HECHOS JURÍDICAMENTE RELEVANTES AL CASO EN CONCRETO

Part 1 has discussed the various ways in which participation can be understood and the factors which influence the degree and type o f participation found in a particular context. It has shown that participation can serve different interests and produce various outcomes; that it is by no means an inherently positive force. It is therefore vital to consider the specific ways in which participation should be used in a human rights context, rather than simply assuming that enhanced participation in human rights is of value.

Having discussed the conceptualisation of participation in the abstract, this chapter now applies these understandings o f participation to the specific context of human rights. Part 2 will assess which of these various forms of participation is most appropriate for human rights, in relation both to its underlying principles and fundamental purposes. The aim of Part 2 is therefore to identify firstly what is meant by human rights, and consequently to derive what type of participation is most appropriate for human rights. This will then be used in chapters 2 to 4 as a reference point to compare the extent to which the principles and structures of international human rights law manifest these particular types o f participation.

2.1: The meaning of human rights

Understandings of the basis, meaning and content of human rights are also hugely variable, and mean different things to different people.308 As Henkin identifies, “’human rights’ is common parlance, but not all agree on its meaning and

308 Clapham, 2007: 1-4. See Woodiwiss, 2005 for comparative study o f understandings o f human rights in different contexts.

significance”.309 Human rights consequently have different meanings in different contexts, and can be understood from legal, academic or practitioner perspectives. Key debates include consideration of the philosophical basis of human rights310 and assess whether the source of human rights stems from positive or natural law and whether they should be considered legal or moral obligations.311 There is considerable disagreement regarding a definitive list of rights and the extent to which these are universal and/or represent customary law, ranging from the full scope of rights contained in the UDHR,313 to definitions which focus on basic314 or subsistence rights, or civil and political rights,315 to narrower understandings based on peremptory (jus

cogens) norms of international law. Other debates consider the nature of ‘rights’ in

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terms of their justiciability, or as being inherent or conferred, and the relationship between rights and responsibilities. Human rights have also been considered in terms of the obligations deriving from them.317 Finally, challenges have been made, and defences mounted, to the universal basis o f human rights.318

This variety is further reflected in the interview data collected for this study. The question of ‘what are human rights’ elicited a multiplicity of answers, which demonstrated reflection in practice of the conceptual debates identified regarding the nature of human rights. ‘Human rights’ was understood as a means to limit

309 Henkin, 2000: 5

310 Freeman, 1994, Henkin, 2000: 4-7 311 Nickel, 2007: 10

312 Clapham, 2006: 86

313 see for example Gibney, 2008: 3

314 Shue, 1996: 18-34; see also Donnelly, 1989: 37-45

315 See Donnelly, 1989, 28-37 on the civil-political/economic-social-cultural dichotomy in human rights, also Arambulo, 1999: 16-20; Woodiwiss, 2005: 121.

316 Arambulo, 1999: 83-88

317 Skogly, 2006: 57-72; Clapham, 2006; Shue, 1996

318 See inter alia Mutua, 2002; Woodiwiss, 2003; Cema, 1994; Penna and Campbell, 1998; Baderin, 2001; Pannikar, 1982

government behaviour,319 and as a means to enhance individual freedom.320 Human rights were perceived as inherent,321 but also contextual.322 They were considered both as being manifested through international law323 and as having a more personal significance.324 Human rights were also identified as having legal, political and theoretical meanings.

Clearly, a detailed examination of all o f the various meanings and understandings of human rights is beyond the scope of this project. However, for the purposes of this analysis four key concerns of human rights are identified: universality, empowerment, dignity and justice.

Firstly, although neither the content of current human rights nor the entire concept of human rights is universally accepted, universality remains “a central tenet in human rights discourse”. Human rights define themselves as universal; they are “the rights that one has simply because one is a human being”.327 If human rights were not universal, they would not be human rights.328 Furthermore, positive international human rights law also confirms universality as a key characteristic of human rights. The first major statement of human rights in international law, the UDHR, by its very name explicitly proclaims itself as a statement of universal principles. This universality is further declared through reference to the rights of “all members of the human family” and “all peoples and all nations” (Preamble); consequently the UDHR

319 ID 50, 29/01/08 320 ID 33, 15/01/08 321 ID 32, 17/01/08 322 ID 26,30/10/07 323 ID 9, 17/10/07 324 ID 41, 16/01/08; ID 11, 10/01/08 325 ID 20, 25/01/08 326 Banda, 2003: 3 327 Donnelly, 2003: 10 328 Panikkar, 1982: 93

“constitutes a manifesto advocating the universality of human rights”.329 The principle o f the universal application of human rights is accentuated in subsequent instruments. The Preambles of the International Covenant on Civil and Political Rights (ICCPR) and International Covenant on Economic, Social and Cultural Rights (ICESCR) both refer to “the equal and inalienable rights of all members of the human family”, and use language such as “all peoples”,330 “every human being”331 and “the right of everyone”332 to underline the universality of the rights codified within them.333 Similar statements of universality, both implicit and explicit, are found in other human rights conventions.334 Finally, Article 1 of the Vienna Declaration335 explicitly confirmed that “the universal nature of these rights and freedoms is beyond question... they are the birthright of all human beings”.

In addition, the principles of equality and non-discrimination which underlie the concept of human rights further testify to their intrinsic universality. These principles are reiterated in numerous human rights instruments, including the ICCPR336 and ICESCR and more specifically the International Convention on the Elimination of

329 Tomuschat, 2003: 58

330 ICCPR, Article 1; ICESCR Article 1 331 ICCPR, Article 6

332 ICESCR, Articles 6-9

333 As Tomuschat identifies, exceptions to the universal nature of the rights contained within the ICCPR are related to the substance o f the rights concerned , for example Article 13 on the expulsion o f aliens, and Article 25 on the political participation o f citizens (2003: 59). While such exceptions exist, normative human rights principles are fundamentally universal.

334 For example, “everyone is entitled to all the rights and freedoms set out [within the U DHR]” (Preambles to the International Convention on the Rights o f the Child and the International Convention on the Elimination o f All Forms o f Racial Discrimination); “all members o f the human family

(Preambles to the International Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment and the International Convention on the Rights o f the Child)”, “universal respect for, and observance of, human rights” (Preamble to the International Convention Against Torture); “the universality... o f all human rights” (Preamble to the International Covenant on the Rights o f People with Disabilities).

335 Vienna Declaration and Programme o f Action, as adopted by the World Conference on Human Rights on 25 June 1993, A/CONF. 157/23

336 Article 2(1) 337 Article 2(2)

All Forms of Discrimination Against Women (ICEDAW)338 and the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD).339 This additional emphasis that human rights are to be enjoyed by all, equally and without discrimination, requires human rights to be universal. Furthermore, the inalienability of human rights is additional testament to their inherent universality, as it means that the inescapable fact that human rights are not universally enjoyed in practice does not detract from their innate conceptual universality. This inalienable quality of human rights is underlined within the human rights discourse, with the first principles of the Preambles to the UDHR, the ICCPR and the ICESCR all making reference to “inalienable rights”. As Skogly identifies, human rights exist irrespective of their respect in practice; that “even though the substance of the right is taken away, the right as such remains”.340 Consequently, universality must be considered an inherent characteristic of human rights.

Secondly, human rights are concerned with freedom. The form that this freedom takes, its limits and how it is negotiated are debated, but the central tenet of human rights as an expression of freedom remains. As reflected in Roosevelt’s Four Freedoms speech of 1941,341 human rights encompasses both freedom from (for example, hunger, poverty, abuse; Roosevelt identified ‘fear’ and ‘want’), and freedom

to (Roosevelt specifying freedom o f speech and religion). Freedom in human rights therefore encompasses both emancipation and empowerment. The capabilities approach to freedom links these two elements of freedom through positing it as the

338 For example, Articles 1 and 3 339 Articles 1(1) and 2(1) 340 Skogly, 2001:48 341 Henkin, 2000: 4

capability to fulfil those aspirations the individual has reason to value.342 This approach establishes freedom within human rights as empowerment, through identifying freedom as the power to exert control over one’s own life, including the fulfilment of human rights.

Furthermore, situating suffering in the context of human rights is a means of empowerment,343 because “human rights express not merely aspirations, suggestions, requests, or laudable ideas, but rights-based demands for social change”; they therefore empower citizens to act to claim the fulfilment of these standards and to defend their rights against abuse of power.344 As Shue identifies, “a right is the rational basis... for a justified demand”.345 Empowerment is therefore the means to effect human rights change.346 In addition, the typical tripartite theory of human rights obligations identifies the obligation to facilitate as part of the obligation to fulfil,347 which entails enabling and empowering people to enjoy human rights. Empowerment of individuals is therefore recognised as part of the state’s obligations concerning the protection of human rights. Whilst there remains disagreement over the meaning and application of empowerment, in the final analysis rights are fundamentally concerned with empowerment348 and it must therefore be considered one of the main goals of human rights.

342 Sen, 1999: 18; Kannan and Pillai, 2005: 209 343 Clapham, 2007: 162

344 Donnelly, 1989: 15; Petersmann, 2001: 10 345 Shue, 1996: 14

346 Kenny, 2000: 19

347 Skogly, 2006, 7; see also E/CN.4/Sub.2/1999/12, 28 June 1998, para 52 (c) 348 Coomaraswamy, 1994: 45

Thirdly, human rights are oriented to the dignity of the human person, “described as the ‘super-value’ for the justification of human rights”.349 Dignity is central to the philosophical foundations of the UDHR as set out in Article 1, which specifically stresses the inherent value of human dignity,350 and it is further referenced in other human rights instruments.351 It has also been identified by the General Assembly as an essential reference point for the development of human rights standards.352 Furthermore, the concept of dignity is a recurring theme throughout the human rights discourse, even its more critical elements. This can been seen for example regarding Mutua who, whilst heavily criticising “current official human rights rhetoric”, nonetheless centralises the protection or enhancement of human dignity as the goal of a reformulated human rights,354 This position indicates that acceptance of the concept of human rights entails recognition of the centrality of human dignity to that concept.

Finally, human rights are concerned with justice and accountability. The concept of human rights invokes the principle that states are not free to treat their citizens however they wish, as human rights impose a minimum standard o f protection355 on states through the establishment o f limits on legitimate state behaviour.356 This concern with justice is further demonstrated by the human rights focus on injustice;357

349 Baderin, 2001:90 350 Clapham, 2007: 43

351 For example, the Preamble to the ICCPR refers to “the inherent d ignity...of all members o f the human family”, as do the Preambles to the ICAT and the ICPD. Article 1 o f the ICPD also determines the purpose o f the treaty as being the promotion o f respect for the dignity o f persons with disabilities.

See also Clapham, 2006: 537, at note 14.

352 General Assembly Resolution 41/120, 1986, para 4(b)

353 Mutua, 2002: 8; see also Clapham, 2006: 533, and for discussion o f the concept o f dignity in human rights Clapham, 2006: 535-544.

354 Mutua, 2002: 8

355 Shue 1996, Nickel 2007: 3 356 Skogly, 2006; 47

human rights are a means to achieve justice by overcoming injustice. It is also reflected in the concept of equality within human rights; that a just system requires equality of protection in order to be fair. Furthermore, human rights reflect the principle that states both are accountable and should be held accountable for their behaviour towards their citizens; that states have a duty of protection of human rights. The Vienna Declaration reiterated that ‘the promotion and protection of human rights is a legitimate concern of the international community’;358 consequently, the way in which a state treats people within its territory is not just a matter for that state

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alone. Justice and accountability are therefore additional fundamental goals of human rights.

2.2: Identifying the type of participation appropriate for human rights

It has been identified that human rights are concerned with four fundamental principles: universality, empowerment, dignity and justice. Centralising these principles in relation to the forms, purpose, feasibility and norms of participation therefore enables evaluation of the type of participation most appropriate for human rights.

2.2.1: Modes o f participation required by human rights

As identified in Part 1.1 above, understandings of participation are limited insofar as they tend to focus on political or public participation. Firstly, the concerns of human rights are broad ranging, and, most importantly, deal with both public and private

358 Para. 4

issues and the ways in which these intersect. Although many approaches to human rights have conventionally focused and continue to focus on their public element, as reflected in the traditional prioritisation of civil and political rights, human rights must also have a private element as enjoyment of human rights is affected by action in the private sphere. This is particularly identified by the feminist critique of conventional approaches to human rights, which argues that human rights are traditionally concerned with public and thus masculine concerns, and therefore ignore the private sphere identified with women. They argue that human rights must take account of this private sphere if they are to achieve the goals of emancipation and empowerment.360 In addition, identification of the importance of social, economic and cultural rights and their inclusion in human rights instruments indicates that participation in human rights must extend beyond the political arena. Consequently, understandings of participation in human rights must consider participation in all of these different arenas of social life. Solely political participation may well not be sufficient to fully

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achieve the goals o f human rights.

Secondly, issues of public and private participation in human rights are concerned both with the ways in which individuals participate, and the actors who participate. As noted, participation in human rights must not just encompass the public and political realm, but also the private and social. Participation in human rights therefore must incorporate the actions of private individuals acting in both private and public ways. Furthermore, human rights are the rights of private individuals, conceived as such to regulate the actions of the state. Participation in human rights must therefore reflect participation by individuals as private actors. If principles and structures of human

360 Byrnes, 1992:225-6

rights reflect only state-dominated forms of participation, they will not achieve this goal. Essentially, private individuals must be able to participate in human rights in order for human rights to serve their interests, as is its function.362

Thirdly, participation in human rights must encompass both the formal and informal arenas. If human rights are to be a means to effectively challenge unjust power structures and abuses, it may well be necessary to participate in ways outside a formal structure of participation. Human rights must therefore protect and enable both formal and informal means of participation. However, as noted in section 1.1.2 above, informal modes of participation cannot guarantee influence over outcomes. Human rights are oriented to the needs of individuals, to their empowerment and dignity. Individuals’ formal rights of participation as guaranteed by human rights must therefore be extensive enough to ensure this.

Fourthly, participation in human rights must take place on different levels. Human rights are concerned, as identified, with both private and public elements; they regulate relationships primarily between the individual and the state but also impose obligations on the state regarding matters between private individuals (obligation to protect, children’s rights etc). Participation in human rights must therefore take place at the level o f the individual and the level of the state. Furthermore, participation in human rights at the international level is essential. Human rights represent the principle o f the protection of the individual, irrespective of the actions of the national state. If the individual is unable to participate internationally, and participation in

362 The issue o f public and private actors’ participation in the structures o f human rights is considered in Chapter 3, section 1.1, and Chapter 4, section 2.1.

363 Formal and informal modes o f participation in human rights are considered throughout subsequent chapters, and most specifically in Chapter 5, section 2.2.3.

human rights is effectively limited to the national level, the individual continues to rely on the national state for the protection of their rights, and the international element of human rights protection is severely diluted.364 Participation is therefore a condition for the effective exercise of human rights at both the national and international levels.365

Fifthly, participation in human rights entails activity. For human rights to be a way to protect citizens from the actions of the state and/or to hold the state accountable for its actions, active participation by individuals is required. Participation in human rights cannot be a means to hold the state accountable if the state controls avenues of participation and participation is oriented to the ends of the state. Furthermore, the centrality of dignity to human rights also entails an active conception of the individual; that a person is not the instrument or object of the will of others but has the right to make choices about their life.366 Finally, the goal of empowerment further requires active participation in human rights; it requires that this individual take active control over their life, and is enabled to actively pursue and fulfil their rights.

Sixthly, participation in human rights must be both effective and meaningful. This requires that participation in human rights is genuine, rather than tokenistic; that it has a demonstrable effect over outcomes. Again, this conforms to human rights being oriented to the interests and empowerment of individuals. Participation in human rights, particularly through the ability to access human rights and use them as a means of protection and accountability, cannot be effective if it is open to manipulation and control by states. Furthermore, the degree to which participation in human rights is