International Protection of Human Rights,
Its Universality and Contextuality
 
 

Koichi TSUTSUMI

@@Contents

 1. From freedom of individual conscience of the Reformation to political liberalism of the Enlightenment, and to constitutionalism of the American Independence and the French Revoluion
 2. The long process of the realization of political liberalism and fundamental human rights
 3. Respect for civil rights and the modern industrial civilization
 4. Progress of international respect for human rights
@@(1) The Charter of the United Nations and the Universal Declaration of Human Rights
@@(2) From the 1970s to the 80s
@@(3) The latter half of the 1980s and onward
@@(4) The Vienna Declaration
 5. Practice in Japanese courts regarding this trend
 6. Universality and contextuality of respect for human rights
@@(1) National particularities and cultural backgrounds
@@(2) International observance and the protection of the weak and minorities
@@(3) Mutually reinforcing civil liberties and economic development
@@(4) Social rights and the market economy
@@(5) The 21st century and human rights

@@ International practices of respect for human rights are fairly recent phenomena. Although the Universal Declaration of Human Rights was proclaimed as early as in 1948, for several years, activities of the United Nations in this‚†‚‰ eld were very limited in scope. A turning point came about around 1975. In the latter half of the 1980s there was a notable increase in activity and was a further marked increase in the beginning of the 1990s after the end of the Cold War. Today there is a general world-wide awareness that respect for human rights furthers peace and democracy, and their promotion enjoys international support. This, however, is an outcome of developments over many years in history. Even in Western civilization, respect for human rights was only achieved after centuries of endeavor. We should not expect that efforts of their promotion will easily succeed in other areas of the world where historical and cultural contexts are various and different.

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@@1. From freedom of individual conscience of the Reformation to political
@@ liberalism of the Enlightenment, and to constitutionalism of the American Independence and the French Revolution
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The concept of human rights was formed in Western Europe about 200 years ago, but its origin goes as far back as the Reformation of the 16th century. Protestant reformers claimed that the authority of the church was not absolute, a fundamental fact of human existence was his or her relationship to God and every individual was equal before God. Every one had individual freedom of conscience and worship. This idea went beyond the con‚†‚‰ nes of theology and was secularized in the Enlightenment of the 17th century and developed a claim for civil liberties, namely political liberalism. John Locke, a representative Enlightenment writer, held that no government was possible without the consent of the people. Jean-Jacque Rousseau some years later presented the ideas of the social contract.
@@ The introduction of political liberalism into sovereign states brought forth a belief that sovereignty should rest with the people and gave rise to demand for representative governments and democracy. Realizations of these ideas in the latter half of the 18th century were the American Independence and the French Revolution. The Declaration of the American Independence stated ethat all men are created equal, that they are endowed by their Creator with certain inalienable Rights, that among these are Life, Liberty and the pursuit of Happiness,f reflecting the views of the Enlightenment. The French Assembly adopted the Declaration of the Rights of Man and of the Citizens, which was later attached to their Constitution. All citizens were now equal before the law as well as before God.
@@ The primary aim of the Western constitution is to limit the powers of the state and the government and to reserve to the people certain rights, known as human rights and fundamental freedoms. Governments cannot infringe upon these rights and freedoms. This setup is called constitutionalism or the rule of law. Respect for human rights forms, therefore, an intrinsic element in a constitution. Thus, human rights are primarily issues between the state and its nationals, namely issues under its constitution.

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@@2 . The long process of the realization of political liberalism and fundamental human rights

Even after revolutions and the adoption of constitutions establishing peoplesf sovereignty, it took a long time before peoples of the West actually attained political rights, equality and human rights such as freedom of conscience. Universal suffrage of men began in the 19th century, but this reached women as late as 1928 in Britain, and 1944 in France. In the United States slavery continued to be practiced for about eighty years after the Declaration of Independence until the Civil War, and racial discrimination was‚†‚‰ nally abolished as late as the 1960s. Intolerance and conformity were enforced for centuries in Western Europe after the Reformation and the crime of blasphemy was punishable in the recent past. The fact that the full freedom of individual conscience was not accommodated in the West for a long time may have been due to the relatively intolerant nature of Christianity compared to other world religions. An article by Professor Thomas M. Franck which appeared in an issue of the American Journal of International Law in 1997 entitled eIs Personal Freedom a Western Value ?f is very enlightening and inspiring in this respect. One of his contentions is that modern Western liberal values do not emanate from some deep cultural tradition of Europe and North America. Also the eliberalf West did not become eliberalf until very recently.

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3. Respect for civil rights and the modern industrial civilization

@@ In the 19th century, Europe and North America were worlds of nationalism, liberalism and industrialization. It was a time of enhanced political democracy and recognition of civil liberties. There was enormous growth in the size of the educated middle class, as required by industrialization. During this epoch, the greatest technological and economic upheaval since the Neolithic era, the Industrial Revolution, occurred. The middle class and the working class both demanded equal treatment. Equality, respect for human rights and democracy were brought forth by industrialization and the accompanying development of transportation, communication and commerce. The civilization of modernity has eprovoked a demand for a civil society,f Professor Franck says in the above-mentioned article. He also maintains that ethe same independent variables - urbanization, industrialization, the rise of a middle class, the information and communications revolutions -  as have operated in Western societies to unlock the demand for individual autonomy based rightsf would work for other industrializing societies, that these variables eare not societyspeci‚†‚‰ cf and that increasingly eit is becoming apparent that dynamic economic initiative and personal autonomy are indivisible.f A well-known Japanese political scientist, Professor Seizaburo Sato expressed, some time before, similar views to the effect that industrialization promotes equality and, as equality progresses, demand for equal respect for human rights is inevitably strengthened. Professor Sato continues to say that modern industrial civilization is humanistic and universal in character and as such historically the‚†‚‰ rst universal civilization common to the whole world.[ note]

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4. Progress of international respect for human rights

@@(1) The Charter of the United Nations and the Universal Declaration of Human Rights
@@ Towards the end of the Second World War President Franklin D. Roosevelt advocated freedom of speech and belief and freedom from fear and want as targets to be attained for the post-war world. Reflecting this advocacy, the Charter of the United Nations stipulates that one purpose of the organization is to achieve international cooperation in promoting and encouraging universal respect for, and observance of, human rights and fundamental freedoms for all. In 1948, the General Assembly of the United Nations adopted the Universal Declaration of Human Rights as a common standard for achievement for all peoples and all nations to the end that every individual and every organ shall strive to promote respect for, and by progressive measures, national and international, to secure universal and effective recognition and observance of, human rights and fundamental freedoms. Soon afterwards efforts were started in the Commission on Human Rights to prepare a draft of a legally binding convention on the basis of this declaration. Two draft covenants were already presented to the General Assembly in 1954, but deliberations at the Assembly took much time. The General Assembly adopted the two drafts in 1966. They‚†‚‰ nally came into force ten years later in 1976, after the required number of instruments of rati‚†‚‰ cations and accessions were deposited. This was almost thirty years after the proclamation of the Universal Declaration. This was likely due to the fact that human rights issues were long regarded as belonging to matters essentially within the domestic jurisdiction of states under Article 2 (7) of the Charter, and that UN members were inclined to refrain from interventions. This sentiment was also reflected in the careful wording of the Declaration to the effect that it was a common standard for every individual to strive to promote respect and to secure observance by progressive measures. The international community at‚†‚‰ rst was rather cautious in dealing with human rights.

@@(2) From the 1970s to the 80s
@@ From the viewpoint of international lawyers, however, human rights became rights created by international law and, as such, matters of legitimate international concern when the human rights Covenants came into force as legally binding treaties in 1976, so far as their contracting parties were concerned. By today the Universal Declaration of Human Rights seems to have assumed the status of the expression of customary law in this‚†‚‰ eld. The Commission on Human Rights began to handle individual cases around 1970, mainly through its 1253 or 1503 procedures. In the 1970s, however, only certain countries and areas such as Southern Africa, Israeli occupied Arab territories and Chile were main subjects of deliberations. In 1975 the Conference for Security and Cooperation in Europe was held in Helsinki between the East and the West and adopted its Final Act. Under this Act the Soviet Union made the West recognize international borders set out at the end of war, and the East in turn agreed to deal with human rights issues as matters of international concern. The Eastern countries also proceeded to ratify the two human rights Covenants and, as a result, the covenants soon came into force. The Helsinki Final Act of 1975 and the effectuation of the two fundamental Covenants in 1976 together mark a milestone in the process of international promotion of respect for human rights.
@@ Also in 1976, Jimmy Carter became President of the United States and pursued socalled human rights diplomacy. This was an outcome of his own conviction, but also in line with the atmosphere of the American Congress at that time.

@@(3) The latter half of the 1980s and onward
@@ It was, however, as recent as after the middle of the 1980s that work concerning human rights and freedoms in the United Nations organs became more active and extensive. This trend became more distinct in the 1990s after the end of the Cold War. The conviction that human rights should be matters of legitimate international concern and that the provisions of Article 2 (7) of the UN Charter are not absolute in so far as human rights are concerned has been held‚†‚‰ rmly by this time within the international community. It is, therefore, still a phenomenon of a fairly recent origin of the past 10 to 15 years. Awareness that international protection of human rights is essential to international peace and development has begun to spread world-wide. The conviction that human rights protection is a matter of justice has become‚†‚‰ rm and strong.
@@ Many events would indicate the beginning and development of this trend. In this regard I found the two presentations at the autumn meeting of the Japanese Association of International Law last year in Tokyo were informative and interesting.
@@ The‚†‚‰ rst presentation I wish to introduce here is that of Professor Tadashi Imai of Utsunomiya University. Professor Imai points out two measures as very effective for international implementation of human rights protection. One is the thematic approach which the Commission on Human Rights has been actively pursuing to address violations of international concern after the successful work of its Enforced or Involuntary Disappearances Working Group established in 1980. Since then, in the thematic procedures a number of working groups have been established and special rapporteurs appointed to deal effectively with human rights questions to respond to international needs and concern. This is in sharp contrast to the state-speci‚†‚‰ c approach where political considerations tend to hinder active involvement. At present about twenty themes are being followed in the procedures to study situations and to make positive recommendations. The second measure Professor Imai presented as an effective means of implementing human rights protection is the consideration of periodic reports of State parties to the International Covenant on Civil and Political Rights by the Covenantfs Committee to monitor their implementation. This is a process of constructive dialogue between the Committee and the State party concerned. This approach began to be used actively after 1992 when the Committee adopted a wider interpretation of its powers of making recommendations and began the practice of giving its concluding observations to State partiesf reports after their consideration. This I understand was brought about by the change of attitude of the Eastern states at that time.
@@ The second presentation I referred to was made by Professor Hiroshi Ohkuma of Seijo University on political conditionality applied by the EU to its development assistance as expressed in the LomeL Conventions agreements with some African, Caribbean and Paci‚†‚‰ c countries. Up to the 1980s, conditionalities remained only economic ones. After the Cold War, the EU countries began to attach political conditionalities, including respect for human rights, to their development cooperation agreements. These conditions have been strengthened over the course of time. They‚†‚‰ rst took this attitude around the time of the establishment of the European Bank for Reconstruction and Development in 1990. At‚†‚‰ rst a reference to respect for human rights only appeared in the preambles of agreements. In 1991 they made a Ministerial Council decision to put political conditions in the body of agreements. In 1992, one provision stated that respect for human rights is a basic factor for development. In 1995 this was further strengthened by stating that respect for human rights, democratic principles and the rule of law is a basic factor of development and constitutes essential elements of the cooperation agreement. This is another indication to show that the international community is becoming more committed to internationalizing human rights questions.
@@(4) The Vienna Declaration
@@ In 1993 the World Conference on Human Rights in Vienna adopted the Vienna Declaration and Programme of Action by consensus. It was con‚†‚‰ rmed, together with other important points, that the promotion and protection of all human rights is a legitimate concern of the international community, and that democracy, development and respect for human rights and fundamental freedoms are interdependent and mutually reinforcing. There was, I understand, a division of views in the conference as to whether human rights and freedoms are universal in nature or are relative to various cultures. The Vienna Declaration adopted by consensus con‚†‚‰ rming universality in principle shows the trend of thinking of the world community today. This is clearly another milestone in the progress of international protection of human rights and freedoms. But at the same time, we must also pay due regard to the point the Declaration made that the signi‚†‚‰ cance of national and regional particularities and various historical, cultural and religious backgrounds must be borne in mind.

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5. Practices in Japanese court regading this trend

@@ As these developments show, the protection of human rights has only recently come to be recognized as a legitimate concern of the international community. Respect for human rights primarily requires appropriate domestic measures. The practice of the national court, therefore, is a matter of major importance. Possibly in response to this trend, there have been some cases in Japan in which the courts examined and gave their interpretations of the provisions of the civil rights Covenant a little more extensively than before, referring to the related general comments and observations made by the Human Rights Committee of the Covenant. One pertinent example is a judgement by Osaka High Court in 1994 about whether the requirement of taking a‚†‚‰ ngerprint for the purpose of identi‚†‚‰ cation of foreigners staying in Japan over one year is degrading treatment under Article 7 of the Covenant. Here the Court used a general comment of the Committee as a supplementary means for interpreting the Covenant. When Japan rati‚†‚‰ ed the Covenant, the government of course made sure that Japan can implement it within the framework of the Constitution and domestic laws. Moreover, the Covenant has been regarded as a self-executing treaty. It would be, therefore, not necessary for the Court to refer to the general comment of the Committee, but the Court found the comment useful guidance. General Comment No. 20 of the Committee on Article 7 of the Covenant which the Court referred to was issued in 1992, only two years before the case was decided. The work of the Human Rights Committee in preparing general comments has been found helpful, and we can expect that the number of court cases will increase in Japan in which the Committeefs comments are referred to.

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6. Universality and contextuality of respect for human rights

@@(1) Naional particularities and cultural backgrounds
@@ The concept of human rights was originally derived from the relationship between the government and nationals of a state. As a passage in the Vienna Declaration shows, the signi‚†‚‰ cance of national particularities and cultural backgrounds must be borne in mind. Countries have different and various historical, cultural and religious backgrounds and are in different stages and conditions of development. A diversity of civilizations and cultures coexist in our world today. A common standard of respect for human rights should be achieved through continuing dialogues among various civilizations of the world, while at the same time respecting one anotherfs social context. Fundamental rights already regarded internationally as belonging to jus cogens should be universally implemented without delay. As to other rights, there is no necessity for uniform implementation. Priorities may differ and progressive measures may be taken with due regard to relative cultural and social conditions.

@@(2) International observance and the protection of the weak and minorities
@@ The signi‚†‚‰ cance of the international protection of human rights is seen particularly in the protection of the weak and of minority groups, as the group of a society that forms a majority may not clearly realize the plight of other groups without some outside attention. An international standard would be useful in assuring full protection. Especially when rights of ethnic minorities are infringed upon, political unrest could easily be induced, bringing repercussions to peace and stability of the surrounding area and possibly affecting the whole region. Kosovo today is a case in point. This is one of the reasons to stress universality in human rights protection.

@@(3) Mutually reinforcing civil liberties and economic development
@@ More fundamentally, respect for human rights, personal freedoms and civil liberties in particular, is indivisible from the development of modern civilization and industrial society. In this sense human rights are universal within the civilization of modernity. As industrialization and the market economy develop, respect for personal freedom and civil liberties progresses. When personal freedom is not fully respected, free activities of the market will be restrained with an adverse effect upon the development of economy. In the early stages of economic development, a government-led policy of developmental state is often effective and ef‚†‚‰ cient. Resulting political stability is certainly helpful. When, however, development reaches a certain stage, a free market system becomes more ef‚†‚‰ cient, allowing free activities of all participants in the society. Modernization, democracy and the market economy progress together, but their progress may not be uniform. The three factors may take different courses and may proceed at different rates in accordance with social and cultural contexts. A similar observation may be made about human rights protection.

@@(4) Social rights and the market economy
@@ As stressed above, modernization and the market economy are closely related to civil liberties, personal freedom, individual autonomy and democratization. Social rights, on their part, are to soften the violent impact of the market economy, helping to make necessary adjustments or etaming.f They are related to the task of mitigating the effect of gaps between the rich and poor caused by capitalism and the market economy, protecting the socially weak and providing safety-nets.

@@(5) The 21st century and human rights
@@ The globalization of the world economy will further proceed in the 21st century. The market economy will become more and more borderless. Competition will be more harsh and severe. We will face the growing necessity of taming or domesticating this wild market and the task of this taming must still primarily be carried out by the sovereign states. Individually, through international cooperation and with the help of NGOs, states must assume this not at all easy task and live on in the 21st century. Then the human-oriented approach of respect for human rights will become all the more pertinent.
@@ (My appreciation to Professor Leonard Ciano for kindly correcting word usage in the original text.)
@@[note] In some of Prof. Satofs lectures, e.g., the one he gave in November 1992 at the International House in Tokyo and, more speci‚†‚‰ cally to the point, the one given later at a symposium at Keiou University in July 1998.