„Nowe prawa człowieka". Perspektywy i zagrożenia

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Wydział Prawa i Administracji UAM

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„New human rights". Perspectives and threats


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.



Digitalizacja i deponowanie archiwalnych zeszytów RPEiS sfinansowane przez MNiSW w ramach realizacji umowy nr 541/P-DUN/2016



Ruch Prawniczy, Ekonomiczny i Socjologiczny 50, 1988, z. 2, s. 57-75



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Uniwersytet im. Adama Mickiewicza w Poznaniu
Biblioteka Uniwersytetu im. Adama Mickiewicza w Poznaniu
Ministerstwo Nauki i Szkolnictwa Wyższego