„Nowe prawa człowieka". Perspektywy i zagrożenia
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Date
1988
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Wydział Prawa i Administracji UAM
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„New human rights". Perspectives and threats
Abstract
The purpose of the article is a comprehensive critique of the actual process
of enlarging the catalogue of international human rights by including the category
of so-called "new human rights". In consideration of the size of the article
and abundant literature concerned with descriptions of the "new human rights"
the author, in introductory remarks, confines himself to the presentation of an
outline of the theory of the "new human rights" in the version elaborated by one
of the architects of that trend, K. Vasak. The description of that theory is a starting
point for, the main part of the article focused on threats the conception of
the "new human rights" poses for the existing catalogue of human rights. The
author starts his analysis by showing substantial and methodological mistakes
which are present in a vision of the history of human rights used by the propagators
of the conception of the "new human rights" as a basis for shaping normative
postulates. Next, legal character of the "new human rights" is analysed from
the point of view of the theory of sources of international public law and accepted
rules of interpretation. The author concludes that one may only talk about some
postulates "de lege ferenda" with respect to defining legal character of the "new
rights", and that placing those rights on a par with the existing catalogue of human rights is wrong and may lead to normative inflation. Proposals of the
"new human rights" are of collective character — a people is defined as their
subject. The author criticizes the conception of a people being the subject of
human rights and shows the danger of using that construct by States for the
purposes of limiting the existing human rights. Analysing normative documents
concerning the "new rights" he points out to the fact that they have a character
of political manifestos, abstract and devoid of any mechanisms of control, rather
than a character of legal acts. In the author's opinion, it drastically undermines
their practical usefulness for realizing social purposes they are supposed to achieve.
The author also analyses the fact that discussions on the "new rights" are limited
exclusively to axiological or normative planes, with no account of more thorough
analyses of social mechanisms and without the participation of social scientists
representing disciplines other than law and philosophy. The analysis of the "new
rights" is completed by considerations concerning the relation between those
rights and the existing catalogue of human rights. The author criticizes three
types of argumentation: "new rights" as the instrument of realization of the existing
rights; "new rights" as a synthesis of the hitherto existing catalogue of human
rights; "new rights" as a precondition of the full realization of other human rights.
In concluding remarks the author states that the conception of the "new human
rights" points out to the need of including new social problems in the theory and
praxis of protection of international human rights. However, the proposals of
"new rights" not only do not solve those problems, but they also present a threat
for the existing international catalogue of human rights.
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Citation
Ruch Prawniczy, Ekonomiczny i Socjologiczny 50, 1988, z. 2, s. 57-75