International Human Rights Day, December 10, gives us the opportunity to remind ourselves of the importance and need to protect human rights and freedoms. First of all, human rights and freedoms represent an organic part of international public law and, therefore, share its inherent characteristics, which mainly refer to the fact that international law is an instrument for expressing and harmonizing the particular interests of states as original and primary subjects. Today's state of human rights and freedoms in the world is a confirmation of the long-ago statement of the Swiss judge of the Permanent Court of International Justice, Max Huber, that international law is a system of norms that states adopt, establish among themselves, but also violate and decide whether to apply or not. International human rights still today have a political character, since, on the one hand, as a rule, they are realized and relate to the state, and, on the other hand, they represent an ideological and normative expression of what the international community and its members - the states - should be and are not.
The concept of human rights and freedoms is the result of the (all) centuries-old history of conflicts and constant social (political) changes that have accompanied humanity, and it owes its contemporary appearance to the tragedy brought about by the First and, especially, the Second World War, whose roots we find in European thought in the 19th century. and the 20th century. The suffering of over 4 million Indians in North America during the arrival of Europeans represents, in the words of Noam Chomsky, the first original sin of American society. The same fate was experienced by the indigenous population of Central and South America. The suffering of the Armenians in Turkey, the Holocaust, Apartheid, the Cambodian genocide, the Tiananmen massacre, the civil war in the former Yugoslavia, the war in Syria and numerous other cases are evidence that the people become fanatical faster than they are educated - fanaticism is a remnant of barbarism. If humanity had always been reasonable, Arthur Schopenhauer points out, history would not be a long chronicle of stupidity and crime.
The idea of protecting human rights and freedoms represents the idea of a humanistic view of man and the world he lives in, that is, a civilizational response to the history of human relations. The construction of the post-war world in 1945 tore the issue of human rights and freedoms from the exclusive competence of states, i.e. human rights acquire a universal and international character. However, their list and content remained outside the international public order embodied in the UN Charter due to the interests of the victorious powers. Namely, such a state of affairs was, among other things, in favor of Great Britain and France because of their colonies, the USSR because of the so-called Gulag, and the USA for its own de facto i de jure racial discrimination. Also, this was seconded by the reasons for the plurality of views and understanding of human rights and freedoms, i.e. disagreements between capitalist, communist and other regimes. Hoc loco, historian Lynn Hunt states in her book Inventing Human Rights: A history that the concept of human rights and freedom is a product of the cultural tradition of the West and that as such they are not truly universal, i.e. they must also be understood from other cultural traditions, primarily from Africa and Asia. Regardless, the UN has set itself a goal promotion and encouragement of respect for human rights and basic freedoms for all regardless of race, gender, language or religion (see Article 1, Paragraph 3 of the Charter) whose implementation is in many cases burdened by political opportunity and the balance of power.
What was not done at the founding session of the UN in San Francisco in 1945 led to the formation of a Commission of 18 members tasked with drafting the International Charter of Human Rights. Historical data caused the Commission to start drafting a legally non-binding document, so on this day in 1948, the Universal Declaration of Human Rights was adopted in the Palace of Chaillot in Paris and proclaimed by UN General Assembly Resolution 217 (III). For example, the US delegation explicitly stated on that occasion that the Declaration is not an international treaty, therefore, a legally binding act. It is interesting that Yugoslavia was one of the 8 countries that abstained during the vote (there were 40 in favor, with no dissenting votes). It is indisputable that the main creators - the Canadian John Peters Humphrey, Eleanor Roosevelt from the USA, the French René Cassin and others - found the ideological basis in the American Declaration of Independence from 1776 and the French Declaration on the Rights of Man from 1789, which represented a turning point in the struggle for freedom, equality and justice.
The declaration in its 30 articles guarantees both the first generation of rights (civil and political) and the second generation (economic, social and cultural rights). Article 1 states that all human beings are born free and equal in dignity and rights. Article 28 points out that everyone has the right to a social and international order in which the rights and freedoms set forth in this Declaration can be fully realized. However, the order in which the Declaration can be fully realized remained, on the one hand, in the legal deficiency of the act (declarations are in principle legally non-binding acts), and, on the other hand, in the environment of Cold War tensions and ideological divisions. In 1966, the provisions of the Declaration were translated into legally binding acts through two international treaties - the Covenant on Civil and Political Rights and the Covenant on Economic, Social and Cultural Rights. The separation of civil and political rights from economic, social and cultural is the result of the conflict of interests of the East and the West, which has as a practical consequence the inequality of legal force, i.e. the Covenant on Civil and Political Rights constitutes legal obligations at the moment of entry into force for the contracting states (see Article 2 ), and the PESKP obliges the contracting parties to take measures that should lead to the gradual creation of conditions for the application of economic, social and cultural rights, i.e. the obligations established by this Pact are of a programmatic nature (see Article 2). The regional international framework is also characterized by a dichotomy - the European Convention (1950) guarantees exclusively civil and political rights, while the rights of the second generation within the Council of Europe are governed by the European Social Charter (1961), which has a different legal regime compared to the Convention.
The Universal Declaration represents a fundamental act in the matter of human rights and freedoms, and its provisions found their place in a series of international instruments and internal acts (constitutions, laws, etc.). It can be concluded that with its adoption, the individual moved from the status of an object to the status of a subject of law, which, in the context of international law, he has not yet reached, and the question is whether he will ever reach it. However, hope in this direction is given by the European Convention and its own longa manus - the practice of the European Court of Human Rights in Strasbourg, which again separates the concept of human rights from its universality and ties it to Europe. Thus, the general (common) standard and ideal of the Declaration that should be achieved by all peoples and nations of the world would be lost sight of.
Ultimately, the question arises whether the above is just a mere coincidence of historical events or is there something else hidden? Namely, the rule of law has not yet replaced the rule of politics (force). in foro interno so too in foro externo. The solution lies in the struggle of the individual - each of us - against his own limitations, because true legitimacy, legality and separation of powers, i.e. the originality, universality and inalienability of human rights and freedoms in permanent political organizations such as the state and the international community cannot be realized due to human imperfection, i.e. society and the world in which he lives. Let's not forget the words of one of the founders of universal human rights, Thomas Paine: My country is the world, humanity represents my countrymen, and doing good is my religion.
The author is a doctoral student in legal sciences and a member of the CIVIS at the SO Bar
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