[Part II was published on January 12, 2003.]
3. The Character and Significance of People's Rights
The advent of the concept of people’s rights, marking a break from the form of traditional human rights, can be traced back to a fundamental distinguishing characteristic—the different subject for the rights concerned. The subjects of people’s rights are the people collectively of a state or region, while traditional human rights concerned with the rights of individuals. Even second-generation human rights, social rights arising from guarantees for disadvantaged groups—such as children’s rights, women’s rights, the rights of the elderly, the rights of physically or mentally handicapped, alien and refugee’s rights, detainee’s rights, and so forth—are directed not at specific groups per se, but rather at individuals within these groups. Therefore, people’s rights as a form of “group rights” are concerned with rights that are jointly exercised by a group, not with rights of individuals who must have a specific group affiliation. The latter are termed by some as “collective human rights”. However, the two are in fact extremely different. Traditional human rights include so-called collective rights, such as the rights of ethnic minorities, embodying both individual and group rights. When exercised as group rights, the ethnic group as a whole is taken as subject of the rights, and promulgated in the same manner as people’s rights. The Article 27 of the United Nations’ International Covenant on Civil and Political Rights has relevant special provisions, and in December 1992, the United Nations proceeded to issue the Declaration on the Rights of Persons Belonging to National or Ethnic, Religious, and Linguistic Minorities. In addition, in recent years the United Nations has begun to pay special attention to issues related to indigenous peoples. Indigenous people’s rights likewise possess characteristics of both rights for individuals and for groups. The Working Group on Indigenous Populations, an auxiliary of the United Nations’ Sub-Commission on the Promotion and Protection of Human Rights, was established in 1982, and its proposed draft declaration on the rights of indigenous peoples is under discussion in the United Nations. However, whether ethnic minorities or indigenous peoples are concerned, the mechanisms for guaranteeing their rights can be handled by constitutional law, while people’s rights lie in the domain of international human rights law, which transcend national constitutions.
The Universal Declaration of the Rights of Peoples is not a formal international legal document, but it represents the ideals of the international civil society regarding the people’s rights system. The Universal Declaration of the Rights of Peoples was built on an anti-imperialist perspective, sternly criticizing economic, industrial, and military forms of neo-colonialism. Not only does it oppose neo-imperialism, but at the same time, antagonistic to authoritarian regimes including those in socialist regions. The origins of the Lelio Basso International Foundation for the Rights and the Liberation of Peoples, the sponsor of the Universal Declaration of the Rights of Peoples, could in fact traced back to Russell Tribunal. Russell Tribunal was established by international civil society in 1966 for trial on charge of war and governmental criminal acts. The convicted in the second Russell Tribunal were authoritarian regimes, and we can thereby posit that the spirit of the Universal Declaration of the Rights of Peoples is one of strong empathy for popular democracy, and opposition to confusion between people and anti-democratic states. For them, authoritarian or dictatorial regimes claimed to be popular democracies have no rights to represent their people, moreover, they were seen as opposing to their own people. Only countries truly exercise democratic principles can invoke the name of the people—in other words, an assertion of people’s rights must have its meaning of self-government, including as a minimum the right of a people to oppose its government. Such people’s rights, encompassing the right of resistance—such as the right to self-determination, and the right to have a democratic government—lie beyond the level of national constitutions in nature. On the level of national constitutions, such people’s rights are collectively equal to the popular sovereignty. But in a fundamental sense, from the perspective of the international human rights laws, these rights are international rights that the international community is responsible to recognize and fulfill all of them.
The Universal Declaration of the Rights of Peoples includes eighteen articles defining the nature of people’s rights, the right to existence, the right to the respect of its national and cultural identity, the right to peace, the right to self-determination, the right to have a democratic government, permanent sovereignty over natural wealth and resources, the right to common heritage of mankind, the right to fair international trade, the right to choose economic and social system, language and culture rights; the right to artistic, historical and cultural wealth, the right to reject alien culture, and environmental protection rights. These can be classified into five categories:
1.A people’s rights to existence (the right to existence, the right to the respect of its national and cultural identity, the right to peace);
2.Political rights of a people (the right to self-determination, the right to have a democratic government);
3.Economic rights of a people (permanent sovereignty over natural wealth and resources, the right to common heritage of mankind, the right to fair international trade, the right to choose economic and social system);
4.Cultural rights of a people (language and culture rights; the right to artistic, historical and cultural wealth, the right to reject alien culture);
5. The environmental protection rights of a people.
Although the African Charter was influenced by the concept of peoples’ rights and became the first, and still the only, international human rights legal document to focus exclusively on peoples’ rights issues, in a specific sense. Due to the unique political, economic, social, and cultural development, enormous discrepancy in Africa has developed between the theory and practice of Africa's peoples’ rights. The Universal Declaration of the Rights of Peoples is full of admiration and enthusiasm for popular democracy, and considers people’s rights to supplement the system of individual rights. However, the peoples’ rights encompassed by the African Charter are at their base derived from a group-oriented conception of “African values and morals”—for example, when a draft of the Charter was being produced, representatives from a number of countries pointed that in Africa individuals cannot be considered separately from their group, while individual rights can only be interpreted and realized in the context of group’s rights. These countries were especially eager to promote peoples’ rights, distinguishing them from individual rights and regulating them separately. Another example was the following text, which was added to the preamble of the preliminary draft by the Council of Ministers of Justice of the Organization of African Unity, which was also responsible for producing the draft itself: “Taking into consideration the virtue of their historical tradition and the values of African civilization which should inspire and characterize their reflection on the concept of human and peoples’ rights”. However, we could be virtually certain that the faith to the peoples’ rights described in the African Charter were fundamentally derived from a value system based on group-oriented thinking, and this can be traced back to the pre-colonial system of tribe democracy. For the different value system from West, this is why the African Charter provides human rights and peoples’ rights separately. Such approach demonstrated that the African Charter was ambivalent on the question of whether traditional concepts of human rights encompass peoples’ rights.
The African Charter defines the peoples’ rights as:
1.Equality rights (Article 19);
2.Rights to existence, rights to self-determination and right to receive foreign aid (Article 20);
3.Permanent sovereignty over natural wealth and resources (Article 21);
4.Economic, social, and cultural development rights (Article 22);
5.International peace and security rights (Article 23);
6.Environmental rights (Article 24).
If the whole of international human rights legal documents were considered, British scholar James Crawford believes that the United Nations resolutions that serve as a statement of people’s rights are not international treaties, and have not directly created a binding obligation for all states in the world. As a category of rights, People’s rights in fact have not achieved recognition in at least one international human rights instrument in treaty form. Therefore, legal sources must be sought for by looking back to the texts of the United Nations Charter and International Bill of Human Rights, as well as other international agreements. Crawford added the right of group to exist to P. Sieghart’s classification scheme, and proposed at least seven classes of people’s rights:
1.Rights to existence;
2.Self-determination and equality of rights;
3.Rights relating to international peace and security;
4.Permanent sovereignty over natural resources;
5.Rights in relation to development;
6.Rights in relation to the environmental;
7.Rights of minorities.
The above-mentioned classes can in turn be divided into two categories. The first is related to the existence and cultural or political continuation of groups, including rights to self-determination, the rights of minorities, and the rights of groups to existence. Their history of development is relatively long. The second category has only emerged in post-war period, includes permanent sovereignty over natural resources, rights to development, to the environment and to international peace and security.
The post-war history of people’s rights was initiated by the principle of equal rights and self-determination of peoples described in the Paragraph 2 of the Article 1 of the United Nations Charter. The all peoples’ right of self-determination set in the first article of the two International Covenants of Human Rights provided the strongest basis for recognition of people’s rights. The right of self-determination is purely oriented toward groups, while people’s rights, which are distinguishable from state rights and governmental rights, are a pre-state conception. The right of self-determination is a class of rights that predated the emergence of the notion of people’s rights. The first articles of the two International Covenants of Human Rights further link self-determination rights to economic, social, and cultural development, and involve in permanent sovereignty over natural wealth and resources, and rights to existence. The subjects of these rights explicitly includes peoples of Non-Self-Governing and Trust Territories. Crawford believes that the subjects of the rights to existence should include ”a national, ethnical, racial or religious group” that do not qualify for self-determination rights. It is a special case of the subjects of people’s right. Because the Article 4 of the Convention on the Prevention and Punishment of the Crime of Genocide of 1948, regarding the parties who may be held accountable for genocide, includes “constitutionally responsible rulers, public officials or private individuals”. Constitutionally responsible rulers and public officials who are a part of authority representing the people in exercising the group will.
Rights of minorities are also a class of rights recognized before the World War II, and were included in the Article 27 of the International Covenant on Civil and Political Rights. Rights of minorities possess the character of both individual and collective rights. However, the present article does not consider minorities to be appropriate subjects for general people’s rights as “a national, ethnical, racial or religious group” mentioned above, unless they become a people who are integral, identifiable, and even independent. As a part of minorities, indigenous peoples’ issues of being subject of peoples’ rights is identical with minorities’. The concept of minorities is relative to the majorities. Once a statistical or territorial change occurs, a minority may become the majority or “the people”. From this point, the group becomes an appropriate subject for general people’s rights.
Of the people’s rights that have been promulgated in the post-war period, rights to international peace and security are treated in the Article 23 of the African Charter: “All peoples shall have the right to national and international peace and security. The principles of solidarity and friendly relations implicitly affirmed by the Charter of the United Nations and reaffirmed by that of the Organization of African Unity shall govern relations between States”. The African Charter treated peoples and states as identical, and linked this treatment to the Paragraph 3 of the Article 2 of the United Nations Charter: “All Members should settle their international disputes by peaceful means in such a manner that international peace and security, and justice, are not endangered”.
Permanent sovereignty over natural wealth and resources, and rights to development are both extensions of the rights to self-determination. Rights to development are explicitly described in the text of the Article 22 of the African Charter as follows: “All peoples shall have the right to their economic, social, and cultural development with due regard to their freedom and identity and in the equal enjoyment of the common heritage of mankind.” As for rights to the environment, they are treated only in the Article 24 of the African Charter: “All peoples shall have the right to a general satisfactory environment favorable to their development”. However, there is no global pact to serve as the basis for establishing peoples’ rights to the environment.
The category of people’s rights is still in the midst of constant development. As seen in the present article, although the United Nations has not promoted for people’s rights anything equivalent to the Universal Declaration of Human Rights, one cannot thereby deny that the various resolutions of the United Nations possess the status of legal sources in the area of peoples’ human rights laws, but only that their effect is relatively low. Besides, the regionally oriented international charter, the African Charter, has already enumerated and acknowledged them. The African Charter defines human rights and peoples’ rights separately, while the Universal Declaration of the Rights of Peoples defines peoples’ rights only. In fact, this points out a possible solution for disentangling people’s rights from traditional human rights—define people’s rights, which transcend national constitutions, separately from human rights, which are under the aegis of national constitutional articles, distinguishing and clarifying their nature.
However people’s rights for the most part are only promulgated through legally non-binding declarations or resolutions of international organizations. This fact tells us that they do not yet possess universality. Current international channels and mechanisms for protecting people’s human rights are not comprehensive enough to guarantee their actual implementation. Therefore, the current state of development of people’s rights has not yet gone beyond the stage of calls for international justice and humanitarian treatment.