The Call for Papers to the 4th ESIL Biennial Conference “International Law 1989 – 2010: A Performance Appraisal” that will be held in Cambridge, England, on 2 – 4 September 2010 was closed at midnight.
I presented an abstract to be considered under the Agora 7: Human Rights: “Understanding Human Rights and European Values”. This is an excerpt of my introductory lecture to the course that I read in the University of Tartu “Protection of Human Rights under EU Law”. I thought that the argument about the historical development of values up to the European Convention of Human Rights could relate the overall idea of the Agora that asks for the development of human rights standards and mechanisms in the context of the Cold War period characterized by decolonization, but nuclear proliferation, etc. The theoretical organizers of the conference have an idea of human rights as of the „secular religion of the West“, which is true – the European values on one hand have, but at the same time have not directly grown out of and been related to religion. Consequently, they are to be named generally as „values“. Finally, the codification of European values into the ECHR confesses of normative development of international human rights law. The importance of the deconstruction of the historical mind lies in the fact that we now enforce the human rights that were worded and codified during the Ist half of the 20th Century.
The text of my Abstract (it may seem too general, but it includes “all” the important questions):
„A frequent answer to the question, “Why do human rights exist?” is that there exists the need to recognize the inherent dignity and equal and inalienable rights of all human beings. Such answer may raise a further question – “Why should inherency, dignity, and rights be recognized?” That question has been answered by, for example, Marek Piechowiak so that inherency, dignity and rights should be recognized since they are the foundation of freedom, justice and peace in the world. But if we think deeply, do we k n o w, what do all those notions mean, for example what „dignity“ means? Some people understand dignity as uniqueness of being human, meaning that as no human being is more human than other human being, individuals should be equally respected. This understanding may rise the question, “What do the notions of “equality”, „equal dignity“ and „equal respect“ mean?” May those mean equal attempts to protect individuals, to guarantee equal possibilities and means of development, and proportionally equal distribution of burdens and public goods that maximizes the general welfare? What does „proportionally equal“ – proportionality in the context of equality of human rights mean? Are social utility and a person’s human right equal categories or should one put human rights and justice first? And how would the content of a human right be affected if it could be constrained for the sake of common welfare? In such context the paper supports Roland Dworkin’s views that place human rights anterior to the general interest – Dworkin’s views allow the conclusion: if infringements of human rights could be justified by public interest, that would finally destroy justice. Human rights still remain connected to society and the paper discusses the ways and reasons of such connection, as well as limitations of human rights.
For the reason human rights derive from dignity, those rights are named universal. But the existence of different cultures and different political systems have made us doubt and ask, whether the existence of universal (international) human rights that were there before is possible, or have the different societies shaped what human rights are? It is difficult to find something similar to all autonomous and subjective human beings against the background of cultural and other development differences and therefore one talks of relative universality or universal relativity in the context of human rights. In addition, if all people cannot be more than subjective – how can subjective people know what objective rights are? Consequently, one might ask whether human rights dictate the norms and laws, or can norms and laws say what human rights are? Which brings us to the further questions, “Isn’t the content of rights actually determined by the political will of the governors?”, “How much does politics affect the content of rights?”, or more focused: “Is the protection of the rights of a fetus a political decision or a universal understanding?” And, “If a government forbids a right, does it still remain universal right?”
In such context, the paper approaches human rights conceptually. First, the author tries to define fundamental rights and human rights. Thereafter, the author generally discusses the relations between human rights and democratic values. Finally is discussed the way of the values to the ECHR“.
An option could have been a paper under the Agora 8: International Lawmaking: The main questions of thought here related to the Conference – Does article 38 of the Statute of the International Court of Justice still reflect the formal sources of international law? If not, what new sources have emerged? Has „soft“ law been used to circumvent the limitations imposed by the requirement of state consent?, etc.
BTW: This was my 100th posting. I did hope to devote that posting to values, though, at present, the set of values remained very general.