the emergence of the next generation of rights. It
also does not suggest that one generation of rights is more important than
another is. The three generations are implied to be “cumulative, overlapping… interdependent and interpenetrating.”[5]
This triad of democracy, development, and human rights reflects the fundamental
conditionality of social and individual life and progress.[6]
The “third generation” rights proposed by Vasek include the right to
development, the right to peace, the right to a healthy and balanced
environment, the property right of the common heritage of mankind, and the
right to humanitarian assistance.[7]
Nowadays the range and
classification of collective rights is questionable. Some commentators
distinguish particular rights as such - for example, the rights to
self-determination, liberation and equality, the right to international peace
and security, the right to use of wealth and resources, the right to
development, the right to environment and the minority rights.[8]
Others use classifications of collective rights, distinguishing
for example: - “nationalist” collective rights, which imply the group of
rights, which in some respect deal with the existence and cultural or political
continuation of groups (e.g. the right
to self-determination),[9]
and other collective human rights;[10]
- or collective human
rights reflecting demand for a global
redistribution of power, wealth, and other important values or capabilities
(the right to political, economic, social, and cultural self- determination,
the right to economic and social development, the right to participate in and
benefit from "the common heritage of mankind"), and the rights
suggesting the impotence or inefficiency of the
nation-state in certain critical respects (the right to peace, the right to a
healthy and sustainable environment, and the right to humanitarian disaster
relief).[11]
In the following I will discuss those rights which are recognized by the
majority of commentators.
The principle of “equal
rights and self-determination of peoples” is cited in the United Nation’s
Charter (UNCH) 1 (2) as a basis for friendly relations among nations. This
principle is also declared to be one of the four purposes of the UN.[12] Throughout its existence, the UN has
undertaken and supported many measures to promote and protect the right to
self-determination, especially in encouraging and accelerating the grant of
independence to colonial countries, trust territories and other
non-self-governing territories, 75 of which became independent between the
entry into force of the UNCH in 1945 and the end of 1977. As one of those
measures this right is incorporated into the International Covenant on Civil
and Political Rights (ICCPR) and the International Covenant on Economic, Social
and Cultural Rights (ICESCR). Both of these documents (article 1(1))
identically provide this right:
“All peoples have the
right of self-determination. By virtue of that right they freely determine
their political status and freely pursue their economic, social and cultural
development.”[13]
In the probably most progressive document
concerning collective human rights - the 1981 African Charter on Human and
Peoples’ Rights (ACHPR)[14]
(article 20) – the right to self-determination is complemented with the “right
to existence” and the further right to liberation “from the bonds of
domination”, means for liberation being unrestricted, except for recognition of
such “by the international community”. Moreover, the ACHPR declares a right to
assistance from the other State Parties in any “liberation struggle against
foreign domination”. The right of self-determination under the ICCPR and the ACHPR
is absolute and immediate and non-derogable in any circumstances.
There is an opinion,
that “self-determination has been the single
most powerful legal concept shaping the world since the World War II”; being,
however, at the same time very strongly affected by economic self-efficiency.[15]
The right of a group
to existence is
generally protected by the prohibition of genocide and apartheid.
Article II of the Convention on the Prevention and Punishment of the Crime of
Genocide[16]
defines genocide as “acts committed with intent to destroy, in whole or in
part, a national, ethnical, racial or religious group as such”. The
International Convention on the Suppression and Punishment of the Crime of
Apartheid relates the definition of the crime both to acts against individuals
and to acts against groups. For example, article II (c) tells about “measures
calculated to prevent a racial group or groups from participation in the
political, social, economic and cultural life of the country”.[17]
The right not to undergo group-based
discrimination, granted to individuals, is frequently cited as an example
of a collective right. This viewpoint finds support in many international human
rights instruments. The most important example is the International Convention
on the Elimination of All Forms of Racial Discrimination.[18]
In particular, the State Parties under this convention have an obligation “to
engage in no act or practice of racial discrimination against persons, groups
of persons or institutions” (article 2 (a)). Even so, that these provisions are
formulated as state obligations, rather than as collective or individual human
rights, “their result is a recognition of the rights of groups.”[19]
The protection of
minorities, reflecting the needs of minorities and groups as
collectives,[20]
is the oldest illustration of collective rights’ protection. Since the
seventeenth century international treaties included provisions guaranteeing
certain rights to religious minorities. Examples are the Treaty of Westphalia
(1648), granting religious rights to the Protestants in Germany; the Treaty of
Olivia (1660), in favour of Roman Catholics in Livonia, ceded by Poland to
Sweden; the Treaty of Ryswick (1697), protecting Catholics in territories ceded
by France to Holland, and the 1763 Treaty of Paris between France, Spain and
Great Britain, protecting Catholics in Canadian territories ceded by France.[21]
After the First World War the system of minority rights protection was
established by the League of Nations. By means of special provisions in peace
treaties this system provided for securing of legal equality for individuals
belonging to minorities, as well as preservation of the group identity and
traditions of minorities.[22]
After the Second World War to the protection of minorities was applied rather
an individual human rights approach. In the first place minority rights are
secured trough the prohibition of group-based discrimination. In the second
place, the ICCPR includes a special provision on the rights of individuals
belonging to minorities serving as a starting point for further international
and domestic legislation:
“In those States in which
ethnic, religious or linguistic minorities exist, persons belonging to such
minorities shall not be denied the right, in community with the other members
of their group, to enjoy their own culture, to profess and practice their own
religion, or to use their own language.” (article 27).[23]
Modern human rights
development makes clear the movement in favour of collective rights for
minorities. However, in most international and domestic human rights
instruments these rights are declared alongside with rights of individual
members of minority groups without any distinction. Examples are the Council of
Europe’s 1995 Framework Convention for the Protection of National Minorities[24];
the 1993 Vienna Declaration;[25]
the 1978 UNESCO Declaration on Race and Racial Prejudice;[26]
the 1992 Declaration on the Rights of Persons Belonging to National or Ethnic,
Religious or Linguistic Minorities.[27]
As a particular minority
rights category can be considered the rights of indigenous peoples,[28]
as historically the indigenous population was the target of discrimination.[29]
Compared with minority rights, rights of indigenous people are more often to
encounter in domestic legislation[30]
and more readily recognized as group rights[31]
than minority rights. For example, the 1994 United Nations Draft Declaration on
the Rights of Indigenous People declares to be “collective rights” many of the
rights included in the Declaration.[32]
An exception in this tendency is the Vienna Declaration referring to “the
rights of indigenous people”, not peoples.[33]
A group of so called
collective cultural rights implies an individual’s right in community with
others to take part in cultural life. This right is recognized in the 1966
UNESCO Declaration of the Principles of International Cultural Co-operation[34]
and separately protected in ICESC[35]
15 (1)(a). The right to profess and practice a religion in community with
others is declared in ICCPR[36]
18 (1). Surprisingly, the right to use a language is provided by neither of
them.[37]
The right to the common heritage of mankind is included in the UNESCO Draft
Declaration on the Safeguarding of Future Generations of 1997.[38]
This right is supposed to be more comprehensive than other cultural rights. It
provides every individual, in community with others, with the right to share
“Earth and space resources, scientific, technical, and other information and
progress, and cultural traditions, sites, and monuments.”
The
collective right to
peace and security or “the right to life in peace” is declared as a right of
“every nation and every human being” in the Declaration on the Preparation of
Societies for Life in Peace, adopted by the UN General Assembly in 1978[39].
The Declaration on the Right of Peoples to Peace, adopted by the UN General
Assembly in 1984[40]
(§ 1) “solemnly proclaims that the peoples of our planet have a sacred right to
peace.”
The right to use of wealth and resources or
the right to sovereignty over natural resources might be described as an
economic counterpart of the right to self-determination. There is an opinion
that the permanent sovereignty of peoples and nations over their natural
resources is a component of the “principle of equal rights and
self-determination of peoples” declared in the UN charter (article 1).[41]
This right is formulated
in article 1 (2) of the ICCPR and the ICESCR as follows:
“All peoples may, for
their own ends, freely dispose of their natural wealth and resources without
prejudice to any obligations arising out of international economic co-operation,
based upon the principle of mutual benefit, and international law. In no case
may a people be deprived of its own means of subsistence”.
Moreover, the article 47
of the ICCPR and the article 25 of the ICESCR state:
“Nothing in the present
Covenant shall be interpreted as impairing the inherent right of all peoples to
enjoy and utilize fully and freely their natural wealth and resources”.
In the most completed form this right is
declared by the article 21 of ACHPR.[42]
All the above mentioned documents limit the right to sovereignty over natural
resources by “obligations arising out of international economic cooperation”
and by international law.
One of the most significant collective
rights - the right to development, according to some
commentators, is “difficult to define as a human right”, because it rather
“tends to suggest the presence of certain conditions conducive for human rights
”.[43]
The origin of this right is tracked back by some authors to the 1944
Declaration of Philadelphia,[44]
adopted by the General Conference of the International Labor Organization,
which stated, that “all human beings, irrespective of race, creed or sex, have
the right to pursue both their material well-being and their spiritual freedom
in conditions of freedom and dignity, of economic security and equal
opportunity”.
The right to development
as a human right was launched by Keba M’Baye, that time Chief Justice of Senegal,
in his inaugural lecture on that subject to the 1972 study session of the
International Institute of Human Rights in Strasbourg. In 1986 the General
Assembly adopted the United Nations key document in this field - the
Declaration on the Right to Development setting up the right to development as
“an unalienable human right”.[45]
The Vienna Declaration and the Programme of Action (articles I/10-11 and
II/72-74) states this right as “a universal and inalienable right and an
integral part of fundamental human rights”.[46]
However, the most commentators agree, that this right doesn’t really have any
enforceable means of implementation except for in the regional ACHPR system.[47]
The right has been discussed broadly in recent years.[48]
Partly, because the economic circumstances in many countries are such, that
their inhabitants’ rights are violated steadily, and partly also because some
programs for the economic development of these countries may themselves result in
deprivation of human rights.[49]
There is no generally agreed definition of the nature or scope of the right to
development in the context of human rights. Many authors agree with the collective
nature of this right[50],
however, the right to development might be considered as being both of
collective and individual nature.[51]
The UN Declaration on the Right to Development defines the right to development
as right to participate in, contribute to, and enjoy economic, social, cultural
and political development, in which all human rights and fundamental freedoms
can be realized;[52]
So, the right to development is supposed to have not only economical and social
dimensions, but cultural and political as well.[53]
Ñòðàíèöû: 1, 2
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