Реферат: Solidarity rights: universality and diversities

The next suggestion of the collective rights’ critic is the uncertainty of the opposing party in emerging obligation. It is not difficult to identify the entities that have the duty to respect and secure the rights of individuals (the State, its government, or other public authorities). This obligation is imposed on those who have it in their power to perform them. Hence, it is not clear who is in power to ensure for people the right to dispose of its natural wealth and resources for example. In Karel Vasek’s view the solidarity rights are rights with undetermined subjects and opposing to all centers of power.[78] That power can be spread very thinly over other States, public and private ,national and international bodies, and many individuals. The right to peace, the right to a healthy environment and similar rights can be considered as rights even not of a group of people, but of the whole human race entailing obligations of all the above-mentioned subjects and the human race itself. It is almost impossible to demonstrate that any one, or more of them has breached the obligation, since collective rights might be viewed as being “higher” than the level of states’ responsibility, which argument supports the opinion about legal non-enforceability of collective rights.

The possible solution could be to regard a state as responsible before it’s population for performing in it’s competence the duties imposed by collective rights’ obligations, and as a representative of it’s population in protecting these rights onthe international level,[79] bearing in mind that these are primarily governments, who have to take the prime responsibility for promoting and protecting human rights.[80]

Some commentators consider collective rights as a product of both the rise and the decline of the nation-state in the last half of the 20th century.[81] In this case collective rights are understood as reflecting the emergence of Third World nationalism and its "revolution of rising expectations" (i.e., its demand for a global redistribution of power, wealth, and other important values or capabilities)and suggesting the impotence or inefficiency of the nation-state in certain critical respects.[82]

Considering the role of states with regard to collective rights some writers “distrust” collective rights since states might interpret these rights as state’s rights widening the area for individual rights abuses. However, states violate therights of collectives in the same way as they violate the rights of individuals. They also promote the rights of collectives as they promote the rights of individuals.Therefore, collective rights have to be opposable to the states in the same manner as individual rights. Considering the nature of collective rights, some of them have to, and are able to be opposed against foreign states and against the international community as well. The latter characteristic demonstrates an unarguable advantage of collective rights before individual rights. [83]

The status of collective rights differs not only in scientist’s views, but also in accordance with a kind of geographical criterion. Collective rights are traditionally given more attention in the non-Western societies, where thecommunal dimension is more important to individual well being than in the Western societies.The interests of thegroup are automatically among person’s interests.[84] On this reason international human rights frequently undergo critic in the non-Western countries, since the conflict between the individual and the community is the base of the human rights law originated in the Western countries. The promotion of collective human rights expresses the efforts of non-Western governments to assert their values on international level. As an example of this tendency may serve the 1976 Universal Declaration of the Rights of Peoples adopted in Algiers. Upon the non-Western way of thinking are based the so-called collective “Third Worldist” and “globalist”approaches[85] to collective human rights similarly perceiving these rights as a proper response to the globalization and the unconditional control of the Western countries over the international politics.

In this way some commentators challenge the universality of collective rights on the ground, that some groups of peoples do not need them at all. It can be true with regard to minority and indigenous peoples’ rights, but this argument is void concerning other collective rights, which are attributed to all people. For example, peoples from rich countries enjoy a right to development on an equal base with people from poor ones, but the protection of the first’s right does not require any action. In the same way providing for special rights to children or women doesn’t violate their universality. Eva Brems argues that human rights can be stipulated on behalf of certain categories of individuals or groups as long as these same rights are not denied to others.[86]

It seems that the arguments against collective rights are often based on the fact that many people are less sympathetic to the rights of others as a group, especially, when that group is perceived as very different.[87] The international collective human rights’ concept is still in process of development, and that we may say about many of international human rights. However, such a view is particularly true with regard to this group of rights. The potential of collective rights is great and the view that “individual human rights … are a safer and probably more effective course to pursue human rights”[88] will probably change. Collective human rights are recognized and protected in many of international human rights documents. There is a large academic interest to the topic as well, especially in connection with the globalization issues. And, although there is a role for international human rights instruments they in themselves will not rid the world of human rights violations.[89]

[1] Eva Brems, Human Rights: Universality and Diversity 67 (2001).

[2] Paul Sieghart, The international law of human rights 367 (1995); Jose Ayala-Lasso, The Universality of Human Rights, in Human Rights and Humanitarian Law. The Quest for Universality 93 (Daniel Warner ed., 1997).

[3] Eva Brems, Human Rights: Universality and Diversity 67 (2001).

[4] Eva Brems, Human Rights: Universality and Diversity 67 (2001).

[5] Burns H. Weston,Human Rights the Content of Human Rights: Three Generations of Rights (visited Aug. 14, 2002) <http://www.uichr.org/features/eb/weston4.shtml>.

[6] Jose Ayala-Lasso, The Universality of Human Rights, in Human Rights and Humanitarian Law. The Quest for Universality 91 (Daniel Warner ed., 1997).

[7] Eva Brems, Human Rights: Universality and Diversity 68 (2001).

[8] Paul Sieghart, The International Law of Human Rights 368 (1995).

[9] James Crawford, The Rights of Peoples: ‘Peoples’ or ‘Governments’?, in The Rights of Peoples 57 (James Crawford ed.,1988).

[10] Ian Brownlie, The Rights of Peoples in Modern International Law, in The Rights of Peoples 124 (James Crawford ed., 1988).

[11] Burns H. Weston,Human Rights the Content of Human Rights: Three Generations of Rights (visited Aug. 14, 2002) <http://www.uichr.org/features/eb/weston4.shtml>.

[12] Charter of the United Nations (visited July 20, 2002) <http://www1.umn.edu/humanrts/instree/chapter1.html>.

[13] International Covenant on Civil and Political Rights (visited July 20, 2002) <http://www.unhchr.ch/html/menu3/b/a_ccpr.htm>; International Covenant on Economic, Social and Cultural Rights (visited July 20, 2002) <http://www.unhchr.ch/html/menu3/b/a_cescr.htm>.

[14] African Charter on Human and Peoples' Rights (visited July 21, 2002) <http://www1.um n.edu/humanrts/instree/z1afchar.htm>.

[15] Paul Reeves, The Human Rights of Indigenous People: Tiptoeing Towards Self-determination, in Universal Human Rights? 68-69 (Robert G. Patman ed., 2000).

[16] Convention on the Prevention and Punishment of the Crime of Genocide (visited July 20, 2002) <http://www.preventgenocide.org/law/convention/text.htm>.

[17] International Convention on the Suppression and Punishment of the Crime of Apartheid (visited July 20, 2002) <http://www.unhchr.ch/html/menu3/b/11.htm >.

[18] International Convention on the Elimination of All Forms of Racial Discrimination (visited July 20, 2002) <http://www.unhchr.ch/html/menu3/b/d_icerd.htm>.

[19] Eva Brems, Human Rights: Universality and Diversity 479 (2001).

[20] Nathan Lerner, Group Rights and Discrimination in International Law 10 (1991).

[21] Nathan Lerner, Group Rights and Discrimination in International Law 11-14 (1991).

[22] For example, Articles 86 and 93 of the Treaty of Versailles of 1919 (visited July 20, 2002) <http://www.lib.byu.edu/~rdh/wwi/versailles.html >; the Polish-German Upper Silesia Treaty of 1922 not only guaranteed certain rights – including life, liberty, and the free exercise of religion – for all inhabitants, and equal treatment before the law and the same civil and political rights for all nationals, but also the same treatment and security in law and in fact to all linguistic, or ethnic minority groups of nationals; the right of minority groups to establish schools and religious institutions and to use their own language for publications, at public meetings, and before the courts. (visited July 24, 2002) <http://history.binghamton.edu/resources/bjoh/PolesAndJews.htm>.