The International Dimensions of Human Rights

The International Dimensions of Human Rights

Description

“Human rights are neither a new morality nor a lay religion and are much more than a language common to all mankind. They are requirements which the investigator must study and integrate into his knowledge, using the rules and methods of science, whether this is philosophy, the humanities of the natural sciences, sociology or law, history or geography. In a word, the task is gradually to build up or promote a genuine scientific formulation of human rights.” This work is a treatise intended to be of use in the teaching of human rights; it has been produced with this purpose in mind. Since the Second World War, there has been a prodigious development of ideas, expressions, behavior patterns, rules and institutions, the novelty of which lies not so much in its nature as in the scal on which it has occurred. This has resulted in what may truly be termed a “human rights phenomenon”. True, this phenomenon has not arisen ex nihilo; it has derived from a past which is common to all mankind in that human rights have benefited from every major trend of thought. It is not our intention to demonstrate this again because Unesco, ever mindful to “give credit where credit is due” by tracing back to their origins the ideas which inspire and guide us, has already done so. In 1965, at the memorable Oxford Round Table, the philosophy and content of the Universal Declaration of Human Rights were examined in the context of the various religious traditions, ideologies, cultures and dominant values of various types of society. Then, the admirable work, Birthright of Man, although modestly described as a “selection of texts’, in fact provided a dazzling display of those fraternal bonds which cannot but unite all those who together constitute the human race. To make a summary here of these two fundamental publications would be to mutilate them, but they must be constantly referred to, it the inspiration and the very substance of this treatise are to be understood. While the “human rights phenomenon” derives from the past, it is also tied in with the present, a present in the process of continual change. In the face of this contemporary phenomenon there is but one valid approach: that awareness from which the human rights phenomenon springs must, if it is not to lapse into a sterile romanticism of fall prey to an exclusive ideology, thereby giving rise to an irreversible wave of violence, be sustained by objective and impartial work. In other words, the specific manifestation of human rights in the latter half of the 20th century makes it mandatory that these rights be regarded as “subjects of scientific investigation” constituting a particular field of study, in order that respect for human rights be based upon scientific data rather than dictated by the express requirements of a dogma. It is for this reason that the contemporary phenomenon of human rights demands that a genuine science of human rights be developed, the objectivity and rigour of which will vouch for the independence of human rights from any particular school of thought or any particular interpretation of reality. Any science in the process of formation must start off by defining its subject and working out its method. This was one of the goals of the Nice Colloquium, organized on 5 and 6 March 1971, at the request of Unesco, by the International Institute of Human Rights, on the theme: “The Methodology and Teaching of the Science of Human Rights”. At the colloquium René Cassin, the principal drafter of the Universal Declaration of Human Rights, gave a deductive definition. Conducted with the help of a computer which was fed with more than 50,000 terms relating to “human rights,” this study has enable me, by using those terms which were most frequently employed, to define the science of human rights as follows: “The science of human rights concerns the individual person living within a state who, being accused of an offense or being the victim of a situation of war, benefits from the protection of the aw, due to either the intercession of the national judge or that of international organizations (such as the organs of the European Convention on Human Rights), and whose rights, particularly the right to equality, are harmonized with the requirements of public order.” One cannot fail to be struck by the fact that in this second definition, which is more descriptive than teleological, it is the law, synonymous with freedom, which occupies the central place among the means of protecting human rights, and that it is equality which, among human rights, is given the leading place. It is obvious, as suggested by the two definitions, that in the study of human rights all the human disciplines interconnect and enrich each other to form, with human rights, the equivalent of philosophy in the Middle Ages, the science of sciences. Even though some will balk at this “domination” of human rights over the other sciences, we shall certainly be quite prepared to draw the conclusion that there is a need for an interdisciplinary study of human rights. Indeed, this is the only method which will make it possible to grasp the wealth and variety of human rights as well as their relative and global character. This treatise is, however, primarily a legal treatise, intended first and foremost to be of use in the teaching of human rights in Faculties of Law and in Faculties of Political and Social Sciences. This juristic approach is not without risks insofar as, in sociology, it will not provide any clear evidence of the fact that human rights constitute one element among others of the structures of society, and that, consequently, violations of human rights may be total and not particularized, being the result of certain inherently unjust and inhumane social structures. This danger of the study of human rights being thereby deprived of some of its value is undeniable. However, this can be surmounted b increasing the number of interdisciplinary research undertakings in the field of human rights; Unesco will aid in this task in coming years, as is stressed in its Medium-Term Plan. The truth of the matter is that this first treatise on human rights is primarily a legal treatise for practical reasons and because there is a need for such a work in education. The language in which human rights are formulated is primarily the language of law; it consequently falls to the jurist to be the first to gather together the various scattered elements in this field and to provide a survey of them. Thus, it was the Law Faculties throughout the world who were the first to open the door to the scientific study of human rights. Today their teachers and students demand teaching materials which will enable them to go beyond general notions now taught everywhere in courses on constitutional law or in those relating to the public international law. It is primarily for them that this treatise is intended. This “Unesco Treatise on Human Rights” is a collective work. Having had the honour of overseeing its preparation, I have taken care not to modify its collective character, and each author has been allowed complete freedom to guarantee the independent nature of the treatise. No leading idea governs this treatise, save that it should be of use in the teaching of human rights; it expresses no particular ideology, even though it tends perhaps to reflect all ideologies, owing to the choice of its authors. Of course, this diversity is not without drawbacks. For example, after reading this treatise, the reader will not know if the right to self-determination is a genuine human right, if it is a necessary, but not sufficient, condition for human rights, or if it is a so-called constitutional principle of human rights. All these theses are formulated, explicitly or implicitly, in this work. In the final analysis, the diversity of views presented constitutes an invitation to the reader to exercise his own right as a human being to choose freely one or the other of these theses or to propose his own. The divergence may be even more fundamental. Thus, some of the authors of the treatise support the thesis of absolution sovereignty of the State and consequently, the absolute bearing of Article 2, paragraph 7, of the United Nations Charter, being of the opinion that human rights are solely a matter of domestic jurisdiction and that the international “protection” of human rights is in actual fact merely a particular form of co-operation between the sovereign States. Other authors of the treatise are far from subscribing to this thesis. While not questioning the notion of sovereignty, they emphasize its limits and relative character and, most of all, they stress its subordination to international law, of which human rights form a part, particularly since human rights have been enshrined in several provisions in the United Nations Charter. In point of fact, the opinions differ only in regard to the extent to which sovereignty is, if not limited, at least determined in respect of its exercise, by the development of international law and, primarily, by international human rights law, the existence of which, in my opinion at least, is now difficult to deny. Other examples of similarly conflicting views, and consequently of the same freedom of critical opinion, can be found in the pages of the treatise. Is this a defect? I don’t think so, being of the opinion that all the theses deserve to be known provided, however, that they are set forth in a spirit of tolerance and of respect for others, as this treatise seeks to do. If, however, the treatise contains anything that gives offence, it does so unintentionally and, above all, unwittingly.

Publication Date

1982

Edition

Rev. English

The International Dimensions of Human Rights

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