The Seven Rules of Nationalism

Transcription

1 The Seven Rules of Nationalism 1. If an area was ours for 500 years and yours for 50 years, it should belong to us - you are merely occupiers. 2. If an area was yours for 500 years and ours for 50 years, it should belong to us - borders must not be changed. 3. If an area belonged to us 500 years ago but never since then, it should belong to us - it is the Cradle of our Nation. 4. If a majority of our people live there, it must belong to us - they must enjoy the right of self-determination. 5. If a minority of our people live there, it must belong to us - they must be protected against your oppression. 6. All the above rules apply to us but not to you. 7. Our dream of greatness is historical necessity, yours is fascism. Formulated by David C.Pugh, Norwegian Refugee Council Woelk Minority Rights 1

2 We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. Declaration of Independence, 4 July 1776 Woelk Human Rights 2

3 1. What are Human Rights (HRs)? Human rights are universal, inherent and inalienable rights which each individual has due to the very fact of human existence and dignity. Whereas recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world. (Preamble of the Universal Declaration of Human Rights, 1948) Human rights are rights which regulate the relation between State/Government and those who are subject to this power. But Rights are successful political claims. Woelk Human Rights 3

4 2. Historical background HRs as citizens rights (rights limiting the sovereign authority vis-à-vis its subordinated): Magna Charta Libertatum (1215) Bill of Rights (1689) Codification since the 18th century in State constitutions American Declaration of Independence (1776) and North American Constitutions (1791) French Declaration on the Rights of Man and the Citizen (1789) Sovereignty!!! Woelk Human Rights 4

5 3. Philosophical background John Locke (natural philosphy - 17th /18th century) there are natural rights which belong to a person because he or she is a human being rather than because a citizen of a particular state by nature free, equal and independent A man cannot subject himself to the arbitrary power of another. Everybody retains his natural freedoms vis-à-vis the state, consequently, the way is open for fundamental rights which the individual can oppose to illegitimate requests of the state. Woelk/CoDe Human Rights 5

6 4. HRs in History: Evolutionary Process Generations of HRs State 4.??? 3. Collective Solidarity 2. Social, econ. + cultural Substantial equality - positive 1. Civil + political Liberty - negative International Law 1. Slavery 2. Humanitarian Law (Red Cross) 3. Minority protection Woelk Human Rights 6

7 5. Multilevel protection of HRs Constitutions Catalogues or applicability of international law (e.g. Austria, BiH) Directly applicable Guarantees International/EU Law Treaties/Conventions/Directives (EU) => legally binding Customary law (opinio iuris ac necessitate) => binding Declarations/Recommendations (in part. OSCE) => morally/politically binding Signature and ratification Incorporation into domestic law Monitoring (state reports) Complaint mechanisms Woelk Human Rights 7

8 6. Protection of HRs at international level United Nations (192) Council of Europe (47) European Union (27) Charter of the UN (1945) UN Declaration of Human Rights (10 Dec. 1948) International Covenant on Civil and Political Rights (1966) (ICCPR) International Covenant on Cultural, Social and Economic Rights (1966) (ICCSER) International Court of Justice (ICJ- The Hague) International Criminal Court (ICC The Hague) HR Committee HR Council High Commissioner for Human Rights (Geneva) European Convention on Human Rights (1950) Framework Conv. for the Protection of National Minorities (1995) European Social Charter (1961) European Court of Human Rights (ECHR Strasbourg) Commissioner for Human Rights (Strasbourg) EU Charter of Fundamental Rights of the European Union (2000) Art. 12 and 13 ECT Equality Directives (2000) European Court of Justice (ECJ Luxemburg) Fundamental Rights Agency (Vienna)

9 7. What is protected? Which rights? Individual, subjective rights Against public authorities Drittwirkung: indirect effects in private law and relations between privates through the interpretation of general clauses and open concepts ( good faith, moral ) Objective dimension Fundaments and values characterizing the whole legal system Civil and political rights Physical and moral integrity; freedom of beliefs Procedural guarantees Participation Social, economic and cultural rights Access to substantial social and economic guarantees (problems: resources and capacities) Collective rights Self-determination of peoples Right to peace Healthy environment Woelk Human Rights 9

10 8. Limits to the exercise of HRs Interference with HRs Scope of application may be limited: a) Restrictions by law b) Inherent constitutional limits Limits to these limits? Justification! Proportionality test: is the limitation a) appropriate (for reaching the objective?) b) necessary (no softer means possible?) c) reasonable (sustainible? Balancing operation) Guarantee of an essential core/nucleus! Woelk Human Rights 10