To what extent do the rights of the second amendment extend
Human rights - an introduction
by Michael Krennerich
Human rights - characteristics, legal basis, dimensions
Characteristics of human rights
Human rights are special, fundamental rights which, in their entirety, aim to protect the dignity of the individual and to enable everyone to live a free, self-determined life in community with others. Without preconditions, they are due to every human being on the basis of their "humanity" and are their inalienable rights.
Human rights are linked to the claim to apply universally to everyone without exception. Across specific contexts, they describe a basic set of rights that every single person has. In their capacity as universal rights, human rights are not compatible with particularisms that deny certain (groups of) people their human rights.
In principle, all people are entitled to human rights equally. Due to their egalitarian nature, human rights do not permit any discrimination whatsoever, for example on the basis of racially constructed differences, gender, sexual orientation, national or social origin, language, religion, property, political or other beliefs or other features of discrimination.
Human rights are indivisible: they form a context of interrelated rights. Civil, political, economic, social and cultural human rights are mutually dependent, therefore they are inseparable and can only be had in a “set”.
Human rights are complex rights. In a nutshell, they represent morally justifiable claims, which in - often contested - political processes are designed and implemented as "positive" rights in terms of content. The history of ideas and constitutional traditions as well as concrete historical experiences of oppression and need go into the concrete design and further development of human rights.
However, human rights have been and are formulated in such a general way that their claim to validity goes far beyond the historical context and they are open to different justifications and for different contexts, each with their own traditions and experiences of injustice. They always have a moral content in them.
The question of what is in fact recognized as a human right therefore depends not only on the setting of international legal norms, but also on the moral justification and the political and social recognition of the human rights that they are granted. This requires an open human rights discourse, which ultimately forms the basis for what is actually recognized as a human right.
The legal anchoring of human rights
Regardless of earlier historical links, human rights have been formulated since the late 18th century, above all in the Virginia Bill of Rights and the American Declaration of Independence, both of 1776, as well as in the French Declaration of Human and Civil Rights of 1789. With the “Declaration of Rights the woman and citizen ”, Olympe de Gouges (who was executed in 1793) proclaimed freedom and equality rights for women in 1791 without having their concerns heard. Despite the universalistic choice of words, for a long time human rights represented rights which only gradually and not seamlessly found their way into national constitutions and which - to put it bluntly - were initially enjoyed primarily by the “white” male bourgeoisie. Even when the rights - in long and painful struggles - were extended to all members of the nation in the course of history, it was primarily a question of national legal concepts, the use of which was primarily linked to citizenship.
Modern international human rights protection begins - with the exception of the international labor and social standards of the International Labor Organization (ILO) founded in 1919 - essentially only with the Charter of the United Nations of 1945. This is generally committed, among other things, to the goal of respect to promote and consolidate human rights. The “instruments” of today's global human rights protection serve this goal, namely the Universal Declaration of Human Rights (UDHR) of 1948 and the international human rights treaties based on it (see diagram). The UDHR - actually better translated as “Universal Declaration of Human Rights” - is of paramount importance here and developed a moral, political and now also legal force that was hardly thought possible at the time. Originally adopted as a non-binding declaration under international law, it contains general legal principles and guarantees that are now recognized under customary international law. It is the most important reference point for human rights movements worldwide and forms the basis for many human rights treaties that have been drawn up in the spirit of the UDHR.
Most of the rights of the UDHR were later converted into two binding international treaties: the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights (WSC Rights), both of which were adopted in 1966 and came into force in 1976. Over time, they have been supplemented by a number of international agreements. These do not simply guarantee new human rights. Rather, they concretise and expand the previously anchored human rights from the specific point of view of certain population groups (women, children, migrant workers, people with disabilities) and focus on particular human rights problems (racism, torture, "disappearance").
Fundamental UN human rights treaties
Number of ratifications (October 27, 2014)
International Covenant on Economic, Social and Cultural Rights
International Covenant on Civil and Political Rights
International Convention for the Elimination of All Forms of Racial Discrimination
Convention on the Elimination of All Forms of Discrimination against Women
Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
Convention on the Rights of the Child
International Convention for the Protection of Migrant Workers and Their Families
Convention on the Rights of Persons with Disabilities
International Convention for the Protection of All People from Forced Disappearance
There are also human rights declarations and agreements at regional level, which guarantee all human beings their human rights in their territorial scope. Within the framework of the Council of Europe, in which 47 states are now united, the European Convention on Human Rights (ECHR, adopted in 1950 / in force since 1953) should be mentioned here. In addition, there is the European Social Charter (1961/1965) in its revised version (1996/1999) and more recent agreements to prevent or combat torture, human trafficking, sexual abuse of children and violence against women. The European Union, which now has 28 member states, has its own Charter of Fundamental Rights (2000/2009) and will probably join the ECHR in the foreseeable future.
The Inter-American Protection of Human Rights within the framework of the Organization of American States (OAS) is also well developed. In 1948, six months before the UDHR, the “American Declaration of the Rights and Duties of the People” was passed there. The central agreement here - analogous to the ECHR in Europe - is the American Convention on Human Rights (1969/1978). In addition, there is the additional protocol of San Salvador (1988/1999), which contains economic, social and cultural rights, as well as some agreements which aim, for example, at preventing and combating violence against women or discrimination against people with disabilities.
In Africa, regional human rights protection developed later. The basic document is the African Charter on Human and Peoples' Rights (Banjul Charter) from 1981, in force since 1986, which covers a wide range of rights. In Africa, too, we find specific agreements on the human rights of children and women. Regional human rights instruments in other regions of the world, on the other hand, are only rudimentary. However, the states there are also bound by the UN human rights treaties they have ratified.
In addition, numerous human rights are also enshrined as “fundamental rights” in the constitutions of the nation states. The basic rights catalog of the German Basic Law contains, for example, a number of civil and political basic rights. These are partly formulated as everyone's rights ("human rights" in a narrow sense according to the Basic Law), partly as civil rights which, according to the wording, are only guaranteed to German citizens (e.g. freedom of assembly and association, freedom of movement), albeit with the corresponding protection of fundamental rights extends not only to Germans. The basic rights catalog of the Basic Law dispenses almost completely with social human rights - with the exception, for example, of the protection of the family and individual liberal aspects of social human rights (freedom of occupation, freedom of private schools, etc.). In contrast, the constitutions of some other states, such as the Republic of South Africa, have included not only civil and political, but also economic, social and cultural rights in their catalogs of fundamental rights and thus placed them under special protection.
Civil, political, economic, social and cultural human rights
The canon of human rights, as it is positively anchored in law today, includes civil and political as well as economic, social and cultural human rights. The former include the “classic” civil and political freedom and participation rights, as they have been gradually formulated under constitutional law since the end of the 18th century. Under international law, they are now set out in the International Covenant on Civil and Political Rights as well as in the ECHR and the American Convention on Human Rights. These include, for example, the right to life, the prohibition of torture, the rights to personal freedom, freedom of movement and protection of private life, justice-related rights (equality before the law, presumption of innocence, fair trial, etc.), rights of thought, religion and law Freedom of belief, freedom of expression and of the press, freedom of assembly and association, and the right to participate in public affairs and elections.
Economic, social and cultural rights emerged - at the national level - especially since the 19th century as a result of the industrial revolution. The central point of reference under international law today is the International Covenant on Economic, Social and Cultural Rights, which includes the rights to work (including the prohibition of forced labor), fair working conditions (appropriate wages, equal pay for equal work, safe and healthy working conditions, etc.) ), on health and social security, on food, housing, water, on education, on participation in cultural life and the protection of intellectual copyrights.
International pact on
International pact on
Own diagram. * Accessory prohibitions of discrimination refer only to the rights guaranteed in the contract. ** The right to water is not explicitly mentioned, but is essentially derived from the right to an adequate standard of living and the right to health and was later reinforced by UN resolutions.
The traditional notion that economic, social and cultural rights are fundamentally different from those of civil and political rights, since they do not represent rights of defense and freedom, but merely “rights to perform”, has been revised and revised in recent years can be considered obsolete. Economic, social and cultural human rights are also to be seen as freedoms. On the one hand, they serve to protect individual people, for example not to be exploited, to protect themselves from inhumane working conditions and damage to health, to be able to feed themselves, to maintain a safe living environment, to educate themselves appropriately and not to be prevented or prevented from practicing their own culture not to be excluded from cultural life. On the other hand, the prerequisites must be created so that people can actually lead a free, self-determined life in community with others. This includes active measures against extreme poverty, educational emergencies, labor exploitation, disease, housing misery and social exclusion.1
While civil, political, economic, social and cultural human rights are now enshrined in numerous more recent human rights treaties (e.g. the Convention on the Elimination of All Discrimination against Women, the Convention on the Rights of the Child, the Convention on the Rights of Persons with Disabilities), the more comprehensive, overarching rights to development are based on Peace or a clean environment so far hardly codified. They can be found in various, legally non-binding UN declarations and in some cases in the “African Charter of Human Rights and the Rights of the Peoples”. The best known of these is the still controversial right to development. According to the non-binding UN Declaration on the Right to Development (1986), it represents an inalienable human right “... by virtue of which all people and peoples are entitled to an economic, social, cultural and political development in which all human rights and Fundamental freedoms can be fully developed, to participate ”.
Right holders and duty bearers
The individual at the center of human rights
Individuals are the bearers of human rights. Human rights focus on the “autonomous individual” and protect them. Accordingly, human rights are usually formulated as individual rights (“Everyone has the right to ...”). Even if special human rights treaties refer to individual groups of people, such as women and children, women's and children's rights are individual human rights to which individual women and children are entitled.
Individual human rights, however, also have community and social references. The implementation of civil and political as well as economic, social and cultural rights is hardly conceivable without social coexistence, without being embedded in the community. Individual autonomy therefore always requires social participation, solidarity and inclusion. Accordingly, human rights also protect against social exclusion.
At the same time, human rights, although they are primarily designed as individual rights, work towards a free and equitable organization of the community as a whole.Because people use their human rights, respect those of their fellow human beings, and the state respects, protects or creates the corresponding free spaces, the community in which - ideally - socially and politically autonomous people live in association with others, also changes and act. The protection of the protection of the individual rights thus points far beyond the individual human being.
In addition, there are efforts to anchor additional group or collective rights in international agreements, by means of which, for example, entire peoples or minorities are to be protected. Collective rights in the true sense not only provide special rights for the individual members of a group, but also elevate the group (people, minority, etc.) as such to the bearer of human rights. They are sometimes viewed as independent community or minority rights that must be distinguished from human rights, and sometimes as a special category of human rights. The right of peoples to self-determination is such a collective right, the content of which, however, is a matter of dispute and its practical design. In recent years, the protection of indigenous rights, which have both individual and collective dimensions, has become of legal practical importance.
The main responsibility of the state
States bear the main responsibility for the implementation of human rights. This already results from the fact that international law is primarily a state law. In the form of international human rights treaties, the states mutually undertake to respect, protect and guarantee the human rights of individuals. The states and their organs (such as the police, the military, etc.), which in many places are primarily responsible for human rights crimes, are therefore not allowed to violate human rights themselves. At the same time, they have to take legislative and other “positive” measures to protect and implement human rights.
In more recent international law, a distinction is made between states' obligations to respect, protect and guarantee. While obligations to respect oblige the states not to prevent individuals directly or indirectly from exercising their human rights, obligations to protect consist of the state obligation to protect individuals against interference in their legal position by third parties. Obligations to fulfill oblige the states to enable the exercise of a right through positive performance in the first place.
According to UN interpretations, the three dimensions of obligation refer in principle to all human rights. The obligation triad makes it clear that economic, social and cultural human rights - even if they place greater weight on the resource-dependent performance component than civil-political rights and can often only be implemented progressively in their guarantee dimensions - are not just costly performance rights, but that they also have a defensive and protective character. At the same time, the triad calls into question the traditional view that the implementation of civil and political human rights does not require any state services or resources. In terms of the constitutional interpretation of civil and political rights, the triad of obligations has not yet really caught on in terms of terminology, although corresponding legal comments repeatedly name protection and even warranty obligations in addition to the obligations to cease and desist associated with claims under defense law.
States' human rights obligations
The state refrains from arbitrary killings, unlawful arrests and convictions, torture, censorship, interference with freedom of assembly and association, election fraud, etc.
The state refrains from expropriations and evictions, health hazards, drinking water pollution etc. and does not exclude any population groups e.g. B. from public health and educational institutions.
The state takes measures to protect individuals when exercising their right to assemble, demonstrate or vote, etc. from interference by third parties.
The state takes measures to protect the individual against land evictions, rental usury, health hazards, slavery and exploitation, etc. by third parties.
In countries without constitutional and democratic traditions, the state creates functioning courts and a democratic electoral organization so that individuals can use their basic judicial rights and their right to vote.
In countries without a well-developed health and education system, the state creates a sufficient number of hospitals and schools so that individuals can make use of their rights to health and education. The state takes measures to combat famine, epidemics, etc.
Own diagram: Krennerich, Michael: “Everything you always wanted to know about human rights! Short answers to frequently asked questions ”, Nuremberg Human Rights Center, April 2005
Extraterritorial state obligations
Traditionally, states bear the main responsibility for the human rights situation in their own country. States are obliged to respect, protect and guarantee the rights of people on their own territory or under their own sovereignty. The more recent international law debate also shows “extraterritorial state obligations”. Accordingly, as international actors, states have a human rights obligation.
In this regard, the interpretations of the “Maastricht Principles on extraterritorial state obligations in the area of economic, social and cultural rights”, which around 40 international lawyers and human rights experts from all over the world adopted on September 28, 2011 at the University of Maastricht, are informative and far-reaching. The principles take up principles that UN committees and UN special rapporteurs have already formulated without obligation, and recognize extensive extraterritorial obligations of states to respect, protect and guarantee (see diagram).
Such comprehensive validity is, however, still controversial under international law, and accordingly the legal and political debate about extraterritorial state obligations is still in full swing. It is now widely recognized that states are not allowed to violate human rights themselves in their bilateral and multilateral relationships (do-not-harm approach), i.e. that they have extra-territorial duties of respect. However, it is controversial to what extent states have not only obligations to cease and desist across borders, but also active obligations to act to protect and guarantee human rights. Even if the states acknowledge their international responsibility for human rights, they are reluctant to allow themselves to be bound by international law. It remains to be seen whether the comprehensive recognition of extraterritorial state obligations postulated in the Maastricht Principles will prevail in the face of political and legal resistance.
Of course, it is undisputed that the respective nation-states still bear the main responsibility for human rights in their own country. The extraterritorial state obligations do not relieve the states of their own domestic obligations and only represent an additional dimension of the protection of human rights. As such, however, refer to the entire area of bilateral and multilateral international politics, including the actions of states or governments in international organizations or at the negotiation of new international agreements (such as free trade agreements).
The national states also have an indirect responsibility for the independent action of international organizations - such as the International Monetary Fund, the World Bank, regional development banks or the World Trade Organization - because the government representatives there support the relevant policy. In addition, the question arises to what extent international organizations are directly bound to international human rights standards, since they have a decisive influence on the human rights situation in the respective states. The World Bank's environmental and social standards, which are currently being revised, do not, for example, take sufficient account of such legitimate demands.
Extraterritorial state obligations in the area of wsk rights
Extraterritorial state obligations relate, on the one hand, to state action or omission within or outside the state territory that affects the exercise of human rights in another state; on the other hand, on the global obligation to take measures individually or jointly in international cooperation in order to realize human rights worldwide.
The states, individually or jointly in international cooperation.
Areas of application
Situations a) in which the state exercises state authority or effective control, b) in which state action or failure to act has a foreseeable effect on the exercise of WSC rights, c) in which the state, individually or in international cooperation, is capable To decisively influence or implement measures for the implementation of WSC rights in other countries.
Duty to respect *
No direct impairment of the use and implementation of wsk rights in other countries.
No impairment of the ability of foreign states or international organizations to fulfill their obligations with regard to wsk rights.
No influence on other states or international organizations in order to violate their obligations with regard to wsk rights.
No sanctions and embargoes at the expense of wsk rights.
Protection obligations *
Measures to prevent the use of WSC rights by non-state actors from being prevented or impaired.
Obligation to regulate to protect wsk rights if danger or damage originates from one's own state, from its own nationals or from transnational companies headquartered in their own state.
Use of existing influence to protect wsk rights.
Obligation to cooperate in the protection of wsk rights, including preventive measures, punishing human rights violations, compensating those affected.
Warranty obligations *
Measures to implement WSC rights alone or in international cooperation within and outside their national territory.
Obligation to create an international environment for guaranteeing WSC rights (trade, investments, taxes, finances, environmental protection, development cooperation, etc.).
Obligation to provide bilateral or multilateral aid (where possible).
Obligation to request international assistance (if necessary).
* Only choice of commitments.
Own compilation of extracts from the “Maastricht principles on extraterritorial state obligations in the field of economic, social and cultural rights” (2011).
Corporate human rights responsibility
In view of the advancing economic globalization, there is a lot of discussion about the human rights obligations of private commercial enterprises, which can have a positive as well as negative influence not only on the rights to work and fair working conditions, but also on the entire range of human rights. It is true that transnational and national companies are in principle subject to regulation by the state in which they conduct their business, and actually have to adhere to national laws and regulations that should prohibit or sanction business practices that are contrary to human rights. But in many states - especially weak, corrupt or even just competing for locational advantages - corresponding laws are missing or failing, or they are simply being ignored and undermined. Sometimes the companies also benefit from state human rights violations.
Such practices have repeatedly given impetus to demands and efforts to make private companies more responsible in terms of human rights. This can be done in different ways: a) by developing and expanding state regulations and capacities so that states (can) fulfill their obligation under international law to protect people on their own territory from human rights violations by national and transnational companies; b) through the development and application of national laws that make it possible to regulate and sanction transnational activities of companies in their “home states” if they violate human rights in other countries; c) by drafting and adopting international agreements that bind companies in terms of human rights; d) through the voluntary, human rights commitment of companies. In addition to a large number of voluntary codes of conduct of very different quality, there have been OECD guidelines for multinational companies since 1976, which contain recommendations of the participating governments to multinational companies based or operating in the country on responsible business conduct. A chapter on human rights was included in the new version of the 2011 guiding principles.2
The state's duty to protect and the strengthening of corporate human rights responsibility are central components of the UN principles on business and human rights adopted in 2011, which have shaped the discussion on business and human rights in this regard in recent years. They encompass three dimensions: a) the state duty to protect, according to which the states must protect people from interference with their human rights by third parties - in this case private companies (state duty to protect). Insofar as this concerns protective obligations towards companies operating in one's own country, these are already firmly anchored in the existing human rights regime. Binding extraterritorial protection obligations with regard to foreign activities of companies based in their own country, however, are only just emerging; b) the independent (internationally non-binding) responsibility of private companies to respect human rights and to exercise due diligence (corporate responsibility to protect); c) Access to legal remedies and redress, which must be granted by the state within the framework of the state's duty to protect and should be granted within the framework of private-sector responsibility on the part of companies (access to remedy)
Internationally binding and sanctioned instruments for the international regulation of companies in the field of human rights do not yet exist. Corresponding attempts - for example in the form of the 2003 draft for “UN norms on the responsibility of transnational and other companies with regard to human rights” - regularly failed due to resistance from states and companies. However, despite opposition from the USA and EU countries, among others, the UN Human Rights Council passed a resolution in June 2014 to set up an open working group with the aim of working out a corresponding agreement. However, the mandate only applies to transnational and not also to national companies that are no less able to disregard and violate human rights. Under international law, these are still not obliged to do so if the state is unwilling or unable to sanction and prevent corporate human rights violations. Politically, there is a risk that the processes of implementing the UN Guiding Principles and developing binding rules for transnational companies under international law will be played off against each other. It should be pointed out more clearly that both processes can complement each other.
International human rights protection
Human Rights - A Paper Tiger?
Despite all human rights treaties, human rights are trampled on around the world. So are human rights just a “paper tiger”? In fact, the international protection of human rights has no effective and compulsory means of control and enforcement - comparable to national law - to enforce human rights. It is true that the contracting states of human rights treaties are obliged to give an account of their actions (reporting obligation). Investigations can also be initiated against state human rights violations or complaints from other states (state complaints) or affected individuals (individual complaints). On the basis of the European Convention on Human Rights, the European Court of Human Rights in Europe can also issue legally binding judgments on individual complaints, which, albeit with a delay, are followed by the majority.Ultimately, however, governments can only be forced to act in accordance with human rights to a limited extent.
To a large extent, international human rights protection is therefore dependent on states adhering to their self-commitments under international law and cooperating with the international community. However, the willingness to behave in accordance with human rights can be demanded and promoted in a variety of ways, for example: through discursive learning processes that are initiated in human rights forums; through formulated behavioral expectations on the part of the international community of states, B. be expressed in reports and recommendations by human rights bodies and on which governments should or should orientate themselves; through decisions of international complaints boards, regional human rights courts and national courts relating to human rights; by denouncing human rights violations and public protests, which have a political effect in the sense of “shaming” and “harassing”; through "silent diplomacy" and pressure from governments and international organizations; through political or economic incentives for behavior that conforms to human rights (e.g. EU accession, trade facilitation, development aid) or through political and economic sanctions (entry bans, freezing of accounts, trade embargo, etc.). In extreme cases, such as genocide, “humanitarian” military interventions can also occur, but these are highly problematic and certainly not suitable as a standard solution for enforcing human rights.
Even without military means of coercion and in compliance with the general prohibition of violence in international law, the supposed paper tiger is not completely toothless. The entire spectrum of measures can be found in state and non-state human rights policy. Civil society human rights organizations and networks are of great importance here: They not only document human rights violations and conduct public protests and campaigns. They have a decisive influence on the transnational human rights discourse, promote organizational skills and the ability to act and thus the empowerment of those affected, influence decisions by states or international organizations that are significant in terms of human rights, prepare parallel reports and support lawsuits and complaints before national and international courts and committees. They also demand the protection of human rights defenders as well as help for those affected and their survivors, or they provide this themselves. All of these measures have large and small effects that are often not immediately and clearly recognizable.
The punishment of human rights criminals
Every state is obliged to prosecute and punish human rights criminals in their own country. The courts of the respective country are therefore initially responsible for punishing the offender. But it is not uncommon for human rights criminals to go unpunished by enjoying political amnesties or by using political influence and money to evade the reach of a weak or corrupt judiciary. In Latin America, the term “impunity” (impunidad) has been used for this.
If the national legal system remains inactive or fails, it is hardly possible internationally to punish the criminals. Serious human rights violations such as genocide, crimes against humanity, war crimes and wars of aggression are an exception. Such cases can be taken up by the International Criminal Court in The Hague, which was established in 2002. The court is the first permanent international judicial body that can convict individuals for the most serious human rights crimes. Previously, there were individual ad hoc courts that punished such crimes with geographically and temporally limited mandates. In addition to the military courts of Nuremberg and Tokyo after the Second World War, the best-known examples here are the ad hoc criminal courts for the former Yugoslavia and Rwanda. Mention should be made, however, of “hybrid” or “internationalized” criminal courts or chambers of criminal courts, which are composed of local and foreign judges and act on national and international legal bases (East Timor, Sierra Leone, Cambodia, Bosnia-Herzegovina, Kosovo etc.).
In addition, human rights criminals who remain unpunished in their own country have to answer before the national courts of other countries under certain conditions. However, all of these measures presuppose that human rights criminals who are wanted with an international arrest warrant are also caught and extradited.
Human rights - timeless and unreservedly valid?
Changing human rights
As a result of historical processes, human rights enshrined in international law are still subject to change. Even if the “standard-setting” is well advanced, the “catalog” of human rights can be changed and expanded. In the past decades, numerous human rights agreements have been drawn up that differentiate the rights postulated in the UDHR and put them in concrete terms with regard to vulnerable population groups and special human rights problems. In principle, it can be assumed that new experiences of injustice and future changes in human living conditions and social relationships (e.g. in the area of genetic engineering or digital communication), combined with criticism of inadequacies in the existing protection of human rights, will continue to generate new human rights.
At the same time, human rights agreements are “living instruments”. The understanding of the already standardized rights anchored in human rights agreements is not rigid. Many international law and political debates currently revolve less around the establishment of new human rights than around a contemporary interpretation of existing rights. Social human rights are an example of this. Due to their substantive definition and further development, especially at the UN level, the understanding and meaning of these rights have changed considerably since the 1990s. Accordingly, social human rights are no longer perceived as vague, non-binding program sentences, but as more precisely defined, enforceable and enforceable rights.
However, the historical openness to development of human rights does not mean arbitrariness: the establishment of new and the reinterpretation of existing human rights are necessary to take into account changing circumstances and problems, but they must always be checked to see whether they are systematically integrated into the Embed the structure of the existing human rights protection.
This also applies to the understanding of who is the bearer of human rights and who is obligated by human rights in what way, which is also determined by contemporary historical norms and interpretations. As already mentioned, there are currently developments that no longer limit human rights to the relationship between the individual and the state, which still characterizes the existing human rights treaties. In some cases, collectives, such as indigenous communities, are elevated to bearers of human rights, and attempts are made to oblige international organizations and private actors - above all commercial enterprises - to respect human rights beyond the state.
Setbacks in the development of human rights
The development of human rights is not in a straight line and is repeatedly marked by setbacks. Against the background of persistent, recurring and new injustices, human rights must be constantly defended, demanded and fought for.
Many governments worldwide - also in Belarus and in the countries of the Council of Europe such as B. Azerbaijan and Russia - bluntly violate human rights with the pretended reference to the raison d'être or public order. In authoritarian regimes in particular, people who stand up for human rights (human rights defenders) and those around them are harassed and threatened or are affected by arbitrary arrests, kidnappings, torture and murder. The mood in society, which is sometimes stirred up against people who stand up for their own rights or the rights of others, continues to give cause for concern. Sometimes human rights defenders are discredited, stigmatized and criminalized as troublemakers, law breakers and (sympathizers of) terrorists.
Even democracies, which by their very nature (should) protect human rights, are not immune from human rights violations. The USA, for example, which can refer to a long democratic and liberal tradition, has violated internationally recognized human rights in the context of the fight against terrorism - for example through torture and mistreatment, kidnapping flights, illegal imprisonment and worldwide surveillance of communications.
Human rights organizations also repeatedly point out human rights problems in Europe, criticizing, for example, the handling of refugees, the discrimination of minorities (such as the Roma), the existing racism not only on the margins of society or the interference with informational self-determination. It is all the more important that democracies conscientiously respect, protect and guarantee human rights - and that they only undertake any interference with human rights on a legal basis, for legitimate purposes and in strict compliance with the principle of proportionality. An alert civil society is the key to protecting human rights in democracies as well.
Legitimate restriction of human rights
While some human rights, such as the prohibition of genocide, torture or slavery, are absolute and must not be restricted under any circumstances - not even in emergencies - most other human rights permit restrictions within very narrow limits for objectively qualified, legitimate reasons. The jurisprudence speaks here of "limits" of human rights.
Such barriers are sometimes expressly mentioned in the human rights treaties themselves, particularly clearly, for example, with regard to freedom of expression, assembly and association. Permissible purposes of interference in a democratic society are, for example, the maintenance of national security or public order, the prevention of criminal acts and the protection of the health or the rights and freedoms of others. For example, the right to assemble can be restricted if there are concrete indications that acts of violence have been committed by the assembled.
Due to the high risk of abuse, however, any restrictions must be checked particularly carefully on a case-by-case basis: the interventions must not be arbitrary, but must be based on a clear legal basis, they must be well founded and the principle of proportionality must be observed extremely strictly. In cases of doubt or disputes, appropriate courts, such as the Federal Constitutional Court or the European Court of Human Rights, decide on the admissibility of the restriction of fundamental and human rights
In extreme emergencies, especially during war, the state can also take measures that deviate from (non-emergency) human rights on the basis of appropriate “derogation or emergency clauses”. Here, too, the prohibition of discrimination and the principle of proportionality must be strictly observed.
Human rights - valid worldwide?
Human rights fix a basic set of rights that should apply to everyone, regardless of where they live. The claim to the universal validity of human rights can be justified in different ways: from anthropological and essentialist to reason, treaty and discourse theoretical to religious reasons. Against the background of bad experiences of violence and oppression, the claim to universality of human rights is also becoming very persuasive historically. Human rights have a worldwide effect because they (can) counteract oppression and discrimination in all cultures. Under international law, the claim to universality is expressed in international human rights treaties that a large number of states in the world have signed and ratified. This means that under international law, most states have already committed themselves to respecting, protecting and implementing important human rights.
At the same time, the universality of human rights is repeatedly called into question. Culturally relativistic arguments are often encountered here, according to which human rights are a “Western invention” and can only be applied to other cultures to a limited extent. It is not uncommon for human rights to be seen as an expression of a “western”, individualistic image of man, which gives the rights of the individual priority over those of the community. In other cultures, however, according to the criticism, cohesion and the functioning of the community are more important than the free development of the individual.
In fact, the relationship between the individual and the community is a central point of contention in the conflict between and within cultures (including ours). And this relationship must be carefully explored in every society and in every culture. Against the background of diverse historical experiences of oppression and external determination, human rights consciously place the “autonomous individual” in the center and protect them. But that does not mean that human rights would speak to an unconditional egoism. Rather, the content of the program has already been given to human rights, not only to respect and protect one's own rights, but also the rights of others. Human rights are therefore always in the service of a free and equal coexistence of people and as such are the main building blocks of a free, solidary social order. To put it very simply: where a “culture of human rights” prevails and is institutionally secured, it is generally easier to live not only as an individual but also as a community than in a society that does not know and respect individual human rights.
Certainly, there is always an emancipatory, critical impulse inherent in human rights. And this impulse inevitably meets with resistance where traditional power relations, understanding of roles, norms and traditions are called into question. We are aware of these problems in many even more traditional societies, for example in Africa or the Middle and Far East. We are also familiar with these conflicts from Europe. What is often overlooked, human rights are not a natural part of Western tradition. In Europe, too, they had to be fought against against all kinds of resistance. Like the idea of human rights, resistance to human rights is part of recent European history.
Last but not least, the European history of human rights also shows that a critical mediation between “modern” human rights and ancient traditions is possible. And although human rights in their current form have their historical origins in the West, they offer many points of contact for other cultures in which ideas of human dignity and moral rules derived from them were also developed. Other regions of the world also offer starting points for a critical mediation between human rights on the one hand and cultural or religious tradition on the other. Where the opportunities and limits of such mediation lie must be explored in an open, critical discourse. Sometimes it will be found that certain behaviors - such as debt bondage, female genital mutilation or draconian punishments such as stoning or cutting off hands - are no longer compatible with human rights.
It is important, however, that the enforcement of human rights does not aim to destroy cultures, but rather aims to change them in the interests of human rights. It is about the integration of human rights in changing and multi-layered cultures, which as a rule does not take place without resistance and counter-movements. The impulses for change do not necessarily come from the “West”, but often arise within the respective, heterogeneous societies - in the fight against oppression, exploitation and need. The culturally relativistic criticism of human rights must therefore be relativized for its part. There is much to suggest that human rights are of fundamental importance, both for the protection and free development of the individual and his or her human dignity and for the establishment and existence of a community based on freedom and solidarity. Ultimately, this reinforces their claim to universal validity.
Of course, the discussion about the universality of human rights is made more difficult by the - not entirely unfounded - mistrust that powerful Western states would pursue solid power and interest politics under the guise of human rights.However, this is not an argument against the universality of human rights, but only against the political instrumentalization of human rights for other purposes. Coherence in human rights policy is therefore essential for the credibility of the universal human rights concern. Also in German politics!
1 See in detail: Michael Krennerich: Soziale Menschenrechte. Between Law and Politics, Schwalbach / Ts. 2013.
2 In Germany, however, human rights organizations criticized the course of the complaint procedure before the national contact point (in the Federal Ministry of Economics) and urged that the potential of the OECD guidelines be developed more strongly; See CoRA Network / Human Rights Forum: “Recommendations to the Federal Government on the Introduction of an Effective Complaint Mechanism within the Framework of the OECD Guidelines for Multinational Enterprises”, Berlin 2014.
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