Cuadernos Constitucionales de la Cátedra Fadrique Furió Ceriol nº 62/63 (2008): «Essays on the 60th Anniversary of the Universal Declaration of Human Rights and the 10th Anniversary of the Valencia Declaration of Human Responsibilities and Duties»
(Vol. 1)
Violeta Beširevic: «The Discourses of Autonomy in the International Human Rights Law: Has the Age of a Right to Die Arrived?», pp. 19-34.
The issue of whether or not to legalize active euthanasia, including physician-assisted suicide, occupies a high position on the list of the contemporary radical disagreements. The proponents of voluntary euthanasia claim that autonomy should be the legitimizing principle in cases of active euthanasia like it has been in cases of rendering non-treatment legal. The opponents assert that that the right to forgo pro-life treatment and the right to end life with assistance cannot be lumped together under the rubric of the right to die because they differ much in important respects. Starting from the approach of the European Court for Human Rights, in this paper the author shows that the enmity of those who oppose legalization of active euthanasia cannot anymore be lavished on autonomy. However, it does not mean that the international human rights law will automatically uphold the right to die in all its aspects. Whether the right to end life with assistance should be given a modicum of effectiveness is an issue yet to be answered in balancing process against other interests protected by the international law. In the meantime, it is still on the «state laboratories” to decide on revising their traditional prohibition on controlled assistance in dying in medical settings. Whether the change will be set on autonomy rights depends on the political, legal, cultural, and religious traditions of each particular state.
Key words: euthanasia, right to die, right to end life with assistance, autonomy, human rights.
Palabras clave: eutanasia, derecho a morir, derecho a la muerte asistida, autonomía, derechos humanos.
Dumitrita Bologan: «Alternative or/and Complementary Declarations to the Universal Declaration of Human Rights», pp. 35-47.
This article analyses weather various international documents representing different legal systems are alternative or complementary to the first fundamental act in this sphere: the Universal Declaration of Human Rights. The paper strives to highlight the main features, resemblances and contradictions among the Universal Declaration of Human Rights and the Cairo Declaration on Human Rights in Islam, the Bangkok Declaration on Human Rights, the African Charter on Human and Peoples’ Rights, the Declaration on Rights and Dignity of Man, the Universal Declaration on Human Genome and Human Rights and the Valencia Declaration of Human Duties and Responsibilities. Each of these documents enshrines the signatories’ commitment to the observance of human rights and stipulates the rights, freedoms and duties attributable to their specific societies and common for their background. And each of them reflects to a certain extent the same supreme core values of safeguarding and guaranteeing the most fundamental human rights, inherent for the existence of individuals at the time being.
Key words: Declarations of Rights, Human Duties and Responsabilities.
Palabras clave: Declaraciones de derechos, deberes y responsabilidades de la humanidad.
Aristoteles Constantinides: «Questioning the Universal Relevance of the Universal Declaration of Human Rights», pp. 49-63.
The paper revisits the old controversy over the universality of human rights and questions whether the particular conceptualization of human rights embodied in the Universal Declaration of Human Rights is all-inclusive and best befitting all situations, cultures, societies and human beings. In doing so, it presents a brief overview of those rights, actors and activities that are left outside the scope of human rights due to historical, political and conceptual reasons, thus casting doubt on the truly universal relevance of the Declaration. It is argued that the Declaration is a historic but historical document of Western origin despite some involvement by non-Western states and the influence of the socialist ones. Notwithstanding its universal aspirations it embraces particular forms (emphasizing rights, ignoring duties) and falls short of an all-inclusive scope (prioritizing individual over collective rights and ignoring abuses in the private sphere). Yet, genuine participation of the major cultures, religions, ideologies and political systems in the development of the human rights regime is indispensable if universality of human rights is to have any meaningfulness. The underlying idea of the universalists –that the concept of human rights has universal validity– and the underlying idea of the relativists –that contexts count– can be reconciled in the quest of a «new universality» based on a genuine dialogue within and across cultures.
Key words: Human Rights, universality, duties, cross cultural dialogue
Palabras clave: Derechos humanos, universalidad, deberes, diálogo intercultural.
María José Falcón y Tella: «The Right to Resistance to Unjustice», pp. 65-76.
Why is man so prone to obedience and so averse to disobedience? This is because, throughout the entire history of humanity, obedience has been identified with virtue, and disobedience with sin. Faced with gregarious obedience, resistance to injustice proposes a critical attitude, governed by two mottos: «you should dare to know» –sapere aude– and «you should dare to doubt all» –omnibus est dubitandum–. At the present historical juncture, to a large extent, the future of mankind depends upon the capacity to doubt, to criticize, and to disobey injustice. What we try to do here is approach the subject of resistance and disobedience to law from a critical perspective, arriving to the conclusion that, in reality, this is a zone of quicksands, where the one who judges must act with care and stealth, of course, but also with flexibility, keeping his balance, seeking out the happy medium, between disobedience pure and simple and equitable disobedience, or, in 90% of cases, resistance to injustice.
Key words: resistance, civil disobedience, justice, Stanley Milgram.
Palabras clave: resistencia, desobediencia civil, justicia, Stanley Milgram
Jaunius Gumbis, Vytaute Bacianskaite & Jurgita Randakeviciute: «Do Human Rights Guarantee Autonomy?», pp. 77-93.
In the twenty-first century, human rights play a very important role in modern society. The Universal Declaration of Human Rights, released on 10 December 1948, was thought to become an everlasting source of fundamental human rights and freedoms. The Declaration corresponds to the situation that global community was facing 60 years ago. Today it is a collection of articles that is the cornerstone of the whole system of human rights protection. However, gross human rights atrocities, the dynamic process of legislation, technological progress and changing social values have prompted many to revise the concept of human rights. Today many areas of life have changed: we have untraditional marriages and families, the individual enjoys a completely different social status than 60 years ago. These factors have prompted the creation of an entirely new dimension to human rights and freedoms based on personal autonomy, dynamics and self-regulation. Nowadays, the realization of rights and the aspiration to personal happiness are closely connected with personal autonomy. Autos and nomos—these two terms describe the ability of an individual to initiate one’s actions, to realize them by making independent decisions. This article analyzes whether this ability is a natural right or a privilege, what factors determine the exercise of this right, and what is the role of the state in this process.
Keywords: personal autonomy, The Universal Declaration of Human Rights, right to private life, freedom, public interest, human dignity, natural law, universality
Palabras clave: autonomía personal, Declaración Universal de los Derechos Humanos, derecho a la intimidad, interés público, dignidad humana, derecho natural, universalidad.
Vera Lúcia Raposo, Catarina Prata & Isabel Ortigão de Oliveira: «Human Rights in Today’s Ethics: Human Rights of the Unborn (Embryos and Foetus)?», pp. 95-111.
The juridical status of the human being during its prenatal existent remains unclear. Almost all agree that the human embryo and the human foetus are not things (res), but this assumption does imply that they are persons. Between the traditional categories of the «person» and the «thing» we can found some other very diverse juridical entities usually called «tertium genus». The refusal of a personal status cannot leave embryos and foetus unprotected. Nevertheless, the afforded legal protection does not operate necessarily through the concession of rights. International documents on human rights are obscure on this matter, namely because they don’t distinguish materially between «human person» and «human beings». When we analyze the different translations of these documents to the national languages of the signatory-parts the complexity increases even more, since frequently the translation does not follow with accuracy the exact original version. Therefore, we may have different results depending on the version of the document we are consulting, concluding, for instance, that the French edition of some international document recognizes rights to the unborn but the Portuguese does not. This lack of domain regarding juridical language is dangerous and equivocal, therefore, should be corrected.
Key words: embryo, foetus, human rights, human dignity, legal personhood
Palabras clave: embrión, feto, derechos humanos, dignidad humana, personalidad jurídica.
Sten Schaumburg-Müller: «In Defense of Soft Universalism. A Modest, Yet Presumptuous Position», pp. 113-126.
The present paper is work in progress, a preliminary attempt to present a position of soft universalism as regards human rights. The position is not seen as a compromise between contradicting perceptions, universalism and relativism, but rather as a better and more correct position. It takes as a point of departure that human beings are a gregarious species with a highly developed capacity i.a. for individuality and for rights, thus avoiding the liberalists’ mistake of putting the individual first and the communitarians’ of putting society first. The relevant group or society for international human rights is the emerging global society, and human rights law is therefore best understood as (part of) the law of this emerging society. Seen in this way, human rights are an attempt to cope with a (partly) new situation, based on knowledge of human beings and society, a knowledge which has improved considerably since the time of the natural rights theories and the enlightenment. As a consequence prevailing international human rights are not the only possible human rights, and soft universalism is therefore partially open as regards the content of human rights, even though non discrimination and other elements have some naturalness to them.
Key words: Human rights, universalism, globalization.
Palabras clave: Derechos humanos, universalismo, globalización.
Paloma Durán Lalaguna: «Poverty Eradication. The Case of Equality Between Women and Men», pp. 127-156.
Under the frame of the poverty eradication, it is very clear that women are most affected by poverty and consequently are the part of society most vulnerable to the consequences of it. That’s why part of the strategy to improve the situation of humankind is just try to improve the situation of women all over the world. In this paper, I’ll try to explain the activities of the UN in the field of equality between women and men. Despite the fact that the general history of the United Nations and its structure are relatively widely known, knowledge of the work undertaken by the system towards mainstreaming the gender perspective and equality remains relatively unknown. I think it is important to provide a brief chronological account of events, in which I will include moments in the history of the United Nations that are significant in terms of gender policy. I will go over this chronology and the distribution of mandates and competencies in the area. Furthermore, I believe it is important to also address the most relevant legal instruments, as well as those that originated at the World Conferences. By doing so, we can review both the political and legal factors, which undoubtedly complement one another.
Key words: Equality, Women’s rights, poverty, United Nations.
Palabras clave: Igualdad, derechos de las mujeres, pobreza, Naciones Unidas.
Carlos Flores Juberías & Pedro Tent Alonso: «Extending Voting Rights to Foreigners: Reinforcing Equality or Reinventing Citizenship?», pp. 157-186.
The issue of granting the right to vote to immigrants residing in Spain has stirred a debate which in the last years has aroused a growing attention from public opinion, political elites, legal scholars, and political scientists alike, as a consequence of the intensification of the migratory cycles and of the generalized assumption of conceptions of democracy which turn to be more and more demanding. In most countries the right to political participation –the core of which is right to active and passive suffrage– keeps being considered as a privilege attached to citizenship, as a consequence of the principle that sovereignty resides essentially in the nation, and that the nation acts through the representatives legitimately chosen by its citizens. However, the dramatic increase of the migratory flows verified in the last decade has introduced an element of distortion in an equation which, up to this moment, seemed to be reasonably balanced. This article will reflect on the manner in which international legal instruments and foreign constitutions deal with the subject, in order to provide a critical approach to the manner in which this issue is specifically regulated in the Spanish legal system, and to propose some means to improve the political integration of immigrants without capsizing the basis of the entire Spanish political system.
Key words: Immigration, citizenship, nationality, political rights, suffrage
Palabras clave: Inmigración, ciudadanía, nacionalidad, derechos politicos, sufragio.
Josip Kregar & Katarina Džimbeg: «Corruption and the Concept of Human Rights», pp. 187-196.
This article discusses the interconnection between corruption and human rights from three perspectives. First, it states the fact that there is no adequate protection of human rights in a corrupt society. This is especially evident when it comes to corruption in the judiciary, as it is illustrated in the article. Second, the article brings up the idea of both preventive and therapeutic nature of the human rights principles in a corrupt society that should be paid more attention to. This includes the need for good governance, and for such evaluation four main dimensions of good governance are provided. And third, the article emphasizes that the responsibility lies not only with the states and their bodies, but also with all of us. Therefore, it is concluded that both the human rights protection and anticorruption are the tasks of the society as a whole and are two parts of the same struggle.
Key words: corruption, human rights, judiciary, governance
Palabras clave: corrupción, derechos humanos, poder judicial, gobernanza.
Vicent Martínez Guzmán & Fatuma Ahmed Ali: «Education for Human Right to Peace from a perspective of philosophy for making peace(s)», pp. 197-201.
Today we say that conflicts are an inevitable part of human relationships and that what is important is how to regulate them or transform them by peaceful means. For this reason, peace as the final end of the doctrine of right acts as a buttress that helps us to correct our crooked tendencies in both our personal and institutional relationships. Therefore, from the perspective of a philosophy for making peace(s) which is a framework of the UNESCO Chair of Philosophy for Peace, it is important to integrate key aspects of the declaration of the Human Right to Peace into Peace Education. As a result, the Human Right to Peace is both an individual and collective right and a right of synthesis and solidarity. To educate for peace as a right makes us examine the very notion of right from a pedagogical and communicative dimension. The relationship between freedom, right and peace from Kantian perspective and the interpretation of Peace Education from the Human Right to Peace is also analyzed in this article.
Key words: Rights, Human Right to peace, peace education, solidarity.
Palabras clave: Derechos, derecho huano a la paz, educación para la paz, solidaridad.
Athanassia P. Sykiotou: «Terrorism and Human Rights», pp. 203-232.
Even if undoubtedly terrorism presents a global threat to democracy, the rule of law, human rights, peace and security, the events of September 11 have justified the restriction of human rights to which States have been committed to respect since the adoption of the Universal Declaration of Human Rights. In the name of security, States have immediately restricted human rights and freedoms increasing the powers of law enforcement and intelligence institutions authorizing various registration and profiling schemes appearing to target certain groups solely because of their race, ethnicity or religion. However, many of the measures that have been adopted appear to be disproportionate to the threats posed or the goal of enhancing national security. Furthermore, these measures appear to violate the core group of human rights from which there can never be derogation, even in times of emergency threatening the life of the nation. Despite the proliferation of legal anti-terrorist texts both at international and national levels one can observe the lack of determinative clarity on the issue of terrorism as if it could not really be defined or as if the criteria set for its definition are expressly left loose. It seems as if the environment around the issue of terrorism has prepared the way for a de facto legitimization of rules and clauses not yet officially legitimized by international law, but however accepted already in the international community.
Key words: terrorism, restriction of human rights, anti-terrorist measures, organized crime.
Palabras clave: terrorismo, restricciones de derechos, medidas antiterroristas, crimen organizado.
Jakub J. Szczerbowski & Paulina Piotrowska: «Measures to Dismantle the Heritage of Communism in Eastern and Central Europe. Human Rights’ Context», pp. 233-248.
The article discusses the process of lustration and other forms of settlements with the past in post-communist countries in the Eastern and Central Europe. Those processes occur in newborn democracies, and should be in concordance with human rights. The authors use the most significant cases to present the nature of human rights’ violations in dealing with communist informants and officials. After twenty years, which have passed from the fall of communism, the differences in approach to decommunization increased. Interestingly, the emphasis is still put on informants, not on the perpetrators who violated human rights. Another significant phenomenon is the rise in skepticism towards lustration, which in many countries is viewed, especially by the younger part of the population, as a tool of political struggle. The opinion of the general public is divided and the doubts are referring to both the goal of lustration and the method of performing it.
Keywords: lustration, decommunistization, human rights, Poland
Palabras clave: depuración, descomunistización, derechos humanos, Polonia
Jukka Viljanen: « The Role of the European Court of Human Rights as a Developer of International Human Rights Law», pp. 249-265.
The European Court of Human Rights (ECtHR) has been in the avant-garde of human rights law especially in the field of civil and political rights. However there is no water-tight division separating economic, social and cultural rights from the field covered by the Convention. In this paper the focus is on examination of the current doctrines and their relationship towards international human rights law. The paper discusses over the new openings where the ECtHR in the co-operation with other actors could achieve improvements in the contemporary human rights law. These areas include the protection of minorities and other vulnerable groups. The paper also continues the discourse over the network of international human rights instruments and its role not just regionally but at the universal level. The analysis is emphasising evolutive approach to human rights interpretation.
Key words: European Court of Human Rights, civil and political rights, economic, social and cultural rights.
Palabras clave: Tribunal Europeo de Derechos Humanos, derechos civiles y políticos, derechos económicos, sociales y culturales.
