FOLLOW US
Y. von Stedingk: Rights and Responsibilities of the Individual to the Community and Others
Written by Dr. Yvonne von Stedingk, former member, Directorate General of Human Rights, Geneva
Wednesday, March 25, 2009
Presentation at a UPF conference on Leadership and Good Governance: Innovative Approaches to World Peace
Paris, France, May 2006
With a direct reference to the theme of ''Leadership and Good Governance: Innovative Approaches to World Peace,'' I think it can safely be said that since time immemorial few questions have occupied the minds of mankind so much as that of war and peace.
Wars are fought between States, but States are made up of individuals, individuals who most probably, deep down, did not want anything more than peace, for their families, for their children and for themselves.
How come then that individuals, people like you and me, have not been able to prevent wars, neither in the past nor those which are being fought today - although in different ways and by different means? Here I am not thinking of weapons alone.
Is it conceivable that we, individuals, are not taking our responsibilities vis a vis the community and others seriously, or is it that those responsible for the formulation of rules and regulations in this respect have been and still are lacking in vision and determination? And how, in this connection, is the notion of duties and responsibilities — versus rights of the individual towards the community and others — reflected in some of the main instruments which form part of international and human rights law?
While some argue that this question is adequately dealt with in existing human rights standards, others do not share that view. Hence, there have been, and still are, calls for a new document dedicated to the question of human responsibilities, as opposed to human rights, based on ethics, morality, equity, justice, and human solidarity and also reflecting the necessary balance between rights and responsibilities.
In the following, I shall reflect briefly on some of these views, starting with a reference to Article 29 (1) of the Universal Declaration of Human Rights (UDHR), where human rights and responsibilities found its first and maybe most significant original expression. This was subsequently developed further in two Covenants, one Optional Protocol, and two Declarations as well as in some regional human rights standards.
In the second part of my paper, I shall refer to some of the documents which have been developed in the past by those who have been calling for a Global Ethic, claiming that the importance and the very timeliness of the topic merits a new international document.
For the purpose of this paper, the term ''international human rights standards'' refers generally to the entire body of documents adopted by the UN and by regional organizations and to which selective references will be made in the text. The terms ''responsibilities'' and ''duties'' will be used interchangeably to indicate actions and attitudes not dictated by law alone but corresponding to social ethics and human solidarity. The term ''community',' finally, will be used in its widest sense, meaning the world community, the family of nations, humanity.
References to standards of the United Nations with respect to human rights are of a particular relevance today, when time and efforts of many are focused on the reform of the United Nations in general, and on the entire human rights ''machinery'' in particular. This latter finds its expression primarily in the replacement of the Commission on Human Rights by a Human Rights Council as well as the strengthening of the Office of the United Nations High Commissioner for Human Rights (OHCHR).
When, over half a century ago, the final wording of the Charter of the United Nations was agreed upon, stating proudly in the Preamble: ''We the Peoples... '' it is well-known that to arrive there had been no easy task.
Hence — and with respect to the ongoing UN reform — to formulate and find the right expression for the same underlying values in the totally different, globalized, world of today cannot be an easy task either; that the discussion in this regard is going on in different fora is only right and good. Yet, as has been stressed, ''there is a distinction between the contemporary experience of change and that of earlier generations because never before has change come so rapidly, ... on such a global scale and with such global visibility." "A time of change when future patterns cannot be clearly discerned is inevitably a time of uncertainty. There is need for balance and caution — and also for vision'' x) 1.
However, the Charter did not list fundamental freedoms and human rights but introduced the principle of respect for basic human rights into international law. Moreover, while imposing corresponding obligations on States, it did not of itself improve the lot of the individual although opening up a broad way for the further development relating to the protection of the individual.and which found its further expression in the Universal Declaration of Human Rights as proclaimed on 10 December 1948. x) 2.
While early discussions on the draft Universal Declaration of Human Rights indicate general agreement that all individuals, as social beings, owe duties to their respective communities, there was some disagreement whether such duties should be spelt out in detail. and also about the very nature of such duties. In the course of these and subsequent debates concerning other Human Rights instruments, this matter has occupied the minds of many over the years and are, as we shall see in the following, still being discussed today. x)3.
The first and maybe most important reference to the notion that individuals have certain general duties to the community and to others found its expression in the first of three articles, Article 29(1), of the Universal Declaration of Human Rights which reads:
Everyone has duties to the community in which alone the free and full development of his personality is possible.
It is interesting to note that this most significant universal statement of fundamental human rights and freedoms, the Universal Declaration of Human Rights i.e., and which the General Assembly of the United Nations proclaimed as a standard for all peoples and all nations, does not further qualify such duties vis a vis the community or the state.
This may be explained by the fact that the very purpose of the Declaration was the protection of the individual in relation to the state. And, indeed, looking back at the relationship between states and individuals in the past, it may well be concluded that while there is a need for protection of the individual vis a vis the state, there is no imperative necessity to safeguard the state against the individual.
The reference to the community, ''everyone has duties to the Community" as given in the same paragraph of the document, contains a qualification as to why this is so, stating that ''it is only within the community that the free and full development of his personality is possible." This provision has been interpreted as being one of a moral nature in the sense that it lays down a general rule for individual behavior in the community in which the individual belongs.x)4.
Another scholar has the following to say to this important article ''....it is arguable that in imposing general, unspecified duties to the community on individuals, as opposed to enumerating specific duties, Article 29(1) effectively involves an overriding individual duty of respect for others and consideration of collective interests, to which the exercise of individual specified rights is conditioned. In explicitly mentioning individual duties to the community, Article 29(1) strikes a balance between the due recognition of individual human rights and the acknowledgment of individual duties to the community and the State''.x)5.
However this article is being interpreted and with whatever inherent shortcomings may be attached to it, Article 29(1) is, nevertheless, generally considered as one of the key articles of the Universal Declaration and has subsequently been developed further in numerous instruments, which illustrates well the great importance attached to it.
With the General Assembly of the United Nations not being satisfied with a mere Declaration on human rights — a declaration does not carry any legal force — it was necessary to turn its language into binding treaty commitments, which could be monitored and eventually also enforced. Thus, the Commission on Human Rights was entrusted with the task of drafting the text of a Covenant on Human Rights, drawing heavily on Article 29(1). However, debates on alleged differences in the nature of civil and political rights on the one hand, and economic, social and cultural rights on the other, and with the ideological debates of the Cold War intervening during the 1950's, made this task difficult.
Therefore, in the end it was resolved to prepare two separate treaties, containing similar provisions, each dealing with one category of rights, while at the same time recognizing the unity of the ultimate common aim of all members of the human family being the foundation of freedom, justice and peace in the world, as well as the obligation of States to ensure the universal respect for, and observance of, human rights and fundamental freedoms.
It took almost 20 years of work for the International Covenant on Economic, Social and Cultural Rights and the International Covenant on Civil and Political Rights — as well as the Optional Protocol to this latter — to be completed in 1966 and, after ratification of the required number of states, to enter into force in 1976.
Today, these are the most important international human rights treatises which, together with the Universal Declaration of Human Rights, form the International Bill of Human Rights.
In two subsequent UN human rights instruments the language of Article 29(1) is further developed, i.e., in The Declaration on the Right to Development and the Development on Human Rights Defenders. While the former establishes the right of all peoples to participate in, contribute to and enjoy economic, social, cultural and political development, the latter — and more recently adopted UN human rights instrument — constitutes, as indicated by its full name, the Declaration on the Right and Responsibility of Individuals, Groups and Organs of Society to Promote and Protect Universally Recognized Human Rights and Fundamental Freedoms, commonly known as the Declaration on Human Rights Defenders. The language in both these Declarations are, once more, inspired by Article 29(1) but going further.
Thus, the former by stating that individuals have a responsibility for development, and for promoting conditions relating to development, while the latter, by specifying that among the general duties to the community and responsibilities is to safeguard and to help building democracy, and to promote a social and international order, as conducive to human rights.x)6.
We can see this same development in human rights standards, adopted and implemented by regional organizations in Europe, America, and Africa.
In Europe, western nations established the Council of Europe in 1949 as the social and cultural counterpart to the defence oriented North Atlantic Treaty Organization (N.A.T.O). One of the first tasks of the organization was the drafting of The European Convention for the Protection of Human Rights and Fundamental Freedoms, which was adopted in Rome on 4 November 1950 and entered into force on 3 September 1953.
The European Convention itself covers only civil and political rights, while social, economic, and cultural rights in Europe are more systematically protected by the European Social Charter adopted in 1981.
Moreover, the European Convention generally does not directly or explicitly impose duties upon private individuals.but does so indirectly as do several Protocols to the European Convention.
Thus, for example, Freedom of Expression, protected under Article 10 of the Convention, and regarded as one of the pillars of democracy, belongs in this context; it carries with it ''duties and responsibilities'' yet may be subjected to various constraints ''necessary in a democratic society.'' x)7.
In this context, due reference should also be made to those European states which have participated in the so-called Helsinki Process and which have recognized individual duties in the human rights field, although not in a binding way.
Two other regional systems, where the duties of the individual are contained, should also be referred to here, i.e., the American and African instruments in this respect.
In the American Declaration of the Rights and Duties of Man of 1948 there are many references to the duties of the individual as, for example, in the first paragraph of the Preamble stating; ...''The fulfillment of duty by each individual is a prerequisite to the rights of all. Rights and duties are interrelated in every social and political activity of man. While rights exalt individual liberty, duties expresses the dignity of that liberty.''
Subsequently, the Organization of American States in 1969 adopted the legally binding American Convention on Human Rights, Art, 32(1) referring to the general duties of the individual, stating that ''every person has responsibilities to his family, his community and mankind.''
The African Charter on Human and Peoples Rights, adopted in 1981, also contains several Articles referring to individual duties with particular reference to the duties toward the family and society, Art. 27(1) as well as the duty of the individual to respect and consider his fellow beings without discrimination and to maintain relations aimed at promoting, safeguarding and reinforcing mutual respect and tolerance, Art. 28.
In Article 29, the African Charter goes even further than this by listing a number of additional duties on individuals relating to the family, to work and to the duty to contribute to the moral well-being of society. Moreover, a number of duties towards the State are also identified.x)8.
In addition to the references made in UN and regional rights standards to general duties which individuals have to the community, human rights standards also include references to the duties which fall on particular, vulnerable groups of individuals in society. These include children, detained persons, mentally handicapped, the disabled, refugees and stateless persons etc. In some instances there is specific mention of duties of individuals who have a direct responsibility for protecting the rights of the group in question. An important example of such standards can be found in the UN Convention on the Rights of the Child and which refers to the very special duties of the parent to provide for the child. This Convention, one of the most widely accepted instruments of its kind, entered into force 2 September, 1990.
In the foregoing, reference has been made to numerous rights and duties of the individual to the community and others, as reflected in a variety of human rights standards and — here — basically going out from Article 29(1) of the UDHR. However, as already stressed, to many these instruments do not go far enough, legally as well as ethically, and efforts to come to terms with that important aspect are continuing to this day.
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Ethics, the underlying values of our actions and thinking and the rules and regulations guiding us in this regard are, obviously, a source of great concern to us all. With regard to human rights standards, efforts to improve and change some of what we already have in this regard has, over the years, found their expressions in different forms ; in movements, documents, declarations and resolutions etc. Spiritual as well as political leaders are among those who most persistently have been calling for a new global ethic.
As some of the more pertinent examples can be cited The Declaration Toward a Global Ethic, adopted by the socalled Parliament of the World's Religions at a meeting held in Chicago in 1993.
The Declaration identified only general ethical principles including ''to treat others as we would wish others to treat us'' stating as ''irrevocable directives'' for the global ethic a commitment to a culture of non-violence and respect for life; of solidarity and a just economic order; of tolerance, and a life of truthfulness as well as a culture of equal rights and partnership between men and women.
A call for a new focus on duties and responsibilities has also come from the Inter Action Council, formed by a group of some 30 heads of State on the initiative of Takkeo Fukuda, a former Prime Minister of Japan, and Helmut Schmidt, former Chancellor of the Federal Republic of Germany. This Group turned to all heads of state and government as well as to the UN Secretary General and asked to support the adoption of their Universal Declaration of Human Responsibilities by the General Assembly.
In a long introduction to the 19-point Declaration, the authors addressed, among others, the notions of freedom and responsibility and their interdependence, summing it up by saying that regardless of a particular society's values, human relations are universally based on the existence of both rights and duties.
In the belief that international developments had created a unique opportunity for the strengthening of global cooperation to meet the challenge of securing peace, the Commission on Global Governance, initiated by former West German Chancellor Willy Brandt, was established in 1995 and called on the international community to unite in support of a global ethic of common rights and shared global responsibilities. x9)
This need and wish to work together is not new and was also the guiding vision of the drafters of the Charter of the United Nations. However, what is new today is the interdependence of nations which is deeper and wider than earlier — globalization! — as well as the shift of focus from states to peoples. One aspect of this change is the growth of civil society, as an increased awareness of common, shared values at its best, founded on a sense of common responsibility for present and future generations.
Much of very interesting and valuable thinking along these lines is expressed in the Report of the Commission on Global Governance: ''Our Global Neighborhood' — referred to earlier —which has served as a source of inspiration for much of the following.
The Report makes clear, initially, that ''global governance'' does not mean ''global government'' but rather the intention to strike a balance between basic human values and global diversity as reflected in today's society. It describes how the world has been transformed since 1945; a transformation which requires changes in devising ''governance arrangements'' as expressed, among others, in the process of reforming the United Nations, to explore new ideas, develop new visions and to demonstrate a commitment to shared values. The Report concludes with a call for ''enlightened leadership that can inspire people to acknowledge their responsibilities to each other and to future generations',' expressing the hope that, eventually, a list of embodying all those principles would find their expression in a final, binding, international document.
Critical voices are raised vis-a-vis — and even within — the United Nations with an ever louder call for reform and which is now being heeded.
The underlying notion that the UN Charter was an agreement between States is being criticized in the Report, a criticism which has found many supporters over the years, stating that reforming the United Nations must begin in national — read individual — behavior, claiming that when the UN Charter proclaimed ''We the Peoples... '' the assertion that it was the people of the world creating a world body was little more than ''a rhetorical flourish'' with the proclamation only symbolic for the hopes of the founders of the United Nations for what they were creating. As it turned out, those hopes were not to be fulfilled — save for some rare exceptions as, e.g., during Dag Hammarskjöld's Secretary Generalship — because the people of the world never developed a sense that the UN belonged to them; if it belonged to anyone at all, it was to governments and even there, only to a few of those. And, as concerns governments, the United Nations was there to be used, and in some instances abused, as an instrument of national interest, to be bypassed or to serve national interests as the ''best'' case may be.
However, the United Nations, with its systems, policies and practices, decided by its members, and with its successes and failures achieved and committed by its members and with the members being states, governments, and, ultimately the people, the United Nations is us. It is up to us, therefore, to stand up for what is right and wrong and to act.
It may sound simplistic but, then, most real truths are, basically, very simple.
One reason for hope is the acknowledgment and increased involvement of the growing role and importance of civil society, best expressed in the worldwide movement of non-governmental organizations (NGOs).
As a group, NGOs are diversed, multifacetted, outspoken and, therefore, not always liked. Their perspectives and operations may be local, national, regional or global. Some are issue- or task-oriented, others are driven by ideology. Some have a broad public interest perspective, others have a narrow more private focus. They range from small, poorly founded, grassroots entities — playing an essential role in developing countries -— to large, well supported, professionally equipped bodies. NGOs, national as well as international, are not without imperfections. Nonetheless with their wide variety they bring expertise, commitment and grassroots perceptions of great value to better governance.
Over the years, NGOs have provided vital assistance to the UN and its specialized agencies — with expertise and, not seldom, considerable funding — towards projects in the economic, social and humanitarian areas. Also, by nature of their identity, they often serve as unofficial or alternative channels of communications for governments, thereby helping to establish relationships which, in turn, may help create the necessary trust to bridge political gaps. In their great and manifold variety, NGOs constitute and represent the voice of the voiceless and since there are so many in that category, the voice — read statements — of the NGOs at conferences, such as the former Commission on Human Rights, these are, often to the great distress of Delegates, sometimes very time consuming.
With the Commission on Human Rights as of June 2006 to be replaced by a Human Rights Council, the NGO community has got worrying signals. Among others, it has penetrated that NGOs, in the future, must speak with ''one voice'' — something which falls on its own absurdity and impossibility, see above. Efforts can, and have, in the past, been made towards joint statements and which is possible up to a point, but cannot and should not be applied ad absurdum because then, the very uniqueness of NGOs, their task and contribution towards solving a majority of the world's problem, will get lost.
It is hoped, therefore, that all UN statements and declarations — from the Secretary-General and down — in praise of the work of, and need for, the NGOs will not be entirely forgotten when this new human rights body takes up its activities.
To one of the more vocal advocates for UN reform, and coming from within the organisation, belongs the UN Special Rapporteur on Human Rights and Responsibilities, Miguel Alfonso Martinez. In his Final Report to the then Commission on Human Rights, (E/CN.4/2003/105), the Special Rapporteur, in his 72-point Conclusions, arguing, among others, for a new international standard, states in his Recommendations:
''The process of drafting and adopting this new standard should take place within the framework of the higher bodies of the United Nations specializing in human rights questions. These bodies offer the widest possible opportunities for both Governments and NGOs — throughout the entire period of the drafting — to participate fully and actively in the formulation of the possible contents of its final text''.
Attached to the Report, in an Annex, is a ''Pre-Draft Declaration on Human Social Responsibilities'', as proposed by the Special Rapporteur. See further comments 10).
To conclude, let us recall that the very purpose of creating a new world body — the United Nations — as laid down in its Charter and seen against the time and background of the horrors of the Second World War was, primarily, aimed at regulating the behavior of States vis a vis the Individual, while at the same time reaffirming the dignity and worth of the human person as well as the respect for human rights.
It is evident, that with the more than fifty years passed since the Charter was written, and many of the original human rights standards created, there is a need for change as expressed in calls, among others, for more emphasis on the individual and his/her rights and responsibilities vis-a-vis society. This is also an important part of the ongoing UN reform, aiming for new perspectives, ways and means adapted to our days and circumstances while, at the same time, preserving and reinforcing much of what has already been obtained in this field. In short; there is a need for change.
The well-known British Writer and Economist, Barbarta Ward, in a paper l971 to the Pontifical Commission on Justice and Peace, has something very good to say to the problematic of change and with which I would like to end this statement:
''The most important change that people can make is to change their way of looking at the world.We can change studies, jobs, neighborhoods, even countries and continents and still remain much as we always were. But change our fundamental angle of vision and everything changes — our priorities, our values, our judgments, our pursuits. Again and again in the history, ... this total upheaval in the imagination has marked the beginning of a new life .... a turning of the heart, a 'metanoia' by which men see with new eyes and understand with new minds and turn their energies to new ways of living." Thank you.
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References:
I) ''Our Global Neighborhood''; The Report of the Commission on Global Governance; Oxford University Press 1995.
1) p.12.
II) Erica -Irene A. Daes; Special Rapporteur of the Sub-Commission on Prevention of Discrimination and Protection of Minorities; Study Series 3 of the UN ''Freedom of the Individual under Law: an Analysis of Article 29 of the Universal Declaration of Human Rights. United Nations, New York, 1990.
2) pp. 3-5.
4) pp. 38-47.
III) ''Taking Duties Seriously: Individual Duties in International Human Rights Law''; A Commentary. International Council on Human Rights Policy 1999. 48, chemin du Grand Montfleury, 1290 Versoix, Switzerland.
3) p. 19.
6) pp. 27-33.
8) Ibid.
9) pp. 7-12.
IV) 5)Douglas Hodgson; Chapter 6; The Position of Individual Duty within the International and Regional Human Rights System. Oxford Press, 2003.
VI) Human Rights Every Day; Human Rights Information Centre, Strasbourg.
7) p. 15.
VII) 10) OCHR; Extract from the Report of the 61st Session of the Commission on Human Rights and attached to the relevant Decision and Report:''37. Human rights and responsibilities.
The Economic and Social Council, taking note of Commission on Human Rights decision 2005/111 of 20 April 2005, endorses the decision of the Commission to request Mr. Miguel Alfonso Martinez, author of the study on human rights and human responsibilities requested by the Commission in its resolution 2000/63 of 26 April 2000, to prepare, without financial implications, for submission to and dissussion at its sixty-second session a new (my italics/yvs) initial version of the pre-draft declaration on human social responsibilities (E/CN.4/2003/105, Annex 1) taking into account the debate held on this matter during its sixty-first session and, in particular, the comments and suggestions advanced by States and international governmental and non-governmental organisations on the pre-draft declaration, as reflected in the compilation published in the report of the Offrice of the United Nations High Commissioner for Human Rights (E/CN.4/2005/99).''