THRESHOLD OF THE XXI CENTURY F ERENC K ONDOROSI 1
1. Globalization and the internalization of human rights
The fi eld of ideas of human rights dates back to the formation of bourgeoisie and the civil revolutions, when citizens’ demands were translated into freedom rights in constitutions and other documents of constitutional importance against the state and ruling power. Economic development including improvements in infrastructure and travel and also expansion of trade intensifi ed not only state-to-state, but also relations among citizens of different states. Intensifi ed relations have brought along phenomena and problems worth to be solved by states together, thus requiring international cooperation and international law.
In the early 20th century, the impacts of economic development reached a certain extent that demanded international regulations of labor conditions (fi rst that of child and woman labor), leading to the foundation of the International
Labor Organization in 1919. Premature attempts of international human rights regulations included fi rst the protection of rights of foreign citizens, later regulation (prohibition) of international-scale issues, such as slave trade and the traffi cking of women, but the real driving force towards international regulation was brought about by the horror of the WWII. It became obvious that no state is entitled to do whatever it wants with its own citizens, and that no state can repeatedly ignore human rights without one way or another affecting other countries, mostly by posing a threat to international peace. Therefore internationalization of human rights – namely creation and further rapid development of the international human rights regulations – can be attributed to globalization. Fundamental rights previously set in national constitutions were lifted to the level of international obligations by international human rights regulations and later the range of these rights has steadily been extended.
Law experts view “the idea human rights (in its moral, political and social sense) is a collective defi nition of the basic values of legal and political culture or the set of legal values of a culture; such values that are a must for a legal system”2. All in all human rights are not isolated legal entities but moral and social values represented in law.
As a result, human rights are “rather diversifi ed, so legal classifi cation offers an easier understanding”3. A well-known method of classifying human rights is as follows:
– protective rights: the right to life and security;
– freedom rights: the freedom of religion, opinion and assembly;
– social rights: the right to work, food and shelter;
– participation rights: the right to take part in both political and economic terms.4
Human rights can be divided on the basis of their subjects: individual and collective rights. Collective rights can by their nature be enjoyed in association with others, such as the freedom of assembly and association. Nowadays rights, mainly rights of certain minorities to geographical, self-governing and cultural autonomy, which are collectively entitled to groups of individuals as legal subjects are becoming more and more important.
The fact that states may exercise limitations on human rights and the conditions under which these limitations are set forth by the international law can form another basis for classifi cation5. There are absolute rights to be
2 BRAGYOVA, ANDRÁS: Can human rights be based on international law? (Or can international law take the place of natural law?) Állam- és jogtudomány, 1990. No. 1–4. 94.
3 WELLER, MÓNIKA: Human rights and European integration. EJMKK, Budapest, 2000. 19.
4 JÜRGEN MOLTMAN: Man, mankind and the right of land. Világosság, 1990. No. 8–9. 635–643.
5 BOKORNÉ SZEGŐ, HANNA: The international community and human rights. In Changes in the
respected even in a state of emergency such as the right to life, prohibition of torture and inhuman treatment, prohibition of slavery and legal penalty with retrospective effect.
According to this way of classifi cation a great deal of the above rights can
“normally” be revoked by the state under well-defi ned conditions: limitations must be based on law, and limitations must aim at the common interest of the society (public order, public moral, public security and public health).
A classifi cation of this kind identifi es a group of rights, where an even wider range of limitations on economic, social and cultural rights can be accepted under certain economic circumstances, in the light of the state’s fi nancial capabilities.
Recently there is a tendency to sort human rights into a system of hierarchy.
“Thus international law agrees on fundamental human rights that are ius cogens, for example the right to life, prohibition of torture, slavery and legal penalty with retrospective effect. These fundamental norms are obligatory without exception, contradicting international legal norms are invalid (ineffective) placing human rights on top of this hierarchy. More numerous are the so-called erga omnes rights, that are obligatory to all parties. Respecting these rights so essential for the international community serves the interest of all states”6.
Most frequently human rights are divided into groups by “generations”
refl ecting differences in time and content in parallel with the three key ideas of the French Revolution: the fi rst generation lists civil and political rights (to ensure freedom), the second economic, social and cultural rights (seeking equality), and the third generation includes collective rights (referring to brotherhood)7. The numbering of the generations refl ects a chronological order of the formation of rights, although quite misleadingly. Today it is generally accepted, that the fi rst two generations of rights are of equal importance, inseparable and can only be viewed through mutual interconnections. Still these two generations form unique entities as it shows in the UN’s two separate documents: the Proclamation of Civil and Political Rights and the Proclamation of Economic, Social and Cultural Rights (1966). Traditional interpretation in textbooks sees the difference between the fi rst two generations based on the need of a state’s self-restraint towards civil and political rights and its crucial contribution to provide economic, social and cultural rights. By now, it is widely recognized that maintaining political rights does require interference from the state as well as economic, social and cultural rights (the ones that need no direct
world community and international law. (Jogtudományi Értekezések) Budapest: Akadémiai Kiadó, 1993.
6 WELLER op. cit.
7 KARELL VASAK: La déclaration universelle des droits de l homme, 30 ans apres. Courrier de l’ UNESCO, 1977.
action from the state) are becoming less and less expensive. International law expects states to comply in providing civil and political rights without delay, but economic, social and cultural rights to be achieved gradually. Nevertheless, gradual progress must not be delayed without sound reasons. These two groups of legal rights show distinction in international legal defense policies as well. In the case of economic, social and cultural rights only report mechanisms have been set up traditionally, whereas an individual’s civil and political rights are protected by the legal system, and also victims are entitled to turn to appeal courts. Second generation rights have recently been known to offer forums for complaint as the Europe’s Social Chart lists systematic procedures for collective complaints. Anyway, international law and its protective procedures with numerous guarantees are indispensable in securing effi cient protection for basic human rights.
There is indeed a group of human rights that not only spread worldwide in the wake of globalization, they were rather created and shaped by globalization itself. International law often views the latest-evolved third generation rights (also known as solidarity rights8) as “human rights answers to the challenges of globalization”9. Although it is not clear yet which rights belong to the above group and what exactly these rights stand for. Without doubt on the list: the right to peace (the arms race counterpart); the right to a healthy environment (for environmental pollution awareness). With the sprout in the problems of globalization, third generation human rights handbooks are becoming heavier and heavier. Basic rights belonging to the third generation are yet at an embryonic stage in the struggle against global threats. These rights cannot at this point be completely realized within the boundaries of a state, and also these rights (or elements of these rights) cannot (or only to a certain extent) be interpreted as the individual’s subjective right against the state. However, when identifying individual rights various components are to be taken into consideration: interpretations of the right to life and health must comply with the right to a healthy environment. There is a growing consensus that the right to a healthy environment may just as well mean an individual’s right to a healthy environment worthy to go to court for. In the case of the right to a healthy environment interpreted as the right to environmental conservation (protection and development), it includes the right to be informed on decision making and
8 MAVI, VIKTOR: Rights of solidarity or the third generation of human rights? Állam- és Jogtudomány, 1987–1988. No. 1–2. 151–173. Mr. Mavi often refers to the latest human rights as solidarity rights, placing solidarity among individuals and peoples as a common background.
9 KARDOS, GÁBOR: Human rights at the threshold of a new era. Budapest: T-Twins publishing, 1995.; chapter 2. Mr. Kardos refuses to refer to„third generation rights” as „rights” (for not having a clear subject and context), or as generations (for not showing proper coherence), and defi nes them as mere human rights responses to global issues on the basis of common „efforts to transform, synthesize and adapt global challenges into the system of human rights”.
plans affecting with environment, the right to take part in decision making procedures and chances for effi cient appeal correspondingly. Therefore the right to a healthy environment translates into a right with the individual as its subject, but the whole (international) community as its benefi ciary10.
It is not by any means a one-way relationship between globalization and human rights, as globalization’s infl uence on human rights (internationalization of certain rights while formation of others) comes right back with human rights becoming universal and promoting globalization of civil societies.