TRAINING HAK ASASI MANUSIA BAGI PENGAJAR HUKUM DAN HAM Makassar, 3 - 6 Agustus 2010
MAKALAH
Hak Asasi Manusia dan Demokrasi Dari Perspektif Internasional Oleh: Cand. Jur. Kjetil Fiskaa Alvsåker (Norwegian Centre for Human Rights University of Oslo)
Hak Asasi Manusia dan Demokrasi Dari Perspektif Internasional Makassar 03.08.2010 Oleh Cand. Jur. Kjetil Fiskaa Alvsåker Norwegian Centre for Human Rights University of Oslo
Diantara 193 negara berdaulat yang diakui di dunia, ada 9 negara yang menggunakan kata Demokrasi di dalam nama resminya: • • • • • • • • •
Republik Demokrasi Rakyat Aljazair Republik Demokrasi Rakyat Bangladesh Republik Demokrasi Kongo Republik Demokrasi Federal Ethiopia Republik Demokrasi Federal Nepal Republik Demokrasi Rakyat Korea Republik Demokrasi Rakyat Laos Republik Demokrasi São Tome dan Prìncipe Republik Demokrasi Sosialis Sri Lanka
Presentasi berikut • • • • • • •
Definisi konsep‐konsep utama Kekuasan negara dan HAM Demokrasi; kediktatoran kelompok mayoritas Apakah demokrasi adalah sebuah hak asasi? Kewajiban negara menurut HAM HAM lain yang menjamin pelaksanaan demokrasi Kapan intervensi negara terhadap HAM dapat dibenarkan?
1. Definisi konsep‐konsep utama •
Hak Asasi Manusia ‐ “norma‐norma HAM merupakan ekspresi legal dari hak‐hak mendasar yang dimiliki oleh setiap orang sebagai manusia” ‐ “Kebebasan, kekebalan dan manfaat di dalam nilai‐nilai moderen (terutama di tingkat internasional) harus dapat di‐klaim oleh semua orang yang hidup di dalam suatu masyarakat” ‐ “persyaratan fundamental dalam hubungan antar individu dan negara” ‐ “Persyaratan moral yang fundamental untuk badan peradilan yang harus diatur secara konstitusional atau melalui perjanjian internasional”
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Demokrasi “Demokrasi adalah bentuk pemerintahan yang paling buruk.......namun bentuk pemerintahan yang lain jauh lebih buruk...” Winston Churchill (1874‐1965) ‐ Demokrasi langsung ‐ Demokrasi perwakilan ‐ Keseimbangan kekuasaan negara “Kekuasaan cenderung korup, dan kekuasaan absolut akan melakukan korupsi secara absolut. Orang‐orang penting hampir selalu orang‐orang yang tidak baik” Baron of Acton (1834‐1902)
2. Negara dan HAM Tanggung jawab negara menurut konvensi2 • ICCPR pasal 2(1): “...menghormati dan menjamin hak‐hak dalam Kovenan ini bagi semua orang yang berada di dalam wilayahnya dan tunduk pada wilayah hukumnya...” • ICESCR pasal 2(1): Setiap Negara Pihak pada Kovenan ini berjanji untuk “mengambil langkah‐langkah, baik secara individual maupun melalui bantuan dan kerjasama internasional, khususnya di bidang ekonomi dan teknis sepanjang tersedia sumber dayanya, dengan maksud untuk mencapai secara bertahap perwujudan penuh dari hak‐hak yang diakui oleh Kovenan ini dengan cara‐cara yang sesuai, termasuk dengan pengambilan langkah‐langkah legislatif."
Kekuasaan negara dan HAM •
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Kekuasaan legislatif Tidak dapat merumuskan undang‐undang yang bertentangan dengan HAM. Jika hal tersebut dilakukan, maka negara melanggar HAM. Kekuasaan eksekutif Harus menjalankan kekuasaan menurut peraturan yang berlaku dengan cara‐cara yang bertentangan dengan HAM. Kekuasaan yudikatif Merupakan kekuasaan negara yang diberikan kewenangan terluas terkait dengan HAM. Kekuasaan ini diatur di dalam Kovenan Internasional tentang Hak‐Hak Sipil dan Politik (ICCPR), misalnya persyaratan untuk melakukan persidangan yang adil dan kewajiban untuk mengawasi negara terutama untuk kepatuhannya terhadap HAM. Kekuasaan negara keempat, kebebasan pers
3. Demokrasi; kediktatoran kelompok mayoritas. Perlindungan terhadap kelompok minoritas • Perlindungan diperoleh dari Undang‐Undang Dasar • Perlindungan diperoleh dari konvensi‐ konvensi HAM
4. Apakah demokrasi adalah sebuah HAM? •
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Pasal 21Deklarasi Universal Hak Asasi Manusia menyatakan: 1. Setiap orang berhak untuk berpartisipasi dalam pemerintahan negaranya, baik secara langsung atau melalui wakil‐wakil yang dipilihnya secara bebas. 2. Setiap orang berhak atas akses yang sama untuk memperoleh pelayanan umum di negaranya. 3. Keinginan rakyat harus dijadikan dasar kewenangan pemerintah; keinginan tersebut harus dinyatakan dalam pemilihan umum yang dilakukan secara berkala dan sungguh‐sungguh, dengan hak pilih yang bersifat universal dan sederajat, serta dilakukan melalui pemungutan suara yang rahasia ataupun melalui prosedur pemungutan suara secara bebas yang setara. ICCPR Pasal 25 Setiap warga negara harus mempunyai hak dan kesempatan, tanpa perbedaan apapun sebagaimana yang dimaksud di dalam pasal 2 dan tanpa pembatasan yang tidak layak: (a) Ikut serta dalam pelaksanaan urusan pemerintahan, baik secara langsung ataupun melalui wakil‐wakil yang dipilih secara bebas; (b) Memilih dan dipilih pada pemilihan umum yang berkala dan murni , dan dengan hak pilih yang universal dan sama, serta dilakukan melalui pemungutan suara secara rahasia untuk menjamin kebebasan menyatakan keinginan dari para pemilih; (c) Memperoleh akses pada pelayanan umum di negaranya atas dasar persamaan dalam arti umum
5. Kewajiban negara menurut HAM • HAM dan kebebasan fundamental merupakan hak manusia sejak lahir; perlindungan dan promosi HAM merupakan tanggung jawab Pemerintah yang pertama. (Deklarasi dan Program Aksi Vienna 1993)
6. HAM lain yang menjamin pelaksanaan demokrasi • 6.1 Kesetaraan dan non‐diskriminasi Pasal 1 Deklarasi Universal PBB tentang Hak Asasi Manusia. Semua manusia terlahir merdeka dan mempunyai martabat dan hak yang setara. Manusia dikaruniai akal budi dan hati nurani dan hendaknya bergaul satu dengan yang lain dengan semangat persaudaraan. ‐ Siapa yang dilindungi dari diskriminasi? ‐ Pengecualian dari non‐diskriminasi, diskriminasi positif. ‐ Apakah ada pengecualian‐pengecualian negatif untuk non‐ diskriminasi
• 6.2 Kebebasan Berekspresi “Demokrasi adalah situasi dimana pertukaran pendapat tidak berakhir dengan pemakaman” Winston Churchill Pengadilan HAM Eropa: Kebebasan berekspresi“berlaku tidak hanya untuk informasi atau gagasan yang dianggap atau diterima sebagai hal‐hal yang tidak menyinggung atau tidak berbeda, tetapi juga informasi atau gagasan yang menyinggung, mengejutkan atau mengganggu negara atau suatu kelompok masyarakat. Ini merupakan tuntutan dari pluralisme, toleransi dan keterbukaan pikiran yang tanpa ini semua tidak ada yang disebut sebagai masyarakat demokratis. Hal ini berarti, antara lain, bahwa semua formalitas, kondisi, pembatasan atau hukuman yang diterapkan dalam bidang ini harus bersifat proporsional sesuai dengan sasaran sah yang ingin dicapai.
• 6.2.1 Apa yang dimaksud dengan ekspresi? • 6.2.2 Ekspresi yang berbeda memilliki perlindungan yang berbeda. Pentingnya berekspresi/berpendapat. – – – –
Ekspresi politik Ekspresi seni Ekspresi komersial Dll.
• 6.2.3. Intervensi dalam hak untuk mengekspresikan diri. Apa cara yang sah menurut HAM?
6.3. Hak atas Pendidikan • 1.
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ICESCR Pasal 13 Negara‐negara Pihak pada Kovenan ini mengakui hak setiap orang atas pendidikan. Negara‐negara tersebut sepakat bahwa pendidikan harus diarahkan pada pengembangan sepenuhnya kepribadian manusia dan kesadaran akan harga dirinya, dan memperkuat penghormatan terhadap hak asasi manusia dan kebebasan dasar. Mereka selanjutnya sepakat bahwa pendidikan harus memungkinkan semua orang untuk berpartisipasi secara efektif dalam suatu masyarakat yang bebas, memajukan pengertian, toleransi serta persahabatan antar semua bangsa dan semua kelompok, ras, etnis atau agama, dan meningkatkan kegiatan Perserikatan Bangsa‐Bangsa untuk memelihara perdamaian. Negara‐negara Pihak pada Kovenan ini mengakui, bahwa dengan tujuan untuk mencapai perwujudan sepenuhnya hak ini: (a) pendidikan dasar harus bersifat wajib dan tersedia secara cuma‐cuma bagi semua orang; (b) pendidikan lanjutan dalam berbagai bentuknya, termasuk pendidikan teknik dan kejuruan, harus secara umum tersedia dan terbuka bagi semua orang dengan segala cara yang layak, dan khususnya melalui pengadaan pendidikan cuma‐cuma secara bertahap; (c) pendidikan tinggi juga harus dilaksanakan dengan prinsip terbuka bagi semua orang atas dasar kemampuan, dengan segala upaya yang tepat, khususnya melalui pengadaan pendidikan cuma‐cuma secara bertahap; (d) pendidikan fundamental harus didorong atau diintensifkan sejauh mungkin bagi orang‐orang yang belum pernah mendapatkan atau belum menyelesaikan seluruh pendidikan dasar mereka; (e) pengembangan suatu sistem sekolah pada semua tingkatan harus secara aktif diupayakan, suatu sistem beasiswa yang memadai harus dibentuk, dan kondisi materiil staf pengajar harus terus‐menerus diperbaiki. Negara‐negara Pihak pada Kovenan ini berjanji untuk menghormati kebebasan orang tua dan, jika ada, wali murid yang sah untuk memilih sekolah bagi anak‐anak mereka, selain sekolah yang didirikan oleh lembaga pemerintah, sepanjang sekolah tersebut memenuhi standar pendidikan minimum sebagaimana ditetapkan atau disetujui oleh pemerintah negara yang bersangkutan, dan untuk melindungi pendidikan agama dan moral anak‐anak mereka sesuai dengan keyakinan mereka. Tidak satu pun ketentuan dalam pasal ini yang dapat ditafsirkan sebagai pembenaran untuk mencampuri kebebasan individu dan badan untuk mendirikan dan mengurus lembaga pendidikan, sepanjang prinsip‐prinsip yang dikemukakan dalam ayat 1 Pasal ini selalu diindahkan, dan dengan syarat bahwa pendidikan yang diberikan dalam lembaga tersebut memenuhi standar minimum yang telah ditetapkan oleh Negara yang bersangkutan.
7. Menerapkan HAM adalah cara untuk menyeimbangkan kepentingan dan nilai yang berbeda. Kapan intervensi negara dalam HAM dapat dibenarkan? • Sah menurut hukum • Untuk mencapai sasaran yang sah • Diperlukan dalam masyarakat yang demokratis • Kasus dari Pengadilan HAM Eropa
Human Rights and democracy from an international perspective
Human rights and democracy is one of the fundamental discussions in the Human Rights debate. Are Human rights a prerequisite for democracy, or can one say that a democracy cannot exist without respecting Human Rights? One can also turn the question around, and ask if democracy is a necessity for a state to respect Human Rights. But an important knowledge from history is that many states that call themselves democracies, have not respected human rights. In fact we have seen that many states on the contrary become massive violators of the different guarantees given according to the human rights. Hence, we can conclude that what countries call them is not a relevant factor in assessing whether a country is or is not a democracy, or respect the human rights. It is not without irony one have experienced countries with the word democracy in the official name of the country, when in fact their real behaviour was everything else than what you should expect from a democracy. For example the former state usually referred to as East Germany’s official name was (Deutche Demokratiche Republik, or in English) the Democratic Republic of Germany. This was a state that had to lock their citizens inside their country with fences and walls, to avoid them from fleeing the country or system. Many people were shot when trying to escape to less depressive states. Many of the former east-European Communist regimes called themselves democracies despite the fact they were not. Also other places in the world have countries named themselves democracies even though they have neglected respect for human rights, including banning political parties and prevented the existence of a political opposition. Among the 193 internationally recognized sovereign states, these are the nine states with an official name that includes the word DEMOCRACY: People’s Democratic Republic of Algeria People’s Democratic Republic of Bangladesh Democratic Republic of the Congo Federal Democratic Republic of Ethiopia Federal Democratic Republic of Nepal Democratic People’s Republic of Korea Lao People’s Democratic Republic Democratic Republic Of São Tome and Prìncipe 1
Democratic Socialist Republic of Sri Lanka How many of these states are real democracies? The obvious question that rises is: Why do these states refer to themselves as democracies? Democracy is among most common people perceived as a fair and just system. A system, if it is close to perfect, guaranties all citizens the same opportunities, a system where all are treated equally, and a system which rewards fairly, and punishes according to humanitarian principles. When talking about democracy in a deeper sense, I believe that most people think about the political system as an electoral, and how democracy is organized. In other words the democracy-debate rotate around the questions that all citizens have the right to vote in the referendum for a new government. The principle of: one man, one vote. Some would maybe include the parliamentarism and other solutions to the challenges in how to organize the execution of a democratic state. The debate about the democracy and human rights is about individuals rights towards the state and it raises more questions than those connected to the electoral. There is a need to make aware the reasons why a democracy which does not respect the Human Rights, is not a real democracy.
The following presentation In the following I will discus the two concepts Human Rights and Democracy. Furthermore I will look into the three or four state powers responsibilities and obligations according to the human rights. Thereafter I will look into the minorities’ right to protection in a democracy. I will discuss whether democracy is a human right, before I briefly look at the state responsibility with democracy glasses on. An important Chapter is which human rights that constitute a guarantee for the execution of the democracy. Finally I will look into the question when the state is allowed to interfere in the different human rights, before I Summarise.
1. Definition of central concepts 1.1 Human Rights: The concept Human Rights gives many associations to different actions or happenings: Torture in prison, Resistance movements, the heroes who rises against the stronger powers, and so forth. The concept is often being misused in political arguments or rhetorical speeches. It shines of justice and fairness, and gives the impression of a just and humanitarian orientated person, even though his arguments are not valid in a human rights perspective.
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There have been many attempts to define Human Rights, and none have been successful to give a perfect definition. Many books about Human Rights don’t attempt to define the concept, they only go direct to the substantial matter and let the content and the different rights speak for themselves. UN¨s Human Rights Committee: “human rights norms are the legal expression of the essential rights that every person is entitled to as a human being”. In the very impressive and thorough Black’s Law Dictionary is the concept explained like this: “The freedoms, immunities, and benefits that, according to modern values (esp. at an international level), all human beings should be able to claim as a matter of right in the society in which they live”. What we can see is that the definition emphasises the individuals’ rights, and it is the state or society which both most respect and promote the rights of the individuals The point of defining it here in this lecturing is to make awareness of the existence of many and not one agreed about definition, and still remember the main features of human rights. What about Indonesia. Is human rights defined accordingly to the international definition? Article 1 The terms used in this Act have the following meanings: 1. Human rights mean a set of rights bestowed by God Almighty in the essence and being of humans as creations of God which must be respected, held in the highest esteem and protected by the state, law, Government, and all people in order to protect human dignity and worth. Also the Indonesian definition emphasise the right of the human and the obligation of the state.
1.2 Democracy “Democracy is the worst possible form of government... except for all the others...” Winston Churchill (1874-1965) The thought of democracy was developed in the antiquity in Greece. The word democracy means “rule of the people”. It is derived from the two words demos meaning people, and kratos meaning power. The rule of the people as a democracy can be managed either as a direct democracy or as a representative democracy. 1.2.1 Direct democracy: 3
A government where governing power is derived from the people by direct referendum. The only example in its pure definition is the Greek city-state Athens for almost 2500 years ago. What is not commonly mentioned in this regard is that the Greek city-state of Athens consisted of only 40 000 free men, women did not have any rights as a citizen, and the state had approximately 150 000 slaves. Even so, at this stage of history, no one had seen such a fair and just system before. . Today, with very populated countries and complex governing systems, it would be almost impossible, and certainly very impractical, to conduct a referendum or an election in all questions or problems the state should encounter in order to practice a direct democracy. Hence the model of the representative democracy was developed, and is the model commonly used in today’s democracies. 1.2.2 Representative democracy: The state system where the people elect their representatives to rule the state on their behalf. There exist no specific, universally accepted definitions of democracy. Even so, equality and freedom for all citizens have been identified as important characteristics of democracy since ancient times. These principles are reflected in all citizens being equal before the law and having equal access to power. This is after my knowledge also stated in the Indonesian constitution. For example, in a representative democracy, every vote has equal weight, no restrictions can apply to anyone wanting to become a representative, and the freedom of its citizens is secured by legitimized rights and liberties which are generally protected by a constitution. If any democracy is not carefully legislated – through the use of balances – to avoid an uneven distribution of political power, such as the separation of powers, then a branch of the system of rule could accumulate power and become harmful to the democracy itself. 1.2.3 The balance of state powers: “Power tends to corrupt, and absolute power corrupts absolutely. Great men are almost always bad men” Baron of Acton (1834-1902) The French enlightenment political philosopher Baron de Montesquieu worked on the topic how to govern states in a best way. He acknowledged that powers have to be controlled in order to prevent the misuse of power. How can one create a system where power is not being misused? He developed the theory that is basis for most of today’s democracies, referred to as the “tripartite system”. This theory divided the central state powers in three: Legislative power Executive power 4
Judiciary power Later in this presentation I will come back to the three powers in accordance to the Human Rights. The fourth state power, the freedom of the press: This underpins the importance of the freedom of expression. Experience has shown that in order to prevent the other state powers from misusing their power, one also need a neutral organ which can control, investigate and make public potential and de facto misuse of power. This role has become the most important obligation of the press. Because of the importance, the press is one of the institutions that enjoy the widest protection of the freedom of expression. I will come back to this later.
2. The state powers and the Human Rights Have the different state power duties according to the Human Rights? Yes, it follows from many of the conventions that it is the states duty to respect and ensure the human rights. ICCPR article 2(1): “...to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant...”
ICESCR article 2(1) the state shall: “...take steps, individually and through international assistance and co-operation, especially economic and technical, to the maximum of its available resources, with a view to achieving progressively the full realization of the rights recognized in the present Covenant by all appropriate means, including particularly the adoption of legislative measures.”
What does this responsibility imply for the different state powers? Legislative power Cannot draft laws that contradict the human rights. If they do so, the state will violate the human rights. Executive power Must execute their power according to laws in such a manner that the execution does not contravene the human rights. Judicial power Probably the state power that is given the widest regulation according to the human rights. This power is both regulated in ICCPR for example the requirement to conduct a fair trial, and has the responsibility to watch over the state that it complies with the human rights. The fourth state power, freedom of the press
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The press is not one of the formal state powers. It is through theory it is called a state power, and not through formally drafted constitutions or laws. It is through its role as a public watchdog it is given its importance. In Europe the European Court of Human Rights has given the press an extensive protection. State powers are often not contempt with insight in what it is doing, and therefore often regulates their business in a way to make it difficult to be controlled. We also know that being an investigating journalist is one of the most dangerous professions in the world today. Every year hundreds of journalist is being killed all over the world. This is the reason the employees of the press need an extensive protection of their lives (In the same way as human rights defenders need – this two jobs are one of the world most dangerous professions). The role of the press as a public watchdog is also the reason why they must be granted an extensive protection of their freedom of expression.
3. Democracy; the dictatorship of the majority. Protection of minorities. Democracy has been referred to as the “dictatorship of the majority”. The two main questions are the following: must a minority accept all interference in their life or integrity, and can a majority make any decision they want? The answer to these fundamental questions are no. Not in a democracy ruled by law, which respects the human rights. There are at least two mechanisms which secures a minority from being harassed by the majority. 1.) Firstly, most democracies have a constitution that both limit the majority’s ability to make any decision they want, and Secondly most constitutions contain rules about how to change the constitution itself. To change the constitution demands a qualified majority decision, which means often a majority of two third or even three fourth. In addition some constitutions demands that the proposition to change the constitution also is being upheld by the next parliament after a new referendum, to be valid. As far as I can see from chapter 16 this is also the case in the Indonesian Constitution. 2.) Secondly, if the constitution or internal laws has any of the above mentioned security mechanisms, or if all formal rules according to the constitution has been followed, and the change is about to happen, it still exists one hindrance. The change must comply with the Human Rights. If a state wants to make a rule or follow a practice that is not in accordance with the human rights, the state becomes a human rights violator. The question then remains, do the state care, and can it have consequences for the state? Except from in Europe there exist no international court which can give a human 6
rights verdict against a state. The answer to the question outside Europe is therefore, it may have political consequences that they state may care about. For example Iran had sentenced a woman to stoning. Amnesty International and other NGO’s had for a while written to Iranian government that they should stop this practice and had done an extensive campaign both in media and directly to governments all over the world to stop this sentence to be carried out. Many governments raised the issue in dialogues with the Iranians, and just before the execution of the woman the Iranian government stopped and released the woman. This was a happy outcome, but it is sad to see that Iran still use stoning as a method of punishment. We also know that it is not very pleasant for the United States, which call themselves a democratic beacon of light in the world, to uphold their Guantanamo camps, both because of internal, but also international, critic.
4. Is Democracy a Human Right? Democracy and human right are so closely connected that many experts today claim that democracy today is a human righty. Both democracy and human rights take nutrition from the ideas of equality between humans and respect for the individual. A democracy presupposes that human rights are complied with, for else there will be no democracy. A democracy is also the best guaranty that the state will comply with human rights when they are affronting a person whom human rights would be convenient to violate. For example, only in a democracy would the state tolerate the acquittal of a person suspected for committing a serious crime, one the reason that his procedural guaranties have not been fulfilled. I dear claim that all other state would punish in such a case, forgetting that the procedural rights are given because of a wish that non innocent should be convicted. I also doubt that a non democratic state would tolerate a very critical article in a newspaper regarding the head of state, on the grounds of freedom of expression. Though democracy itself is not defined as a human right in the different human rights instruments, many of the features and values associated with human rights are stated. Article 21of the Universal Declaration of Human Rights States: 1. Everyone has the right to take part in the government of his country, directly or through freely chosen representatives. 2. Everyone has the right to equal access to public service in his country. 3. The will of the people shall be the basis of the authority of government; this will shall be expressed in periodic and genuine elections which shall be by universal and equal suffrage and shall be held by secret vote or by equivalent free voting procedures.
The declaration is not legally binding, only morally. But we find much of the same in: 7
Article 25 in ICCPR Every citizen shall have the right and the opportunity, without any of the distinctions mentioned in article 2 and without unreasonable restrictions: (a) To take part in the conduct of public affairs, directly or through freely chosen representatives; (b) To vote and to be elected at genuine periodic elections which shall be by universal and equal suffrage and shall be held by secret ballot, guaranteeing the free expression of the will of the electors; (c) To have access, on general terms of equality, to public service in his country.
This article constitutes mainly three different rights: 1.) Article 25(a) covers all execution of political power, especially through legislative or the executive powers, and on all levels from locally to internationally. This provision also states the right to form a political party. 2.) Article 25(b) states the right to vote and be elected. One can claim that this is no more than already 25(a) states, but here the drafters would be on the safe side, and take no chances of misinterpretation or misunderstanding. The article also states that the elections or referendums have to be “genuine”. This is important and guaranties free elections where no one is forced to vote in one direction or on a certain party or person. 3.) Article 25(c) gives a provision about the right to equal right be publicly employed. This is not a general provision about right to employment, but a rule guarantying that if you are qualified the state can not discriminate you. This is a safety from a government only employing “their own”. With “public service” it is meant typical positions which means execution of public power, like ministries, directorates, the judiciary, police or the military. The answer to the headline if democracy is a human right is that some of what we connect to the concept democracy is certainly human rights because the ICCPR say so. Other aspects with democracy are still not regulated in any human rights convention. If it still is human rights according to customary law? One can be tempted to answer yes, but I am not sure about that.
5. State obligations according to the Human Rights It falls under the responsibility of the state to secure all human beings on their territory from human rights violation. Human rights and fundamental freedoms are the birthright of all human beings; their protection and promotion is the first responsibility of Governments. (Vienna declaration and Programme of Action 1993) 8
We must distinguish between state obligation according to international customary law, and obligation according to conventions. 1.) International Customary law Will always oblige the state, and the state can never be heard with the excuse that they don’t agree with the wording. 2.) Conventions, covenants or treaties. In order to oblige the state, the state must have ratified the instrument. When the state has ratified the intgernational instrument starts to apply at once. This means that the state is obliged to prepare for the implementation before ratifying. Afterwards the state cannot be heard with the excuse that they are doing their best, but need time to implement the legal text. Article 2 of the UN convention on Civil and Political Rights: 1. Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. 2. Where not already provided for by existing legislative or other measures, each State Party to the present Covenant undertakes to take the necessary steps, in accordance with its constitutional processes and with the provisions of the present Covenant, to adopt such laws or other measures as may be necessary to give effect to the rights recognized in the present Covenant. 3. Each State Party to the present Covenant undertakes: (a) To ensure that any person whose rights or freedoms as herein recognized are violated shall have an effective remedy, notwithstanding that the violation has been committed by persons acting in an official capacity; (b) To ensure that any person claiming such a remedy shall have his right thereto determined by competent judicial, administrative or legislative authorities, or by any other competent authority provided for by the legal system of the State, and to develop the possibilities of judicial remedy; (c) To ensure that the competent authorities shall enforce such remedies when granted. Article 3 The States Parties to the present Covenant undertake to ensure the equal right of men and women to the enjoyment of all civil and political rights set forth in the present Covenant. 9
Article 2 of the UN Convention on Economical, Cultural and Social Rights 1. Each State Party to the present Covenant undertakes to take steps, individually and through international assistance and co-operation, especially economic and technical, to the maximum of its available resources, with a view to achieving progressively the full realization of the rights recognized in the present Covenant by all appropriate means, including particularly the adoption of legislative measures. 2. The States Parties to the present Covenant undertake to guarantee that the rights enunciated in the present Covenant will be exercised without discrimination of any kind as to race, colour, sex, language,religion, political or other opinion, national or social origin, property, birth or other status. 3. Developing countries, with due regard to human rights and their national economy, may determine to what extent they would guarantee the economic rights recognized in the present Covenant to non-nationals. Article 3 The States Parties to the present Covenant undertake to ensure the equal right of men and women to the enjoyment of all economic, social and cultural rights set forth in the present Covenant. In a democratic state, the government are elected by the people, and their mandate is to rule on behalf of the people. The question the elected rulers therefore always are obliged to ask, is how can I serve the people the best way? As the Vienna declaration states, the governments first obligation is to protect and promote the human rights.
6. Different Human Rights guaranteeing the execution of democracy Different concepts inherent in the legal system that can be called human rights
6.1 Equality and non-discrimination Article 1 of the UN declaration of Human Rights. All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood. A fundamental belief or assumption, that constitutes the basis for all human rights, is that all human beings are born equal with the same right. Without this fundamental assumption, there would be no basis for human rights. Who is protected against discrimination? Three different kind of protection. 10
1.) General protection, like in Article 26 in ICCPR All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.
2.) Protection according to the conventions field of area, like in Article 2(2) in ICESCR 2. The States Parties to the present Covenant undertake to guarantee that the rights enunciated in the present Covenant will be exercised without discrimination of any kind as to race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.
3.) Protection under the conventions theme, like in The different conventions regarding race, sex or labour.
The different human rights conventions have numerous different provisions which prohibits discrimination are unequal treatment. There are also numerous different conventions dedicated to the sole mean to protect different vulnerable groups. Women, children, races, indigenous people, have all their own convention dedicated to their situation. So what is discrimination, how is it defined in the different conventions? Article 1 the UN convention against racial discrimination 1. In this Convention, the term "racial discrimination" shall mean any distinction, exclusion, restriction or preference based on race, colour, descent, or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms in the political, economic, social, cultural or any other field of public life. Article 1 the UN convention against discrimination of women For the purposes of the present Convention, the term "discrimination against women" shall mean any distinction, exclusion or restriction made on the basis of sex which has the effect or purpose of impairing or nullifying the recognition, enjoyment or exercise by women, irrespective of their marital status, on a basis of equality of men and women, of human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field.
We see that the different conventions have different definitions. The central point to understand is that it is the conventions own definition that is relevant on that exact area. Exceptions from non-discrimination, positive discrimination. 11
There are many areas where people are positively discriminated compared to others. They are given wider and more intensively rights. They are also said to be preferred before other groups under certain circumstances. Affirmative action is a concept widely known. The reason for implementing and exercise this principle is the intention to undo or fix former injustice and discrimination. This can be said about rules or decisions that favour different minorities, indigenous people or other groups. It is important to underpin the fact that it is not uncommon to claim that affirmative action in itself is a human rights violation. Well is it? The former UN human rights commission concluded no. But one requirement has to be fulfilled. The positive discrimination must be Does there exist negative exceptions from non-discrimination? What about aliens. In most, if not all, countries, alliens are not enjoing the same rights as the citizens of the country. Why? States will claim they are there on free will, they are free to leave! Their mother state cannot escape from their obligation because a person is traveling to another country. Exception from the exception: Refuge convention.
6.2 Freedom of Expression “A democracy is a state where exchange of opinion do not end with a funeral” Winston Churchill The reason behind Churchill’s statement is that in a pluralistic democracy, we meet expressions that we don’t like with arguments and debate, not threats. Freedom of expression has been called the basis for all other human rights. All other human rights would be illusory if we couldn’t talk about them. Without freedom of expression how can we debate and develop the democracy? The European Court of Human Rights has pronounced in one of its most famous verdicts: “Freedom of expression constitutes one of the essential foundations of <... a democratic society...>, one of the basic conditions for its progress and for the development of every man”. It is important to remember that it is those expressions that are controversial that need protection. The uncontroversial expressions will never be contested, and are therefore not dependent on protection. Therefore the European Court of Human Rights in the same case stated that: 12
Freedom of expression “is applicable not only to information or ideas that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb the State or any sector of the population. Such are the demands of that pluralism, tolerance and broadmindedness without which there is no democratic society. This means, amongst other things, that every formality, condition, restriction or penalty imposed in this sphere must be proportionate to the legitimate aim pursued. ICCPR art 19 and 20 states: Article 19 1. Everyone shall have the right to hold opinions without interference. 2. Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice. 3. The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary: (a) For respect of the rights or reputations of others; (b) For the protection of national security or of public order (ordre public), or of public health or morals. Article 20 1. Any propaganda for war shall be prohibited by law. 2. Any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law.
6.2.1 What is expression? The concept “expression” covers most things no matter what content or form. Even expressive actions has been said to fall under the notion. The communication can happen through books, magazines, paintings, photography’s. Films, music, radio interviews, speeches, conversations and e-mails. Only the fantasy draws the limit. 6.2.2 Different expressions have different protection. The importance of the expression. One can distinguish expressions according to whom who perform them, and in which area of life they are expressed. Some expressions are worthy of a better protection than others. In the jurisprudence of the European Court of Human Rights some statements have almost unlimited protection, while others have to accept a wider interference. We can divide this in three: 13
1.) Political expressions: are considered as a part of the democratic system. If an expression is considered being political it is in the society’s interest to tolerate it, even though it is very provocative. Political debates are so important that the interest at stake must be very solid before one can intervene in the expression. The same must be said about public figures, and the especially politicians. They have chosen to take a position in public life where they represent the people. For that reason they must tolerate much more than an anonymous person living a quiet and private life. Therefore a president has to tolerate being portrayed as a goat, or being criticised for not fulfilling his promises when he ran for president. 2.) Artistic expressions: are also considered being an important contributor to the democratic society. What else is the core task of the artist than provoke and inspire the society to change, or hold up a mirror to the people and show them how hideous and cruel the state has become. We have all heard about literature that has been banned because it tells everybody how corrupt or repressive the government has made the state. One can mention your own Pramedya Anantator. What about Picasso’s picture Guernica that better than anything else criticised the Spanish fascist under General Franco did when they bombed the city Guernica. What about the Music of Mikos Theodorakis or Victor Jara who became freedom symbols under the dictator regimes in Greece and Chile. Artistic expressions enjoy almost the same intensive protection as political expressions 3.) Commercial expressions: as all other expressions enjoy an intensive protection, but not as much as the former mentioned. TV-commercial is not as important expressions for the democracy, but tolerance demand that we also protect these forms of expressions. 4.) Other expressions: Whatever expression thinkable is protected. The rule that has to be remebered is that all expressions at the start
6.2.3 Intervention in the right to express one self. What is legal according to human rights? 1.) Child pornography 2.) Racist expression How the interference in the freedom of expression is legale done I will com back to in chapter 7.
6.3 The Right to Education Stated in the Universal Declaration article 26. 14
ICESCR article 13 states that: Article 13 1. The States Parties to the present Covenant recognize the right of everyone to education. They agree that education shall be directed to the full development of the human personality and the sense of its dignity, and shall strengthen the respect for human rights and fundamental freedoms. They further agree that education shall enable all persons to participate effectively in a free society, promote understanding, tolerance and friendship among all nations and all racial, ethnic or religious groups, and further the activities of the United Nations for the maintenance of peace. 2. The States Parties to the present Covenant recognize that, with a view to achieving the full realization of this right: (a) Primary education shall be compulsory and available free to all; (b) Secondary education in its different forms, including technical and vocational secondary education, shall be made generally available and accessible to all by every appropriate means, and in particular by the progressive introduction of free education; (c) Higher education shall be made equally accessible to all, on the basis of capacity, by every appropriate means, and in particular by the progressive introduction of free education; (d) Fundamental education shall be encouraged or intensified as far as possible for those persons who have not received or completed the whole period of their primary education; (e) The development of a system of schools at all levels shall be actively pursued, an adequate fellowship system shall be established, and the material conditions of teaching staff shall be continuously improved. 3. The States Parties to the present Covenant undertake to have respect for the liberty of parents and, when applicable, legal guardians to choose for their children schools, other than those established by the public authorities, which conform to such minimum educational standards as may be laid down or approved by the State and to ensure the religious and moral education of their children in conformity with their own convictions. 4. No part of this article shall be construed so as to interfere with the liberty of individuals and bodies to establish and direct educational institutions, subject always to the observance of the principles set forth in paragraph I of this article and to the requirement that the education given in such institutions shall conform to such minimum standards as may be laid down by the State.
Education is a human right in itself, but as important, a right which constitutes a mean to achieve all the other human rights. To realise for example rights like freedom of expression, democratic participation and different guarantees regarding the trial, one are dependent on educated and enlightened people. How can a person who is an illiterate express that his right to express himself is violated.
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7. Applying human rights is balancing of different interests and values. When is the states intervention in a human right justifiable? The question is when can a state intervene in, and limit a human right, without becoming a human rights violator? The only Human Right considered to be absolute, and to be a rule without exceptions is article Most Human Rights are not absolute but are relative. This means that different interests and values must be weighted against each other. One has to find the right balance between the different values or interests. This is the job of the legal minds, the courts and the lawyers. Most human rights provisions set up different 1.) According to law: Must be foreseeable, available and 2.) Pursuing a legitimate aim: Those which are stated in the provisions text itself. Constitutes seldom a problem for the state to justify such legitimacy see practice from the European Court of Human Rights. 3.) Being necessary in a democratic society: This is the most difficult. Pressing social need. Illustrated with examples from the European Court of Human Rights case law: Freedom of expression:
Freedom of religion:
8. Summarise and conclusions To summarise my conclusions, I will say that Human Rights and democracy are so tight woven together that it is fair to say they are two different sides of the same case. Though compliance with human rights is a prerequisite for a democracy, this is often not the case in reality. Many states that call themselves democracies are massive violators of human rights. The test to pass, in order to call themselves real democracies, is therefore the will and effort to comply with the human rights. It is important that this will and effort are sincere. If the state lacks the will we can experience the tragic comedy that is disappointing common today.
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