Self Determination and Human Rights

Nearly every day there are media reports from around the world about some demand for "the right of self-determination". This demand has been heard from Kurds and Palestinians, Tibetans and Kashmiri, and from indigenous and racial groups,
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  … ..School of Law ……     HUMAN RIGHTS LAW Self Determination and Human Rights ABSTRACT Nearly every day there are media reports from around the world about some demand for "the right of self-determination". This demand has been heard from Kurds and Palestinians, Tibetans and Kashmiri, and from indigenous and racial groups, among many others. The concept of self-determination has classically been linked to the idea of self-government. At the present day, a rough definition could be given for self-determination as the right of peoples to decide their own political status. Self-determination has been referred to as a fundamental principle of international law and with its inclusion in the International Human Rights Covenants, it became a human right. It was first included in the Charter of the United Nations as one of the guiding ‘Purposes and Principles’ of the Organisation, and subsequently it has been proclaimed in numerous international instruments. Briefly, the right to self-determination gives peoples a free choice, which allows them to determine their own destiny. Despite the powerful appeal of the right of self-determination, there are a few problems associated with it. Apart from being a source of many violent conflicts, the principal shortcoming of self-determination is that there is no generally accepted definition of the rights holders, which has seriously affected the exercise of this right. In the current paper, the legal framework of right of self-determination within International and Human Rights framework has been explained with an objective of balancing the competing values with the limitation on right of self-determination under Human rights framework. Parantak Yadav LL.B (Hons) Integrated.  1 | Page  Table of Contents 1.   Background 2.   Categorization of Human Rights 2.1.   1 st  Generation or Enlightenment (17 th -18 th  Century) 2.2.   2 nd  Generation or Socialist tradition (19 th  century) 2.3.   3 rd  Generation or Solidarity Rights (20 th  century) 2.4.   4 th  Generation or Rights of Future Generation 3.   Self Determination 4.   Self Determination under conventional Law 4.1.   The United Nations Charter 4.2.   The International Bill of Rights 5.   The "Peoples" Approach to the Right of Self-Determination 6.   Self-Determination Within the Human Rights Framework 6.1.   Self-Determination Has Limitations on its Exercise 6.2.   Self-Determination Has Limitations to Protect Other Rights 6.3.   Self-Determination Has Limitations to Protect the General Interests of Society 6.3.1.   Territorial integrity 6.3.2.   Uti possidetis juris 6.3.3.   Other aspects of international peace and security interests 7.   Conclusion  2 | Page  ‘Self  -determination has never simply meant independence. It has meant the free choice of  people.’    -Rosalyn Higgins Background In history, there have always been aggressive and strong centres of power that dictated their own rules and enforced their pretended “values” through violence. Thereby value systems, philosophies and ideologies with a devastating aftermath for humankind were generated. Sad climaxes of these grave violations of human rights were the First and Second World War, at the end of which the international governments realized the necessity to agree on a universal value system that was accepted by everyone and which should guarantee a life in peace and with a minimum of personal freedom to all human beings. Thus, as direct reaction to World War II and its disregard and disrespect of human rights that led to acts of barbarism, on the 10th of December 1948 at the Palais de Chaillot in Paris, the General Assembly of the United  Nations proclaimed and authorized the Universal Declaration of Human Rights (“All human  beings are born free and equal in dignity and rights.”  Universal Declaration of Human Rights). Since then the 10th december is celebrated as International Day of Human Rights. Declared aim of this declaration is that, Human Rights should be protected by the rule of law, if man is not to be compelled to have recourse, as a last resort, to rebellion against tyranny and oppression,”.  Thereupon in the year 1968, the General Assembly of the United Nation resolved on the, under international law binding, Covenants of Human Rights: “International Covenant on Civil an d Political Rights (CCPR)” as well as the “International Covenant on Economic, Social and Cultural Rights (CCPR)”. Both became operative in the year 1976 and are binding. Human Rights can be defined those subjective rights that every human being is entitled to in equal measure. In a more narrow sense, the term “Human Rights” is understood as antonym to “Civil Rights” and therefore stands for basic rights that, independent of the nationality, are inherent to all human beings. The concept of human rights acts on the assumption that all human beings are endowed with the same rights due to their person hood and that these rights, targeted on political, civil and social equality are universal, inalienable and indivisible. The idea of human rights is closely connected to the idea, developed during the era of Humanism and Enlightenment, of the “Natural Right” (every human being is endowed by nature with  3 | Page inalienable rights  –   independent of gender, age, nationality or the form of government he lives in  –   which include the right of life and physical integrity and the right of personal freedom). Through this phrasing and assessment of basic rights in constitutions and international agreements, human rights have now become actionable rights. Nowadays human rights are the “only value system, which rightfully can claim the titl e of universal application”.   Categorization of Human Rights In 1979, Czech jurist Karel Vasak introduced 3 different categories of human rights 1  at the International Institute of Human Rights in Strasbourg. His theory was based on the 3 tenets of the French Revolution. These are liberty, equality, and fraternity. As such, he divided human rights in civil-political, socio-economic, and collective-developmental rights. 1  st  Generation or Enlightenment (17   th -18  th  Century) The first tier or "generation" consists of civil and political rights and derives primarily from the seventeenth and eighteenth-century political theories noted earlier which are associated with the English, American, and French revolutions. Think "life, liberty, and the pursuit of happiness." This approach favors limiting government by placing restrictions on state action. The rights set forth in Articles 2-21 of the Universal Declaration of Human Rights include: freedom from discrimination; freedom from slavery; freedom from torture and from cruel, inhuman, or degrading treatment; freedom from arbitrary arrest and detention; the right to a fair and public trial; freedom of thought, conscience, and religion; freedom of opinion and expression; and the right to participate in government through free elections. These rights represent the first generation of subjective rights, and more precisely those rights that refer to personal autonomy of the individual and the rights that enable citizen participation in power in a society where "the exercise of natural rights of each man has no limits, than those which ensure for the other members of society the same rights". In the modern age, these rights have found their consecration in constitutions and in the laws of most countries, as well as in international documents. 1  Karel Vasak, "Human Rights: A Thirty-Year Struggle: the Sustained Efforts to give Force of law to the Universal Declaration of Human Rights", UNESCO Courier 30:11, Paris: United Nations Educational, Scientific, and Cultural Organization, November 1977.  4 | Page   2  nd   Generation or Socialist tradition (19  th  century) The second generation of rights broadens the primarily political focus of of earlier views to include economic, social, and cultural rights. This view srcinates primarily in the socialist traditions of Marx and Lenin. According to this view, rights are conceived more in positive rather than negative terms, and thus encourage the intervention of the state. Illustrative of these rights are Articles 22-27 of the Universal Declaration of Human Rights. They include the right to social security; the right to work; the right to a standard of living adequate for the health and well-being of self and family; and the right to education. The International Covenant on Social, Economic and Cultural Rights outlines the global framework for this generation of human rights. These rights come from positive law, as well as from international law (International Covenant on Economic, social and cultural). This dedication has not the same coverage, as in the case of first generation rights, as consecration requires significant effort from the State and so it is appropriate to everyone’s prosperity. Th e second generation of rights, against the first generation of rights requires institutional support from the state, the first generation rights can be exercised independently and singular. The state must intervene through legislation to create an institutional system that allows the exercise, for example, of the right to education or retirement. It is estimated that if the first generation rights form "free status”, social economic rights are related to the “social status” of the individual.    3  rd   Generation or Solidarity Rights (20  th  century) In this category we can identify the so called solidarity rights, rights which can not be exerted only by an individual, but only collectively. The term "third-generation human rights" remains largely unofficial, just as the also-used moniker of "green" rights, and thus houses an extremely   broad spectrum of rights, including 1.   the right of people to self-determination; 2.   the right to peace; 3.   the right to development; 4.   the right to humanitarian assistance; 5.   environmental law; 6.   the right of sexual minorities, ethnic, religious, linguistic, etc.


Sep 22, 2019
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