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It is a common observation that human
beings everywhere demand the realization of diverse values to ensure their
individual and collective well-being. It also is a common observation that these
demands are often painfully frustrated by social as well as natural forces,
resulting in exploitation, oppression, persecution, and other forms of
deprivation. Deeply rooted in these twin observations are the beginnings of what
today are called "human rights" and
the legal processes, national and international, associated with them. |
인권 (人權, human rights)
사람이 사람답게 살기 위해 필요한 것으로서 당연히
인정된 기본적 권리(→ 기본적
인권).
인권에는 모든 개인에게 보편적으로 해당하는 광범위한
가치들이 포함된다. 인권의 개념은 헬레니즘 시대의 스토아
학파의 자연법 사상에서 유래했다. 스토아 학파는 모든
창조물에는 어떤 보편적인 힘이 스며들어 있기 때문에
인간의 행동은 자연법과 '만민법'(jus gentium)에 따라
평가되어야 한다고 보았다. 만민법은 로마 시민의 권리를
넘어서는 보편적인 권리들을 담은 것으로 노예와
농노에게도 적용되었다.
인권이 보편적인 사회적 요구와 현실로 받아들여진 것은
르네상스기에서부터 17세기에 이르는 기간이었다. 토마스
아퀴나스, 그로티우스의 저술과 마그나 카르타, 권리청원(1628),
영국의 권리장전(1689) 등은 "모든 사람은 태어나면서부터
타인에게 양도할 수 없는 고유한 권리를 가지고 있다"는
천부인권(天賦人權) 사상을 반영하고 있었다.
자연권으로서의 자연법 사상은 데카르트·라이프니츠·스피노자·베이컨
등 17~ 18세기 사상가들에 의해 발전되었다. 특히 자연법
사상은 영국의 철학자 로크의 저작과 디드로·볼테르·몽테스키외·루소의
저작에서 뚜렷이 나타났다. 인권의 개념은 18~19세기
절대주의에 대한 투쟁에 의해서 더욱 발전되었다. 이 시기에
제퍼슨과 라파예트가 정교화한 자유의 개념은 프랑스
혁명의 인권선언(1789), 권리장전(1791), 미국의 헌법(1787) 등
여러 역사적인 문헌에 나타나 있다. 인권의 기초로서의
자연법 사상은 18세기에 버크, 흄 등과 공리주의의 창시자인
벤담에 의해 비판을 받았다. 자연법 사상에 대한 공격은 밀·자비니·메인·오스틴·비트겐슈타인
등에 의해 20세기초까지 계속되었다. 그러나 인권사상은
노예제의 폐지, 노동법의 제정, 공공교육 실시, 노동조합의
인정, 보통선거권 실시 등 다양한 형태로 표현되었다.
인권의 존재에 대해서는 이론의 여지가 없지만 인권의
본질과 범위는 여전히 논란의 대상이 되고 있다. 예를 들어
인권의 원천, 인권이 보장될 수 있는 방법과 인권의 한계,
또한 인권이 과연 양도할 수 없는 천부적인 권리인가 하는
것 등이 지속적인 논쟁점이 되고 있다.
20세기에 이르러 모든 인간은 일정한 기본적인 권리를
부여받았다는 일반적인 합의에 기초해 국제적인
인권선언들이 마련되었다. 국제연합(UN) 헌장에서는 "인종·성·언어·종교에
상관없이 인간의 권리와 기본적인 권리를 존중하고 준수할
것"을 서약하고 있다. 1948년 UN 총회에서는
세계인권선언을 의결하고 이러한 내용을 다시 한번
확인했다. 이밖에 다른 국제기구에서도 인권에 대해
지속적인 관심을 기울였다. 예를 들어 유럽
안전보장협력회의가 1973~75년 헬싱키에서 회의를 갖고
헬싱키 선언을 발표한 것을 비롯하여, 인권과 기본적 자유의
보호를 위한 유럽 회의의 시민권과 정치적 권리를 위한
국제규약 및 유럽 사회헌장, 제9차 범아메리카 회의의
인간의 권리와 의무에 관한 선언(1948), 아프리카 통일기구의
아프리카 인권헌장(1901) 등 국제인권선언들이 발표되었다.
1980년대에는 각국의 사법기관에서 국제적 인권을 보장하는
것과 같은 인권 옹호를 위한 새로운 방법이 시도되었다.
국제기구 이외에 민간조직에서도 인권 옹호를 위해
활동하고 있는데, 국제사면위원회(1961 설립) 같은
조직에서는 사상의 자유, 종교의 자유, 언론의 자유 등을
침해한 사례들을 수집해 자료집을 발간하고 있다.
기본적
인권 (基本的人權, Grundrechte).
인간이 살아가는 데 불가결한 기본적인 권리.
기본권·자연권·인권이라고도 하며 헌법이 보장하는
권리로서 단순히 법률에 의해서 규정되는 권리보다도
우위에 선다. 형식적인 의미의 기본권, 즉 헌법에 명시되어
있는 기본적 인권은 성질이 다른 각종의 권리를 포함하고
있는데, 원래 단일한 성격을 가졌던 근대적 기본권이 시대의
변화에 따라서 의미가 확장되었기 때문이다.
형성과정
"모든 사람은 태어나면서부터 타인에게 양도할 수
없는 고유한 권리를 가지고 있다"는 천부인권(天賦人權)
사상이 정립된 것은 18세기말의 시민혁명 이후의 일이었지만,
이와 같은 근대 자연법론의 모태는 플라톤과
아리스토텔레스의 철학, 헬레니즘 시대의 스토아학파,
중세의 토머스주의 등 전통적인 자연법 사상이었다.
그로티우스·홉스·로크·루소 등 근대 자연법 이론가들은
이성과 사변의 토대 위에서 전통적 자연법이 갖는 자연
중심적, 신 중심적 성격을 세속화시켰다.
세속화된 자연법사상은 시민계급(부르주아지)의 혁명을
유발했다. 봉건적 사회구조의 모순으로부터 개인의 자유와
권리를 확보하기 위해서는 혁명이라는 수단이 불가피한
것처럼 보였다. 시민혁명에는
사상과 이론 이외에도 현실의 권력역학관계가 반영되어
있었다. 중세말의 격변기 이후 경제적·사회적 지위를
향상시켜온 시민계급은 절대주의 체제하에서 정치적으로
만족할 만한 위상을 가지지 못했기 때문에 전근대적
구제도를 타도하기에 이르렀다. 자유, 자연법, 기본적 인권
등 혁명이 남발한 구호들은 일반대중이 아니라 주로
부르주아적 이익을 위해 표방되었다.
시민혁명의 양상은 각국의 구체적인 사정에 따라 차이를
보였으나 기본적 인권의 형성에 가장 크게 기여한 것은
미국독립혁명과 프랑스 혁명이었다. 국가권력구조를
형성하고 명문의 규정으로 국가권력의 한계를 설정한
양국의 시민들은 절대적인 권력으로부터 스스로의
자유영역을 확보했다. '인간과 시민의 권리선언', 버지니아
주 헌법, 1791년의 미국 헌법 부가조항 등은 시민계급이
확보한 기본적 인권을 천명한 것들인데 여기에는
천부인권사상 및 사회계약론적·국민주권론적 국가관이
공통분모를 이루고 있었다.
기본적 인권은 크든 작든 시민혁명이 완수된
사회에서만이 실현될 수 있었다. 시민혁명이 실질적으로
완성되지 못한 국가에서는 시민의 자유를 보장하는 법제가
형성·발전되었다고 하더라도 진정한 의미에서 기본적
인권의 보장이 이루어졌다고는 할 수 없었다. 현실적으로
기본권을 쟁취할 수 있는 능력이 없이 다만 법규범의
범위에서만 보장되고 있는 시민의 자유는 또다른 법률에
의하여 박탈되거나 제약될 수 있기 때문이다.
발전과정
시민혁명의 과정에서 형성된 기본적 인권은 '국가로부터의
자유'를 내용으로 했으며, 그 사상적 기초는 개인과 사회의
번영은 자유로운 경제활동과 정신활동을 통해서만이 확보될
수 있다는 개인주의 및 자유방임주의 이데올로기였다.
자본주의는 국가로부터의 자유가 보장되자 급속히
파급되었다. 그러나 자본주의가 산업혁명을 거쳐 성숙기에
이르자 노동문제를 비롯한 여러 사회문제들이 발생하게
되었고, 국가로부터의 자유는 도리어 부정적인 역할을 하기
시작했다. 이를테면 노동조건을 개선하기 위하여 국가가
개입하는 것은 노동자와 사용자 간의 계약의 자유를
침해하기 때문에 금지되어야 한다는 주장이 나타났던
것이다. 이 경우에 사용자측에서는 계약의 자유가
명실상부한 자유로 되었지만 노동자에게는 이러한 형식상의
자유란 오히려 실질적인 부자유를 초래할 따름이었다.
여기에 자본주의의 일반적인 폐해를 시정하고 인간의
기본권을 실질적으로 보장하려는 움직임이 나타났다. 다시
말하면 국가권력이 기본적인 생활의 보장을 위해서
경제과정에 개입해야 하며 국민은 누구나 기본적인
생활권을 보장받아야 한다는 인식이 팽배해진 것이다. 제1차
세계대전 이후 사회문제가 만성화되자 이러한 인식은
법제상으로 표현되기에 이르렀다. 바이마르
헌법은 처음으로 국민의 생활권을 기본적 인권으로
선언했으며 경제활동의 자유를 제한적으로 규정하고
노동자의 단결권이나 노동권·생존권 등을 새로운
기본권으로 받아들였다. 이른바 수정자본주의적인
복지국가의 이념은 오늘날 대부분의 헌법에 그대로
반영되어 있다.
내용 및 분류
오늘날 각국의 헌법은 종래의 고전적인 기본권뿐만
아니라 국가에 의한 생활의 배려를 내용으로 하는 현대적
기본권들도 명시하고 있으며 많은 경우에 참정권이나
재판을 받을 권리, 즉 통치구조에 관련되는 권리도 보장하고
있다. 각종의 기본적 인권은 ① 인간으로서의 존엄과 가치,
행복추구권, ② 평등권, ③자유권, ④생존권적 기본권, ⑤청구권적
기본권 등으로 분류할 수 있다.
한국 헌법은 기본적 인권의 존중을 그 근본 원리로 하고
제2장 '국민의 권리와 의무'에서 '불가침의 권리'로 보장하고
있다. 각국 헌법이 보장하고 있는 이러한 기본권은 국가의
안전보장과 대립되는 면이 있으므로 항상 그 조정이 문제로
된다. 바꾸어 말하면 기본적 인권의 현실화가 문제로 되는
현행 헌법은 제37조 2항에서 "국민의 모든 자유와 권리는
국가안전보장, 질서유지 또는 공공복리를 위하여 필요한
경우에 한하여 법률로써 제한할 수 있다"는 일반적
법률유보조항(法律留保條項)을 마련하고 있다.
세계인권선언 (世界人權宣言, Universal Declaration of Human Rights)
1948년 6월 국제연합(UN) 인권위원회에 의해 완성된 후, 몇
차례의 수정을 거쳐 1948년 12월 10일 파리에서 개최된
총회에서 만장일치(소비에트 진영에 속한 6개국과
사우디아라비아, 남아프리카 연방은 기권)로 채택된 선언.
이 선언에는 민주적인 헌법이 인정하는 인간의 주요한
시민적·정치적 권리와 몇 개의 소위 경제적·사회적·문화적
권리에 대한 일반적인 정의가 포함되어 있다. 인간의 시민적·정치적
권리에는 생명·자유 및 신체의 안전에 관한 권리, 즉 임의의
체포, 구금 또는 추방으로부터의 자유, 독립적이고 공평한
재판소에서 공정하고 공개적인 재판을 받을 권리, 사상과
양심 및 종교의 자유, 평화적인 집회·결사의 자유 등이
포함된다. 이 선언에서 채택된 새로운 권리 항목에는
사회보장권, 즉 노동권, 교육권, 공동체의 문화생활에
참여할 권리, 예술을 향유할 권리, 그리고 과학의 발전과 그
혜택을 함께 누릴 권리 등이 있다.
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The expression "human rights"
is relatively new, having come into everyday parlance only since World War II
and the founding of the United Nations in 1945. It replaces the phrase
"natural rights," which fell into disfavour in part because the
concept of natural law (to which it was intimately linked) had become a matter
of great controversy, and the later phrase "the rights of Man," which
was not universally understood to include the rights of women. |
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Most students of human rights trace the
historical origins of the concept back to ancient Greece and Rome, where it was
closely tied to the premodern natural law doctrines of Greek Stoicism (the
school of philosophy founded by Zeno of Citium, which held that a universal
working force pervades all creation and that human conduct therefore should be
judged according to, and brought into harmony with, the law of nature). The
classic example, drawn from the Greek literature, is that of Antigone, who, upon
being reproached by Creon for defying his command not to bury her slain brother,
asserted that she acted in accordance with the immutable laws of the gods. (see
also Greek law) |
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In part because Hellenistic Stoicism
played a key role in its formation and spread, Roman
law may similarly be seen to have allowed for the existence of a natural
law and, with it, pursuant to the jus gentium
("law of nations"), certain universal rights that extended beyond the
rights of citizenship. According to the Roman jurist Ulpian, for example,
natural law was that which nature--not the state--assures to all human beings,
Roman citizen or not. |
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It was not until after the Middle Ages,
however, that natural law doctrines became closely associated with liberal
political theories about natural rights. In Greco-Roman and medieval times,
natural law doctrines taught mainly the duties, as distinguished from the
rights, of "Man." Moreover, as evident in the writings of Aristotle
and St. Thomas Aquinas, these doctrines recognized the legitimacy of slavery and
serfdom and, in so doing, excluded perhaps the centralmost ideas of human rights
as they are understood today--the ideas of freedom (or liberty) and equality.
(see also liberalism) |
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For the idea of human (i.e., natural) rights to take hold as a general social need and
reality, it was necessary that basic changes in the beliefs and practices of
society take place, changes of the sort that evolved from about the 13th century
to the Peace of Westphalia (1648), during the Renaissance
and the decline of feudalism. When resistance to religious intolerance and
political-economic bondage began the long transition to liberal notions of
freedom and equality, particularly in relation to the use and ownership of
property, then were the foundations of what today are called human rights truly
laid. During this period, reflecting the failure of rulers to meet their natural
law obligations as well as the unprecedented commitment to individual expression
and worldly experience that was characteristic of the Renaissance, the shift
from natural law as duties to natural law as rights was made. The teachings of
Aquinas (1224/25-1274) and Hugo Grotius (1583-1645) on the European continent,
and the Magna Carta (1215), the Petition of Right of 1628, and the English Bill
of Rights (1689) in England, were proof of this change. All testified to the
increasingly popular view that human beings are endowed with eternal and
inalienable rights, never renounced when humankind "contracted" to
enter the social from the primitive state and never diminished by the claim of
"the divine right of kings." |
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It was primarily for the 17th and 18th
centuries, however, to elaborate upon this modernist conception of natural law
as meaning or implying natural rights. The scientific and intellectual
achievements of the 17th century--the discoveries of Galileo and Sir Isaac
Newton, the materialism of Thomas Hobbes, the rationalism of René
Descartes and Gottfried Wilhelm Leibniz, the pantheism of Benedict de Spinoza,
the empiricism of Francis Bacon and John Locke--encouraged a belief in natural
law and universal order; and during the 18th century, the so-called Age of Enlightenment,
a growing confidence in human reason and in the perfectability of human affairs
led to its more comprehensive expression. Particularly to be noted are the
writings of the 17th-century English philosopher John
Locke--arguably the most important natural law theorist of modern
times--and the works of the 18th-century Philosophes centred mainly in Paris,
including Montesquieu, Voltaire, and Jean-Jacques Rousseau. Locke argued in
detail, mainly in writings associated with the Revolution of 1688 (the Glorious
Revolution), that certain rights self-evidently pertain to individuals as human
beings (because they existed in "the state of nature" before humankind
entered civil society); that chief among them are the rights to life, liberty
(freedom from arbitrary rule), and property; that, upon entering civil society
(pursuant to a "social contract"), humankind surrendered to the state
only the right to enforce these natural rights, not the rights themselves; and
that the state's failure to secure these reserved natural rights (the state
itself being under contract to safeguard the interests of its members) gives
rise to a right to responsible, popular revolution. The Philosophes,
building on Locke and others and embracing many and varied currents of thought
with a common supreme faith in reason, vigorously attacked religious and
scientific dogmatism, intolerance, censorship, and social-economic restraints.
They sought to discover and act upon universally valid principles harmoniously
governing nature, humanity, and society, including the theory of the inalienable
"rights of Man" that became their fundamental ethical and social
gospel. |
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All this liberal intellectual ferment
had, not surprisingly, great influence on the Western world of the late 18th and
early 19th centuries. Together with the practical example of England's
Revolution of 1688 and the resulting Bill of Rights, it provided the rationale
for the wave of revolutionary agitation that then swept the West, most notably
in North America and France. Thomas Jefferson,
who had studied Locke and Montesquieu and who asserted that his countrymen were
a "free people claiming their rights as derived from the laws of nature and
not as the gift of their Chief Magistrate," gave poetic eloquence to the
plain prose of the 17th century in the Declaration of Independence proclaimed by
the 13 American Colonies on July 4, 1776: "We hold these truths to be
self-evident, 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." Similarly, the Marquis
de Lafayette, who won the close friendship of George Washington and who
shared the hardships of the American War of Independence, imitated the
pronouncements of the English and American revolutions in the Declaration
of the Rights of Man and of the Citizen of August 26, 1789. Insisting
that "men are born and remain free and equal in rights," the
declaration proclaims that "the aim of every political association is the
preservation of the natural and imprescriptible rights of man," identifies
these rights as "Liberty, Property, Safety and Resistance to
Oppression," and defines "liberty" so as to include the right to
free speech, freedom of association, religious freedom, and freedom from
arbitrary arrest and confinement (as if anticipating the Bill of Rights added in
1791 to the Constitution of the United States of 1787). |
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In sum, the idea of human rights, called
by another name, played a key role in the late 18th- and early 19th-century
struggles against political absolutism. It was, indeed, the failure of rulers to
respect the principles of freedom and equality, which had been central to
natural law philosophy almost from the beginning, that was responsible for this
development. In the words of Maurice Cranston, a leading student of human
rights, " . . . absolutism prompted man to claim [human, or natural] rights
precisely because it denied them." |
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The idea of human rights as natural
rights was not without its detractors, however, even at this otherwise receptive
time. In the first place, being frequently associated with religious orthodoxy,
the doctrine of natural rights became less and less acceptable to philosophical
and political liberals. Additionally, because they were conceived in essentially
absolutist--"inalienable," "unalterable,"
"eternal"--terms, natural rights were found increasingly to come into
conflict with one another. Most importantly, the doctrine of natural rights came
under powerful philosophical and political attack from both the right and the
left. |
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In England, for example, conservatives
Edmund Burke and David
Hume united with liberal Jeremy Bentham
in condemning the doctrine, the former out of fear that public affirmation of
natural rights would lead to social upheaval, the latter out of concern lest
declarations and proclamations of natural rights substitute for effective
legislation. In his Reflections on the
Revolution in France (1790), Burke, a believer in natural law who
nonetheless denied that the "rights of Man" could be derived from it,
criticized the drafters of the Declaration of the Rights of Man and of the
Citizen for proclaiming the "monstrous fiction" of human equality,
which, he argued, serves but to inspire "false ideas and vain expectations
in men destined to travel in the obscure walk of laborious life." Bentham,
one of the founders of Utilitarianism and a nonbeliever, was no less scornful.
"Rights," he wrote, "is the child of law; from real law come real
rights; but from imaginary laws, from 'law of nature,' come imaginary rights. .
. . Natural rights is simple nonsense; natural and imprescriptible rights (an
American phrase), rhetorical nonsense, nonsense upon stilts." Hume agreed
with Bentham; natural law and natural rights, he insisted, are unreal
metaphysical phenomena. |
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This assault upon natural law and
natural rights, thus begun during the late 18th century, both intensified and
broadened during the 19th and early 20th centuries. John
Stuart Mill, despite his vigorous defense of liberty, proclaimed that
rights ultimately are founded on utility. The German jurist Friedrich Karl von
Savigny, England's Sir Henry Maine, and other historicalists emphasized that
rights are a function of cultural and environmental variables unique to
particular communities. And the jurist John Austin and the philosopher Ludwig
Wittgenstein insisted, respectively, that the only law is "the command of
the sovereign" (a phrase of Thomas Hobbes) and that the only truth is that
which can be established by verifiable experience. By World War I, there were
scarcely any theorists who would or could defend the "rights of Man"
along the lines of natural law. Indeed, under the influence of 19th-century
German Idealism and parallel expressions of rising European nationalism, there
were some--the Marxists, for example--who, although not rejecting individual
rights altogether, maintained that rights, from whatever source derived, belong
to communities or whole societies and nations preeminently. Thus did F.H.
Bradley, the British Idealist, write in 1894: "The rights of the
individual are today not worth serious consideration. . . . The welfare of the
community is the end and is the ultimate standard." |
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Yet, though the heyday of natural rights
proved short, the idea of human rights nonetheless endured in one form or
another. The abolition of slavery, factory legislation, popular education, trade
unionism, the universal suffrage movement--these and other examples of
19th-century reformist impulse afford ample evidence that the idea was not to be
extinguished even if its transempirical derivation had become a matter of
general skepticism. But it was not until the rise and fall of Nazi Germany that
the idea of rights--human rights--came truly into its own. The laws authorizing
the dispossession and extermination of Jews and other minorities, the laws
permitting arbitrary police search and seizure, the laws condoning imprisonment,
torture, and execution without public trial--these and similar obscenities
brought home the realization that law and morality, if they are to be deserving
of the name, cannot be grounded in any purely Utilitarian, Idealist, or other
consequentialist doctrine. Certain actions are wrong, no matter what; human
beings are entitled to simple respect at least. |
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Today, the vast majority of legal
scholars, philosophers, and moralists agree, irrespective of culture or
civilization, that every human being is entitled, at least in theory, to some
basic rights. Heir to the Protestant Reformation and to the English, American,
French, Mexican, Russian, and Chinese revolutions, the last half of the 20th
century has seen, in the words of human rights scholar Louis Henkin,
"essentially universal acceptance of human rights in principle" such
that "no government dares to dissent from the ideology of human rights
today." Indeed, except for some essentially isolated 19th-century
demonstrations of international humanitarian concern to be noted below, the last
half of the 20th century may fairly be said to mark the birth of the
international as well as the universal recognition of human rights. In the
treaty establishing the United Nations (UN), all members pledged themselves to
take joint and separate action for the achievement of "universal respect
for, and observance of, human rights and fundamental freedoms for all without
distinction as to race, sex, language, or religion." In the Universal
Declaration of Human Rights (1948), representatives from many diverse cultures
endorsed the rights therein set forth "as a common standard of achievement
for all peoples and all nations." And in 1976, the International Covenant
on Economic, Social and Cultural Rights and the International Covenant on Civil
and Political Rights, each approved by the UN General Assembly in 1966, entered
into force and effect. |
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To say that there is widespread
acceptance of the principle of human rights on the domestic and international
planes is not to say that there is complete agreement about the nature of such
rights or their substantive scope--which is to say, their definition. Some of
the most basic questions have yet to receive conclusive answers. Whether human
rights are to be viewed as divine, moral, or legal entitlements; whether they
are to be validated by intuition, custom, social contract theory, principles of
distributive justice, or as prerequisites for happiness; whether they are to be
understood as irrevocable or partially revocable; whether they are to be broad
or limited in number and content--these and kindred issues are matters of
ongoing debate and likely will remain so as long as there exist contending
approaches to public order and scarcities among resources. |
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Despite this lack of consensus, however,
a number of widely accepted--and interrelated--postulates may be seen to assist,
if not to complete, the task of defining human rights. Five in particular stand
out, although it is to be noted that not even these are without controversy. |
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First, regardless of their ultimate
origin or justification, human rights are understood to represent individual and
group demands for the shaping and sharing of power, wealth, enlightenment, and
other cherished values in community process, most fundamentally the value of
respect and its constituent elements of reciprocal tolerance and mutual
forebearance in the pursuit of all other values. Consequently, they imply claims
against persons and institutions who impede realization and standards for
judging the legitimacy of laws and traditions. At bottom, human rights limit
state power. |
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Second, reflecting varying environmental
circumstances, differing worldviews, and inescapable interdependencies within
and between value processes, human rights refer to a wide continuum of value
claims ranging from the most justiciable to the most aspirational. Human rights
partake of both the legal and the moral orders, sometimes indistinguishably.
They are expressive of both the "is" and the "ought" in
human affairs. |
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Third, if a right is determined to be a
human right it is quintessentially general or universal in character, in some
sense equally possessed by all human beings everywhere, including in certain
instances even the unborn. In stark contrast to "the divine right of
kings" and other such conceptions of privilege, human rights extend, in
theory, to every person on Earth without discriminations irrelevant to merit. |
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Fourth, most assertions of human
rights--arguably not all--are qualified by the limitation that the rights of any
particular individual or group in any particular instance are restricted as much
as is necessary to secure the comparable rights of others and the aggregate
common interest. Given this interdependency, human rights are sometimes
designated prima facie rights, and it makes little or no sense to think or talk
of them in absolutist terms. |
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Fifth and finally, human rights are
commonly assumed to refer, in some vague sense, to "fundamental" as
distinct from "nonessential" claims or "goods." In fact,
some theorists go so far as to limit human rights to a single core right or
two--for example, the right to life or the right to equal freedom of
opportunity. The tendency, in short, is to de-emphasize or rule out "mere
wants." |
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In several critical respects, however,
this last postulate raises more questions than it answers. What does it mean to
say that a right is fundamental? Does it entail some bare minimum only, or, more
plausibly, does it admit to something greater? If the latter, how much greater
and subject to what conditions, if any? In other words, however accurate, this
last postulate is fraught with ambiguity about the content and legitimate scope
of human rights and about the priorities, if any, that obtain among them. Except
for the issue of the origin and justification of human rights, no cluster of
preliminary human rights considerations is more controversial. |
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It cannot be disputed that, like all
normative traditions, the human rights tradition is a product of its time. It
necessarily reflects the processes of historical continuity and change that, at
once and as a matter of cumulative experience, help to give it substance and
form. Therefore, to understand better the debate over the content and legitimate
scope of human rights and the priorities claimed among them, it is useful to
note the dominant schools of thought and action that have informed the human
rights tradition since the beginning of modern times. |
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Particularly helpful in this regard is
the notion of "three generations of human rights" advanced by the
French jurist Karel Vasak. Inspired by the three normative themes of the French
Revolution, they are: the first generation of civil and political rights (liberté
); the second generation of economic, social, and cultural rights (égalité
); and the third generation of newly called solidarity rights (fraternité
). Vasak's model is of course a simplified expression of an extremely complex
historical record; it is not intended as a literal representation of life in
which one generation gives birth to the next and then dies away. |
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The first generation of civil and
political rights derives primarily from the 17th- and 18th-century reformist
theories noted above, which are associated with the English, American, and
French revolutions. Infused with the political philosophy of liberal
individualism and the economic and social doctrine of laissez-faire, it
conceives of human rights more in negative ("freedoms from") than
positive ("rights to") terms; it favours the abstention rather than
the intervention of government in the quest for human dignity, as epitomized by
the statement attributed to H.L. Mencken that " . . . all government is, of
course, against liberty." Belonging to this first generation, thus, are
such claimed rights as are set forth in Articles 2-21 of the Universal
Declaration of Human Rights, including freedom from racial and equivalent forms
of discrimination; the right to life, liberty, and the security of the person;
freedom from slavery or involuntary servitude; freedom from torture and from
cruel, inhuman, or degrading treatment or punishment; freedom from arbitrary
arrest, detention, or exile; the right to a fair and public trial; freedom from
interference in privacy and correspondence; freedom of movement and residence;
the right to asylum from persecution; freedom of thought, conscience, and
religion; freedom of opinion and expression; freedom of peaceful assembly and
association; and the right to participate in government, directly or through
free elections. Also included is the right to own property and the right not to
be deprived of one's property arbitrarily, each fundamental to the interests
fought for in the American and French revolutions and to the rise of capitalism. |
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Of course, it would be error to assert
that these and other first-generation rights correspond completely to the idea
of "negative" as opposed to "positive" rights. The right to
security of the person, to a fair and public trial, to asylum from persecution,
and to free elections, for example, manifestly cannot be assured without some
affirmative government action. What is constant in this first-generation
conception, however, is the notion of liberty, a
shield that safeguards the individual, alone and in association with others,
against the abuse and misuse of political authority. This is the core value.
Featured in almost every constitution of today's approximately 160 states, and
dominating the majority of the international declarations and covenants adopted
since World War II, this essentially Western liberal conception of human rights
is sometimes romanticized as a triumph of Hobbesian-Lockean individualism over
Hegelian statism. |
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The second generation of economic,
social, and cultural rights finds its origins primarily in the socialist
tradition that was foreshadowed among the Saint-Simonians of early 19th-century
France and variously promoted by revolutionary struggles and welfare movements
ever since. In large part, it is a response to the abuses and misuses of
capitalist development and its underlying, essentially uncritical, conception of
individual liberty that tolerated, even legitimated, the exploitation of working
classes and colonial peoples. Historically, it is counterpoint to the first
generation of civil and political rights, with human rights conceived more in
positive ("rights to") than negative ("freedoms from")
terms, requiring the intervention, not the abstention, of the state for the
purpose of assuring equitable participation in the production and distribution
of the values involved. Illustrative are the claimed rights set forth in
Articles 22-27 of the Universal Declaration of Human Rights, such as the right
to social security; the right to work and to protection against unemployment;
the right to rest and leisure, including periodic holidays with pay; the right
to a standard of living adequate for the health and well-being of self and
family; the right to education; and the right to the protection of one's
scientific, literary, and artistic production. |
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Yet, in the same way that all the rights
embraced by the first generation of civil and political rights cannot properly
be designated "negative rights," so all the rights embraced by the
second generation of economic, social, and cultural rights cannot properly be
labeled "positive rights." The right to free choice of employment, the
right to form and to join trade unions, and the right freely to participate in
the cultural life of the community, for example, do not inherently require
affirmative state action to ensure their enjoyment. Nevertheless, most of the
second-generation rights do necessitate state intervention in the allocation of
resources because they subsume demands more for material than for intangible
values according to some criterion of distributive justice. Second-generation
rights are, fundamentally, claims to social equality. Partly because of the
comparatively late arrival of socialist-communist influence in the normative
domain of international affairs, however, the internationalization of these
rights has been somewhat slow in coming; but with the ascendancy of the Third
World on the global stage, intent upon a "revolution of rising
expectations," the second-generation rights have begun to come of age. |
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Finally, the third generation of
solidarity rights, while drawing upon, interlinking, and reconceptualizing value
demands associated with the two earlier generations of rights, are best
understood as a product, albeit one still in formation, of both the rise and the
decline of the nation-state in the last half of the 20th century. Foreshadowed
in Article 28 of the Universal Declaration of Human Rights, which proclaims that
"everyone is entitled to a social and international order in which the
rights set forth in this Declaration can be fully realized," it appears so
far to embrace six claimed rights. Three of these reflect the emergence of Third
World nationalism and its demand for a global redistribution of power, wealth,
and other important values: the right to political, economic, social, and
cultural self-determination; the right to economic and social development; and
the right to participate in and benefit from "the common heritage of
mankind" (shared Earth-space resources; scientific, technical, and other
information and progress; and cultural traditions, sites, and monuments). The
other three third-generation rights--the right to peace, the right to a healthy
and balanced environment, and the right to humanitarian disaster relief--suggest
the impotence or inefficiency of the nation-state in certain critical respects. |
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All six of these claimed rights tend to
be posed as collective rights, requiring the concerted efforts of all social
forces, to substantial degree on a planetary scale, and implying a quest for a
possible utopia that projects the notion of holistic community interests. Each,
however, manifests an individual as well as collective dimension. For example,
while it may be said to be the collective right of all countries and peoples
(especially developing countries and non-self-governing peoples) to secure a new
international economic order that would eliminate obstacles to their economic
and social development, so also may it be said to be the individual right of all
persons to benefit from a developmental policy that is based on the satisfaction
of material and nonmaterial human needs. Also, while the right to
self-determination and the right to humanitarian assistance, for example, find
expression on the legal as well as the moral plane, the majority of these
solidarity rights tend to be more aspirational than justiciable in character,
enjoying as yet an ambiguous jural status as international human rights norms. |
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Thus, at various stages of modern
history--following the "bourgeois" revolutions of the 17th and 18th
centuries, the socialist and Marxist revolutions of the early 20th century, and
the anticolonialist revolutions that began immediately following World War
II--the content of human rights has been broadly defined, not with any
expectation that the rights associated with one generation would or should
become outdated upon the ascendancy of another, but expansively or
supplementally. Reflecting evolving perceptions of which values, at different
times, stand most in need of encouragement and protection, the history of the
content of human rights also reflects humankind's recurring demands for
continuity and stability. |
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This is not to imply that each of these
three generations of rights is equally acceptable to all or that they or their
separate elements are greeted with equal urgency. First-generation proponents,
for example, are inclined to exclude second- and third-generation rights from
their definition of human rights altogether (or, at best, to label them as
"derivative"). In part this is due to the complexities that inform the
process of putting these rights into action. The suggestion of greater
feasibility that attends first-generation rights because they stress the absence
rather than the presence of government is somehow transformed into a
prerequisite of a comprehensive definition of human rights, such that
aspirational and vaguely asserted claims to entitlement are deemed not to be
rights at all. The most forceful explanation, however, is more ideologically or
politically motivated. Persuaded that egalitarian claims against the rich,
particularly where collectively espoused, are unworkable without a severe
decline in liberty and quality (in part because they involve state intervention
for the redistribution of privately held resources), first-generation
proponents, inspired by the natural law and laissez-faire traditions, are
partial to the view that human rights are inherently independent of civil
society and are individualistic. |
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Conversely, second- and third-generation
defenders often look upon first-generation rights, at least as commonly
practiced, as insufficiently attentive to material human needs and, indeed, as
legitimating instruments in service to unjust domestic, transnational, and
international social orders--hence constituting a "bourgeois
illusion." Accordingly, while not placing first-generation rights outside
their definition of human rights, they tend to assign such rights a low status
and therefore to treat them as long-term goals that will come to pass only with
fundamental economic and social transformations to be realized progressively and
fully consummated only sometime in the future. |
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In sum, different conceptions of rights,
particularly emerging conceptions, contain the potential for challenging the
legitimacy and supremacy not only of one another but, more importantly, of the
political-social systems with which they are most intimately associated. As a
consequence there is sharp disagreement about the legitimate scope of human
rights and about the priorities that are claimed among them. |
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On final analysis, however, this
liberty-equality and individualist-collectivist debate over the legitimacy and
priorities of claimed human rights can be dangerously misleading. It is useful,
certainly, insofar as it calls attention to the way in which notions of liberty
and individualism can be, and have been, used to rationalize the abuses of
capitalism; and it is useful, too, insofar as it highlights how notions of
equality and collectivism can be, and have been, alibis for authoritarian
governance. But in the end it risks obscuring at least three essential truths
that must be taken into account if the contemporary worldwide human rights
movement is to be objectively understood. |
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First, one-sided characterizations of
legitimacy and priority are likely, over the long term, to undermine the
political credibility of their proponents and the defensibility of their
particularistic values. In an increasingly interdependent and interpenetrating
global community, any human rights orientation that does not genuinely support
the widest possible shaping and sharing of all values among all human beings is
likely to provoke widespread skepticism. The last half of the 20th century is
replete with examples. |
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Second, such characterizations do not
accurately mirror behavioral reality. In the real world, despite differences in
cultural tradition and ideological style, there exists a rising and overriding
insistence upon the equitable production and distribution of all basic values.
U.S. Pres. Franklin D. Roosevelt's Four Freedoms (freedom of speech and
expression, freedom of worship, freedom from want, and freedom from fear) is an
early case in point. A more recent demonstration was the 1977 Law Day speech by
then U.S. Secretary of State Cyrus R. Vance, in
which he announced the U.S. government's resolve "to make the advancement
of human rights a central part of our foreign policy" and defined human
rights to include "the right to be free from governmental violation of the
integrity of the person, . . . the right to the fulfillment of such vital needs
as food, shelter, health care, and education, . . . [and] the right to enjoy
civil and political liberties." Essentially individualistic societies
tolerate, even promote, certain collectivist values; likewise, essentially
communal societies tolerate, even promote, certain individualistic values. Ours
is a more-or-less, not an either-or, world. |
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Finally, none of the international human
rights instruments currently in force or proposed say anything whatsoever about
the legitimacy or rank-ordering of the rights they address, save possibly in the
case of rights that by international covenant are stipulated to be nonderogable
and therefore, arguably, more fundamental than others (for example, freedom from
arbitrary or unlawful deprivation of life, freedom from torture and from inhuman
or degrading treatment and punishment, freedom from slavery, freedom from
imprisonment for debt). There is disagreement, to be sure, among lawyers,
moralists, and political scientists about the legitimacy and hierarchy of
claimed rights when they treat the problem of implementation. For example, some
insist on certain civil and political guarantees, whereas others defer initially
to conditions of material and corporeal well-being. Such disagreements, however,
partake of political agendas and have little if any conceptual utility. As the
UN General Assembly has repeatedly confirmed, all human rights form an
indivisible whole. |
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In short, the legitimacy of different
human rights and the priorities claimed among them are a function of context.
Because people in different parts of the world both assert and honour different
human rights demands according to many different procedures and practices, these
issues ultimately depend on time, place, setting, level of crisis, and other
circumstance. |
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Ever since ancient times, but especially
since the emergence of the modern state system, the Age of Discovery, and the
accompanying spread of industrialization and European culture throughout the
world, there has developed, for economic and other reasons, a unique set of
customs and conventions relative to the humane treatment of foreigners. This
evolving International Law of State
Responsibility for Injuries to Aliens, as these customs and conventions came to
be called, may be understood to represent the beginning of active concern for
human rights on the international plane. The founding fathers of international
law--particularly Francisco de Vitoria (1486?-1546), Hugo Grotius (1583-1645),
and Emmerich de Vattel (1714-67)--were quick to observe that all persons,
outlander as well as other, were entitled to certain natural rights; and they
emphasized, consequently, the importance of according aliens fair treatment. |
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Except, however, for the occasional use
of treaties to secure the protection of Christian minorities, as early
illustrated by the Peace of Westphalia (1648), which concluded the Thirty Years'
War and established the principle of equal rights for the Roman Catholic and
Protestant religions in Germany, it was not until the start of the 19th century
that active international concern for the rights of nationals began to make
itself felt. Then, in the century and a half before World War II, several
noteworthy, if essentially unconnected, efforts to encourage respect for
nationals by international means began to shape what today is called the
International Law of Human Rights (which for historical but no theoretically
convincing reasons has tended to be treated separately from the International
Law of State Responsibility for Injuries to Aliens). |
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Throughout the 19th and early 20th
centuries, numerous military operations and diplomatic representations, not all
of them with the purest of motives but done nonetheless in the name of
"humanitarian intervention" (a customary international law doctrine),
undertook to protect oppressed and persecuted minorities in the Ottoman Empire
and in Syria, Crete, various Balkan countries, Romania, and Russia. Paralleling
these actions, first at the Congress of Vienna (1814-15) and later between the
two world wars, a series of treaties and international declarations sought the
protection of certain racial, religious, and linguistic minorities in central
and eastern Europe and in the Middle East. During the same period the movement
to combat and suppress slavery and the slave trade found expression in treaties
sooner or later involving the major commercial powers, beginning with the Treaty
of Paris (1814) and culminating in the International Slavery Convention (1926). |
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In addition, toward the end of the 19th
century and continuing well beyond World War II, the community of nations,
inspired largely by persons associated with what is now the International
Committee of the Red Cross, concluded a series of multilateral declarations and
agreements designed to temper the conduct of hostilities, protect the victims of
war, and otherwise elaborate the humanitarian law of war. At about the same
time, first with two multilateral labour conventions concluded in 1906 and
subsequently at the initiative of the International Labour Organisation (ILO;
established in 1919), a reformist-minded international community embarked upon a
variety of collaborative measures directed at the promotion of human rights.
These included not only fields traditionally associated with labour law and
relations (for example, industrial health, safety, and welfare; hours of work;
annual paid holidays) but also--mainly after World War II--in respect of such
core human rights concerns as forced labour, discrimination in employment and
occupation, freedom of association for collective bargaining, and equal pay for
equal work. |
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Finally, during the interwar period, the
Covenant establishing the League of Nations
(1919), while not formally recognizing "the rights of Man" and while
failing to lay down a principle of racial nondiscrimination as requested by
Japan (owing mainly to the resistance of Great Britain and the United States),
nevertheless committed the League's members to several human rights goals: fair
and humane working conditions for men, women, and children; the execution of
agreements regarding traffic in women and children; the prevention and control
of disease in matters of international concern; and the just treatment of native
colonial peoples. Also, victorious powers who as "mandatories" were
entrusted by the League with the tutelage of colonies formerly governed by
Germany and Turkey accepted as "a sacred trust of civilization"
responsibilities for the well-being and development of the inhabitants of those
territories. (The arrangement was carried over into the UN trusteeship system
and had serious repercussions more than a half century later in relation to the
mandate entrusted to South Africa over the territory of South West Africa [now
Namibia].) |
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As important as these pre-World War II
human rights efforts were, however, it was not until after the War--and the Nazi
atrocities accompanying it--that active concern for human rights on the
international plane truly came of age. In the proceedings of the International
Military Tribunal at Nürnberg in 1945-46, German high officials were tried
not only for "crimes against peace" and "war crimes" but
also for "crimes against humanity" committed against any civilian
population even if in accordance with the laws of the country where perpetrated.
While the tribunal, whose establishment and rulings subsequently were endorsed
by the UN General Assembly, applied a cautious approach to allegations of
"crimes against humanity," it nonetheless made the treatment by a
state of its own citizens the subject of international criminal process. |
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The Charter of
the United Nations (1945) begins by reaffirming a "faith in
fundamental human rights, in the dignity and worth of the human person, in the
equal rights of men and women and of nations large and small." It states
that the purposes of the United Nations are,
among other things, "to develop friendly relations among nations based on
respect for the principle of equal rights and selfdetermination of peoples . . .
[and] to achieve international co-operation . . . in promoting and encouraging
respect for human rights and for fundamental freedoms for all without
distinction as to race, sex, language, or religion . . . ." And, in two key
articles, all members "pledge themselves to take joint and separate action
in cooperation with the Organization" for the achievement of these and
related purposes. It is to be noted, however, that a proposal to ensure the
protection as well as the promotion of human rights was explicitly rejected at
the San Francisco Conference establishing the United Nations. Additionally, the
Charter expressly provides that nothing in it "shall authorize the United
Nations to intervene in matters which are essentially within the domestic
jurisdiction of any state . . . ," except upon a Security Council finding
of a "threat to the peace, breach of the peace, or act of aggression."
Moreover, although typical of major constitutive instruments, the Charter is
conspicuously general and vague in its human rights clauses, among others. |
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Thus, not surprisingly, the
reconciliation of the Charter's human rights provisions with the Charter's
drafting history and its "domestic jurisdiction" clause has given rise
to not a little legal and political controversy. Some authorities have argued
that, in becoming parties to the Charter, states accept no more than a nebulous
promotional obligation toward human rights and that, in any event, the United
Nations has no standing to insist on human rights safeguards in member states.
Others insist that the Charter's human rights provisions, being part of a
legally binding treaty, clearly involve some element of legal obligation; that
the "pledge" made by states upon becoming party to the Charter
consequently represents more than a moral statement; and that the "domestic
jurisdiction" clause does not apply because human rights, whatever
isolation they may have "enjoyed" in the past, no longer can be
considered matters "essentially within the domestic jurisdiction" of
states. |
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When all is said and done, however, it
is clear from the actual practice of the United Nations that the problem of
resolving these opposing contentions has proved somewhat less formidable than
the statements of governments and the opinions of scholars might lead one to
assume. Neither the Charter's drafting history nor its "domestic
jurisdiction" clause nor, indeed, its generality and vagueness in respect
of human rights has prevented the United Nations--on the basis of individual
petitions, statements from witnesses, state complaints, and reports from
interested nongovernmental organizations--from investigating, discussing, and
evaluating specific human rights situations. Nor have they prevented it from
recommending or prescribing concrete action in relation to them, at least not in
the case of "a consistent pattern of gross violations" of human
rights, provided there has been a majority persuasive enough to force the action
desired (as in the imposition by the Security Council in 1977 of a mandatory
arms embargo against South Africa). Of course, governments usually are
protective of their sovereignty (or domestic jurisdiction). Also, the UN organs
responsible for the promotion of human rights suffer from most of the same
disabilities that afflict the United Nations as a whole, in particular the
absence of supranational authority and the presence of divisive power politics.
Hence, it cannot be expected that UN actions in defense of human rights will be,
normally, either swift or categorically effective. Nevertheless, assuming some
political will, the legal obstacles to UN enforcement of human rights are not
insurmountable. |
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Primary responsibility for the promotion
of human rights under the UN Charter rests in the General Assembly and, under
its authority, in the Economic and Social Council and its subsidiary body, the
Commission on Human Rights, an intergovernmental body that serves as the UN's
central policy organ in the human rights field. Much of the commission's
activity, initiated by subsidiary working groups, is investigatory, evaluative,
and advisory in character, and the commission annually establishes a working
group to consider and make recommendations concerning alleged "gross
violations" of human rights referred to it by its Sub-Commission on
Prevention of Discrimination and Protection of Minorities (on the basis of
communications from individuals and groups, pursuant to Resolution 1503 [1970]
of the UN Economic and Social Council, and sometimes on the basis of
investigations by the subcommission or one of its working groups). Also, the
commission has appointed special representatives and envoys to examine human
rights situations on an ad hoc basis, who, in the course of preparing their
reports, examine reliable information submitted in good faith, interview
interested persons, or make on-site inspections with the cooperation of the
government concerned. (see also United
Nations Commission on Human Rights) |
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In addition, the commission, together
with other UN organs such as the International Labour Organisation (ILO), the UN
Educational, Scientific and Cultural Organization (UNESCO), and the UN
Commission on the Status of Women, drafts human rights standards and has
prepared a number of international human rights instruments. Among the most
important are the Universal Declaration of Human Rights (1948), the
International Covenant on Civil and Political Rights (together with its Optional
Protocol; 1976), and the International Covenant on Economic, Social and Cultural
Rights (1976). Collectively known as the International Bill of Rights, these
three instruments serve as touchstones for interpreting the human rights
provisions of the UN Charter. |
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The catalog of rights set out in the Universal
Declaration of Human Rights, which was adopted without dissent by the
General Assembly on December 10, 1948, is scarcely less than the sum of all the
important traditional political and civil rights of national constitutions and
legal systems, including equality before the law; protection against arbitrary
arrest; the right to a fair trial; freedom from ex post facto criminal laws; the
right to own property; freedom of thought, conscience, and religion; freedom of
opinion and expression; and freedom of peaceful assembly and association. Also
enumerated are such economic, social, and cultural rights as the right to work
and to choose one's work freely, the right to equal pay for equal work, the
right to form and join trade unions, the right to rest and leisure, the right to
an adequate standard of living, and the right to education. |
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The Universal Declaration, it must be
noted, is not a treaty. It was meant to proclaim "a common standard of
achievement for all peoples and all nations" rather than enforceable legal
obligations. Nevertheless, partly because of an 18-year delay between its
adoption and the completion for signature and ratification of the two covenants,
the Universal Declaration has acquired a status juridically more important than
originally intended. It has been widely used, even by national courts, as a
means of judging compliance with human rights obligations under the UN Charter. |
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The civil and political rights
guaranteed by this covenant, which was opened for signature on December 19,
1966, and entered into force on March 23, 1976, incorporate almost all of those
proclaimed in the Universal Declaration, including the right to
nondiscrimination. Pursuant to the covenant, each state party undertakes to
respect and to ensure to all individuals within its territory and subject to its
jurisdiction the rights recognized in the 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." Some
rights listed in the Universal Declaration, however, such as the right to own
property and the right to asylum, are not included among the rights recognized
in the covenant. Similarly, the covenant designates a number of rights that are
not listed in the Universal Declaration, among them the right of all peoples to
self-determination and the right of ethnic, religious, or linguistic minorities
to enjoy their own culture, to profess and practice their own religion, and to
use their own language. To the extent that the Universal Declaration and the
covenant overlap, however, the latter is understood to explicate and help
interpret the former. |
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In addition, the covenant calls for the
establishment of a Human Rights Committee, an international organ of 18 persons
elected by the parties to the covenant, serving in their individual expert
capacity and charged to study reports submitted by the state parties on the
measures they have adopted that give effect to the rights recognized in the
covenant. As between the state parties that have expressly recognized the
competence of the committee in this regard, the committee also may respond to
allegations by one state party that another state party is not fulfilling its
obligations under the covenant. If the committee is unable to resolve the
problem, the matter is referred to an ad hoc conciliation commission, which
eventually reports its findings on all questions of fact, plus its views on the
possibilities of an amicable solution. State parties that become party to the
Optional Protocol further recognize the competence of the Human Rights Committee
similarly to consider and act upon communications from individuals claiming to
be victims of covenant violations. |
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Just as the International Covenant on
Civil and Political Rights elaborates upon most of the civil and political
rights enumerated in the Universal Declaration of Human Rights, so the
International Covenant on Economic, Social and Cultural Rights elaborates upon
most of the economic, social, and cultural rights set forth in the Universal
Declaration: the right to work; the right to just and favourable conditions of
work; trade union rights; the right to social security; rights relating to the
protection of the family; the right to an adequate standard of living; the right
to health; the right to education; and rights relating to culture and science.
Unlike its companion International Covenant on Civil and Political Rights,
however, this covenant is not geared, with modest exception, to immediate
implementation, the state parties having agreed only "to take steps"
toward "achieving progressively the full realization of the rights
recognized in the . . . Covenant," and then subject to "the maximum of
[their] available resources." The covenant is essentially a
"promotional convention," stipulating objectives more than standards
and requiring implementation over time rather than all at once. One obligation
is, however, subject to immediate application: the prohibition of discrimination
in the enjoyment of the rights enumerated on grounds of race, colour, sex,
language, religion, or political or other opinion; national or social origin;
property; and birth or other status. Also, the international supervisory
measures that apply to the covenant oblige the state parties to report to the UN
Economic and Social Council on the steps they have adopted and the progress they
have made in achieving the realization of the enumerated rights. |
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The two above-mentioned covenants are by
no means the only human rights treaties drafted and adopted under the auspices
of the United Nations. Indeed, because there are far too many to detail even in
abbreviated fashion, it must suffice simply to note that they address a broad
range of concerns, including the prevention and punishment of the crime of
genocide; the humane treatment of military and civilian personnel in time of
war; the status of refugees; the protection and reduction of stateless persons;
the abolition of slavery, forced labour, and discrimination in employment and
occupation; the elimination of all forms of racial discrimination and the
suppression and punishment of the crime of apartheid; the elimination of
discrimination in education; the promotion of the political rights of women and
the elimination of all forms of discrimination against women; and the promotion
of equality of opportunity and treatment of migrant workers. (For particular
agreements, see Human Rights: A
Compilation of International Instruments, 3rd ed. [1978], published by the
United Nations.) Many of these treaties are the work of the UN specialized
agencies, particularly the International Labour Organisation (ILO), and many
also provide for supervisory and enforcement mechanisms--for example, the
Committee on the Elimination of Racial Discrimination established under the
International Convention on the Elimination of All Forms of Racial
Discrimination of December 21, 1965. |
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In addition to developing human rights
standards and procedures through treaties, the UN General Assembly, impressed by
the impact of the Universal Declaration of Human Rights, also has resorted to
the proclamation of declarations as a means of promoting human rights. Adopted
in the form of a resolution of the General Assembly, which technically is not
binding on the member states in the sense of a treaty, a declaration,
particularly when it enunciates principles of great and solemn importance, may
nevertheless create within the international community strong expectations about
authority and control. Perhaps the best known examples subsequent to the
Universal Declaration, while not devoted exclusively to human rights
considerations, are the Declaration on the Granting of Independence to Colonial
Countries and Peoples (1960) and the Declaration on Principles of International
Law Concerning Friendly Relations and Co-Operation Among States in Accordance
with the Charter of the United Nations (1970). |
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Post-World War II concern for human
rights also has been evident at the global level outside the United Nations,
most notably in the proceedings and aftermath of the Conference on Security and
Cooperation in Europe, convened in Helsinki on July 3, 1973, and concluded there
(after continuing deliberations in Geneva) on August 1, 1975. Attended by
representatives of 35 governments that included the NATO countries, the Warsaw
Pact nations, and 13 neutral and nonaligned European states, the conference had
as its principal purpose a mutually satisfactory definition of peace and
stability between East and West, previously made impossible by the period of the
Cold War. In particular, the Soviet Union was concerned with achieving
recognition of its western frontiers as established at the end of World War II.
(see also Helsinki
Accords) |
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There was little tangible, however, that
the Western powers, with no realistic territorial claims of their own, could
demand in return, and accordingly they pressed for certain concessions in
respect of human rights and freedom of movement and information between East and
West. Thus, at the outset of the Final Act adopted by the conference, in a
Declaration of Principles Guiding Relations Between States, the participating
governments solemnly declared "their determination to respect and put into
practice," alongside other "guiding" principles, "respect
[for] human rights and fundamental freedoms, including the freedom of thought,
conscience, religion or belief" and "respect [for] the equal rights of
peoples and their right to self-determination." It was hoped that this
would mark the beginning of a liberalization of authoritarian regimes. |
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From the earliest discussions, however,
it was clear that the Helsinki Final Act was not intended as a legally binding
instrument. "Determination to respect" and "put into
practice" were deemed to express moral commitments only, the Declaration of
Principles was said not to prescribe international law, and nowhere did the
participants provide for enforcement machinery. On the other hand, the
Declaration of Principles, including its human rights principles, always has
been viewed as at least consistent with international law. Additionally, the
fourth of four sections (commonly known as "baskets") of the Final Act
provides for the holding of periodic review conferences in which the
participating states are called upon "to continue the multilateral process
initiated by the Conference." But most importantly, ever since their
adoption, the Final Act's human rights provisions have served as important and
widely accepted yardsticks for external scrutiny and appropriate recourse to
perceived violations. |
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In sum, like the Universal Declaration
of Human Rights and other such declarations of the UN General Assembly, the
Helsinki Final Act, though not a treaty, has created widespread expectations
about proper human rights behaviour, and consequently it has inspired and
facilitated the monitoring of human rights policy. Assuming some cordiality
between East and West, the Helsinki Process may be said at least to hold out the
potential for modestly beneficial results in the human rights arena. |
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Action for the international promotion
and protection of human rights has proceeded at the regional level in Europe,
the Americas, Africa, and the Middle East. Only the first three of these
regions, however, have gone so far as to create enforcement mechanisms within
the framework of a human rights charter. The Permanent Arab Commission on Human
Rights, founded by the Council of the League of Arab States in September 1968
but since then preoccupied by the rights of Arabs living in Israeli-occupied
territories, has not brought a proposed Arab Convention on Human Rights to a
successful conclusion and so far has tended to function more in terms of the
promotion than the protection of human rights. |
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On November 4, 1950, the Council of
Europe agreed to the European Convention for the
Protection of Human Rights and Fundamental Freedoms, the substantive
provisions of which are based on a draft of what is now the International
Covenant on Civil and Political Rights. Together with its five additional
protocols, this convention, which entered into force on September 3, 1953,
represents the most advanced and successful international experiment in the
field. A companion instrument, similar to the later International Covenant on
Economic, Social and Cultural Rights, is the European Social Charter (1961). The
charter's provisions are implemented through an elaborate system of control
based on the sending of progress reports to, and the appraisal of these reports
by, the various committees and organs of the Council of Europe. The
instrumentalities created under the European convention are the European
Commission of Human Rights and the European Court of Human Rights. The
convention also makes use of the governmental organ of the Council of Europe,
the Committee of Ministers. |
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The commission may receive from any
state party to the convention any allegation of a breach of the convention by
another state party. Also, provided its legal competence to do so has been
formally recognized, the commission may receive petitions from any person, group
of individuals, or nongovernmental organization claiming to be the victim of a
violation of the convention. In such cases, the commission is charged to
ascertain the facts and to place itself at the disposal of the parties to secure
"a friendly settlement . . . on the basis of respect for Human
Rights." If no such solution is reached, the commission is called upon to
draw up a report, stating its opinion as to whether the facts disclose a breach,
and to recommend action to the Committee of Ministers, including referral of the
case to the European Court of Human Rights. |
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The jurisdiction of the court extends to
cases referred to it by a state party whose national is alleged to be a victim
of a violation, by a state party against whom a complaint has been lodged, and
by any state party that may have referred the case to the commission. The court
may not, however, receive a complaint by an individual applicant. Moreover, it
may receive state complaints only if the defendant state has accepted its
jurisdiction. This may be done ad hoc for a particular case or by a general
declaration accepting the compulsory jurisdiction of the court. In either event,
and in cases referred by the European commission as well, the judgment of the
court is final. If a question is not or cannot be referred to the court, then
the Committee of Ministers of the Council of Europe makes a final decision on
human rights complaints. |
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The instrumentalities of the European
convention have, over the years, developed a considerable body of case law on
questions regulated by the convention; and the provisions of the convention are
deemed, in some European states, part of domestic constitutional or statutory
law. In countries where this is not the case, the state parties to the
convention have taken other measures to make their domestic laws conform with
their obligations under the convention. |
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In 1948, concurrent with its
establishment of the Organization of American States (OAS), the Ninth
Pan-American Conference adopted the American Declaration on the Rights and
Duties of Man, an instrument similar to, but coming a full seven months before,
the Universal Declaration of the United Nations and setting out the duties as
well as the rights of the individual citizen (a throwback, perhaps, to
Greco-Roman and medieval natural law theories). Subsequently, in 1959, a meeting
of consultation of the American Ministers for Foreign Affairs created, within
the framework of the OAS, the Inter-American Commission on Human Rights, which
has since undertaken important investigative activities concerning human rights
in the Americas. Finally, in 1969, the Inter-American Specialized Conference on
Human Rights, meeting in San José, Costa Rica, adopted the American
Convention on Human Rights, which made the existing Inter-American Commission on
Human Rights an organ for the convention's implementation and established the
Inter-American Court of Human Rights, which sits in San José. |
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Both the substantive law and the
procedural arrangements of the American convention, which entered into force in
1978, are strongly influenced by the UN covenants and the European convention,
and they were drafted also with the European Social Charter in mind. Under the
American convention, however, unlike its UN and European predecessors, the right
of petition by individuals, groups of individuals, and nongovernmental
organizations operates automatically. Under the UN system, the right of petition
applies only when the state concerned has become a party to the Optional
Protocol to the International Covenant on Civil and Political Rights, and under
the European system a special declaration by the states concerned is required.
On the other hand, again in contrast to the European system (but not the UN
system), interstate complaints under the American convention operate only among
states that have expressly agreed to such procedure. |
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In 1981, following numerous pleas by the
UN Commission on Human Rights, interested states, nongovernmental organizations,
and others dating as far back as 1961, the Eighteenth Assembly of Heads of State
and Government of the Organization of African Unity (OAU), convening in Nairobi,
Kenya, adopted the African Charter on Human and Peoples' Rights. The charter
became effective on October 21, 1986, after it was ratified by a majority of the
50 member states of the OAU. |
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Like its European and American
counterparts, the African charter provides for the establishment of an African
Commission on Human and Peoples' Rights, with both promotional and protective
functions and with no restriction on who may file a complaint with the
commission (thus signatory states, individuals, groups of individuals, and
nongovernmental organizations, whether or not they are victims of the alleged
violation, may all file). In contrast to the European and American procedures,
however, concerned states are encouraged to reach a friendly settlement without
formally involving the investigative or conciliatory mechanisms of the
commission. Also, the African charter does not call for a human rights court.
African customs and traditions, it is said, emphasize mediation, conciliation,
and consensus rather than the adversarial and adjudicative procedures that are
common to Western legal systems. |
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Four other distinctive features of the
African charter are especially noteworthy. First, it provides for economic,
social, and cultural rights as well as civil and political rights. In this
respect it bears resemblance to the American convention, but it is distinctive
from the European convention. Next, in contrast to both the European and
American conventions, it recognizes the rights of groups in addition to the
family, women, and children. The aged and the infirm are accorded special
protection also, and the right of peoples to self-determination is elaborated in
the right to existence, equality, and nondomination. Third, it uniquely embraces
two third-generation, or "solidarity," rights "as belonging to
all peoples": the right to economic, social, and cultural development and
the right to national and international peace and security. Finally, it is so
far the only treaty instrument to detail individual duties as well as individual
rights--to the family, society, the state, and the international African
community. |
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Using domestic courts to clarify and
safeguard international human rights is a new and still evolving approach to
human rights advocacy. In addition to the inevitable interpretative problems of
applying conventional and customary norms that are fashioned in multicultural
settings, controversial theories about the interrelation of national and
international law plus many procedural difficulties--carrying such labels as
"standing," "act of State," and the "political
questions doctrine"--burden the party anxious to invoke international human
rights norms in the domestic context. To be sure, considerable progress has been
made, as perhaps best evidenced in the far-reaching decision handed down by the
U.S. Court of Appeals for the 2nd Circuit in 1980 in Filartiga
v. Pena-Irala, in which the court held that the international
prohibition of torture is unequivocally
established in the law of nations and therefore to be honoured in U.S. courts.
But as human rights scholar Richard Lillich has cautioned, " . . . in all
likelihood the [national] judiciary will have to experience much more
international human rights law consciousness-raising before [wholesale
resistance to its domestic application] is rejected." |
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Whatever the current attitudes and
policies of governments, the reality of popular demands for human rights,
including both greater economic justice and greater political freedom, is beyond
debate. A deepening and widening concern for the promotion and protection of
human rights, hastened by the self-determinist impulse of a postcolonial era, is
now unmistakably woven into the fabric of contemporary world affairs. |
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Substantially responsible for this
progressive development has been, of course, the work of the United Nations, its
allied agencies, and such regional organizations as the Council of Europe, the
Organization of American States, and the Organization of African Unity. Also
visibly helpful, however, particularly since the early 1970s, have been three
other factors: the public advocacy of human rights as a key aspect of national
foreign policies, made initially legitimate by the example of U.S. Pres. Jimmy
Carter; the emergence and proliferation of activist nongovernmental human rights
organizations such as Amnesty International (winner of the Nobel Prize for Peace
for 1977), the International Commission of Jurists, and diverse
church-affiliated groups; and a worldwide profusion of courses and materials
devoted to the study of human rights both in formal and informal educational
settings. Indeed, in light of the weaknesses that presently inhere at the
intergovernmental level of global and regional organization, it is likely that
each of these factors will play an increasingly important role in the future. |
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To be sure, formidable obstacles attend
the endeavours of human rights policymakers, activists, and scholars. The
implementation of international human rights law depends for the most part on
the voluntary consent of nations; the mechanisms for the observance or
enforcement of human rights are yet in their infancy. Still, it is certain that
a palpable concern for the advancement of human rights is here to stay, out of
necessity no less than out of idealism. As Nobel laureate and political
dissident Andrey Sakharov once wrote from his
internal exile in the Soviet Union: |
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The ideology of human rights is
probably the only one which can be combined with such diverse ideologies as
communism, social democracy, religion, technocracy and those ideologies which
may be described as national and indigenous. It can also serve as a foothold for
those . . . who have tired of the abundance of ideologies, none of which have
brought . . . simple human happiness. The defense of human rights is a clear
path toward the unification of people in our turbulent world, and a path toward
the relief of suffering. |
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BIBLIOGRAPHY
UNITED NATIONS, Human Rights: A Compilation of International Instruments, 3rd ed.
(1978), contains the texts of human rights treaties and other instruments
established under the auspices of the United Nations. UNITED NATIONS, Yearbook
on Human Rights (annual), documents national and international developments
in the human rights field. See also JAMES AVERY JOYCE, Human
Rights: International Documents, 3 vol. (1978); BURNS H. WESTON, RICHARD A.
FALK, and ANTHONY A. D'AMATO (eds.), Basic
Documents in International Law and World Order (1980); IAN BROWNLIE (comp.),
Basic Documents on Human Rights, 2nd
ed. (1981); RICHARD B. LILLICH (ed.), International
Human Rights Instruments: A Compilation of Treaties, Agreements, and
Declarations of Especial Interest to the United States (1983); and UNIFO, International
Human Rights Instruments of the United Nations (1983).
Basic works on the subject include SIR
HERSCH LAUTERPACHT, International Law and
Human Rights (1950, reprinted 1973); JÓZSEF HÁLASZ (ed.), Socialist
Concept of Human Rights, trans. from the Hungarian (1966); EGON SCHWELB, Human
Rights and the International Community: The Roots and Growth of the Universal
Declaration of Human Rights (1964); EVAN LUARD (ed.), The International Protection of Human Rights (1967); ASBJÖRN
EIDE and AUGUST SCHOU (eds.), International
Protection of Human Rights: Proceedings of the Seventh Nobel Symposium,
September 25-27, 1967 (1968); R. BILDER, "Rethinking International
Human Rights: Some Basic Questions," Wisconsin
Law Review, pp. 171-217, no. 1 (1969); JOHN CAREY, UN Protection of Civil and Political Rights (1970); VERNON VAN DYKE,
Human Rights, the United States, and World
Community (1970); MAURICE CRANSTON, What Are Human Rights? (1973); J. HUMPHREY, "The International
Law of Human Rights in the Middle Twentieth Century," in MAARTEN BOS (ed.),
The Present State of International Law and
Other Essays (1973); MOSES MOSKOWITZ, International Concern with Human Rights (1974); MANOUCHEHR GANJI, The
Realization of Economic, Social, and Cultural Rights: Problems, Policies,
Progress (1975); RICHARD P. CLAUDE (ed.), Comparative
Human Rights (1976); THOMAS BUERGENTHAL (ed.), Human
Rights, International Law, and the Helsinki Accord (1977); FRANCISZEK
PRZETACZNIK, "The Socialist Concept of Human Rights: Its Philosophical
Background and Political Justification," Belgian Review of International Law, 13:239-278 (1977); FOUAD AJAMI,
Human Rights and World Order Politics
(1978); JAMES AVERY JOYCE, The New
Politics of Human Rights (1979); B.G. RAMCHARAN (ed.), Human
Rights: Thirty Years After the Universal Declaration (1979); MYRES S.
McDOUGAL, HAROLD D. LASSWELL, and LUNG-CHU CHEN, Human
Rights and World Public Order: The Basic Policies of an International Law of
Human Dignity (1980); RICHARD A. FALK, Human
Rights and State Sovereignty (1981); LOUIS HENKIN (ed.), The
International Bill of Rights: The Covenant on Civil and Political Rights (1981),
and The Rights of Man Today (1978);
S.P. MARKS, "Emerging Human Rights: A New Generation for the 1980s," Rutgers
Law Review, 33:435-452 (Winter 1981); A.H. ROBERTSON, Human
Rights in the World: An Introduction to the Study of the International
Protection of Human Rights, 2nd ed. (1982); KAREL VASAK (ed.), The International Dimension of Human Rights, 2 vol., trans. from the
French (1982); PAUL SIEGHART, The
International Law of Human Rights (1983); and HURST HANNUM (ed.), Guide
to International Human Rights Practice (1984).
J.E.S. FAWCETT, The Application of the European Convention on Human Rights (1969);
S. MARKS, "La Commission permanente arabe des droits de l'homme," Revue
de droits de l'homme/Human Rights Journal, 3:101-108 (1970); FREDE CASTBERG, The European Convention on Human Rights, trans. from the Norwegian
(1974); COUNCIL OF EUROPE, European
Convention on Human Rights: Collected Texts (1975); A.H. ROBERTSON, Human
Rights in Europe, 2nd ed. (1977); THOMAS BUERGENTHAL and ROBERT E. NORRIS
(eds.), Human Rights: The Inter-American System (1982- ); R. GITTLEMAN,
"The African Charter on Human and People's Rights: A Legal Analysis," Virginia
Journal of International Law, 22:667-714 (1982); and U. UMOZURIKE, "The
African Charter on Human and People's Rights," American
Journal of International Law, 77:902-912 (October 1983).
Human
Rights Law Journal (quarterly); Human
Rights Quarterly (formerly Universal
Human Rights); The Human Rights Review
(three times a year, 1976-81); and Revue
des droits de l'homme/Human Rights Journal (quarterly, 1968-79). |
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