SUNG NAK IN
SEOUL NATIONAL UNIVERSITY, PROFESSOR EMERITUS(FORMER PRESIDENT 2014-2018)
I.Introduction
Mankind has been striving to secure the freedom and rights of human beings throughout history. In ancient and medieval times, not all men were treated the same. Since states were dominated by absolute monarchs, people were mere subjects of autocrats. People of colonized nations were treated as commodities during the slave trades around Africa.
As modern civil society was built, people’s struggle for freedom and rights opened a new horizon of human rights. People challenged the authority of the absolute monarch. Magna Carta of 1215 not only made England the forefront of democracy, but also opened a new chapter of human rights in history. Furthermore, the American Revolution and French Revolution broke new ground in human freedom and rights.
The cry of "Give me liberty, or give me death"showed the will for freedom of mankind and resistance to the state power from the late 18th to 19thCenturies. However, it was impossible to ensure human dignity and value with only classic freedoms. In the 20thcentury, people sought to enhance the values of the community through “the right to a life worth of human beings”, so called social rights.
Recently, the protection of human rights and freedom has been internationalized. The Universal Declaration of Human Rightsof 1948 was the first step of globalizationof human rights. The international protection of human rights has been advanced ever since.
II. Development of Human Rights and Fundamental Rights in Modern States
1. Development of freedom and rights in modern states
(i) Democracy is advanced when the freedom and rights of individuals are further protected. Historically, individuals who were treated as slaves or subjects became free people with a new constitution. In England, the Magna Carta signed in 1215 served as a foundation in guaranteeing the freedom of individuals. The Petition of Right passed in 1628 recognized the principles of no imprisonment without cause, no taxation without the consent of Parliament. The Habeas Corpus Act of 1679 defined the writ of habeas corpus thus strengthening procedural rights. Finally, the Bill of Rights which outlined the right to petition, freedom of the press, and criminal procedures, was signed into law in 1689. The various document provided the institutional framework in protecting the freedom and rights of the English people.
(ii) The pinnacle of the effort to protect the freedom and rights of the individuals occurred during the American revolution and French revolution in the late 18th century. Both revolutions were based on the theories of modern natural law, social contract and the enlightenment. During the revolutions, how to draft a constitution and a declaration of human rights were discussed. Through the adoption of the documents, the freedom and rights of individuals were protected institutionally.
In 1776, the United States declared themselves as an independent nation. The Virginia Declaration of Rights, drafted in 1776, enumerated the inherent rights of men and established separation of governmental powers to protect the freedom of individuals. The Constitution of the United States signed on 1787 guaranteed basic rights to its citizens. In 1791, ten amendments which are known as the Bill of Rights were added to the Constitution. The fundamental rights of individuals were directly protected by the amendments.
(iii) The 1789 French Revolution uprooted the institutions of the absolute monarch. Ordinary people resisted against the ruling class. The Declaration of the Rights of Man and of the Citizen(La Déclaration des droits de l’homme et du citoyen) was passed in 1789 and other constitutional documents were adopted throughout the revolutionary stage. In late 19th century there was a classic exchange between Georg Jellinek of Germany and Emile Boutmy of France regarding the sources of the 1789 Declaration. Jellinek argued that much of the Declaration was imported from the various bill of rights adopted by the American states such as the 1776 Virginia Declaration of Rights. However, Boutmy claimed that Rousseau’s philosophy inspired many of the articles of the 1789 Declaration.
Despite the fact that the American revolution occurred before the French revolution, the French revolution was not merely a byproduct of the American revolution. Likewise, the Declaration of 1789 was inspired by the enlightenment movement that dominated Western Europe and America. It should be noted that both constitutional documents of the United States and France reflect democratic ideas and principles that were already codified in England. The 1789 Declaration in itself is valuable as it protects the freedom and rights of the French citizens at the time.
Liberty, Equality, Fraternity was one of the mottos used during the French Revolution. These are fundamental values that form the basis in protecting the freedom and rights of the people. That is why the motto is enshrined in Article 2 of the current French Constitution. While liberty and equality are traditional principles, new lightshavebeen shed on fraternity. The ideal of fraternity was not fully realized until the Fourth Republic. The preamble of the Constitution of the Fourth Republic sets forth social rights. Social rights and solidarity rights can be interpreted as the modern day formulation of fraternity. Through the preamble of the Constitution of the Fifth Republic which recalls the 1789 Declaration, the Declaration has been recognized as a constitutional document. Such incorporation means that the protection of individual’s freedom and rights, and separation of powers are still the pillars of the modern day constitution.
The 1789 Declaration was the model for the Belgian Constitution approved in 1831, and also inspired the Frankfurt Constitution of 1849 and the Prussian Constitution of 1850.
(iv) As Germany established a constitutional state much later than other Western European states, protection of human rights by a constitutional document occurred at a later date. The 1849 Frankfurt Constitution and the 1850 Prussian Constitution were not the byproducts of a political revolution initiated by the people. Likewise, the 1871 Constitution of the German Empire was a nominal constitution at its best.
The Weimar Constitution of 1919 is the first constitution that constitutionally protected modern day human rights. The 1949 Basic Law for the Federal Republic of Germany declared that human dignity is inviolable. The elevation of human dignity is a reflection of the tragic past, in which human dignity counted for nothing under Nazi rule.
(v) The concept of freedom and rights spread throughout the Korean peninsula in the late 19th century. However due to the illegal annexation by Japan in 1910, Korea’s sovereignty was stripped away and the civil rights of the Korean people were not protected. The Korean people resisted against Japanese colonialism. In 1919, a unified provisional government was set up in Shanghai, China. The constitution of the provisional government underlined that the Korean people enjoyed equal protection, civil rights, and had to bear certain obligations. After retaining independence in 1945, Republic of Korea promulgated the Founding Constitution in 1948. The 1948 Constitution incorporated fundamental rights that were widely established in Western nations.
2. Human Rights and Fundamental Rights
(1) Human Rights and Citizens’Rights [The Notions]
With regard to ensuring human freedom and rights, several terms, such as “human rights”(droits de l’homme, Menschenrechte), “freedom and rights”,“fundamental rights”(droits fondamentaux, Grundrechte), are used to express the notion.
The notion of “human rights”is based on the theories of the Natural Law and the Social Contract. The theory of natural law endows human beings rights from the moment of birth. The “Declaration of Rights of the Man”in the French “Declaration of therights of theMan and of the Citizen 1789”transforms a principle of natural law into the positive law. The Declaration solemnlydeclares“the natural, unalienable, and sacred rights of man,”(preamble) and proclaims that “men are born and remain free and equal in rights.”(Article 1) In addition, the term “naturalrights”is used in Article 2. According to the Virginia Declaration of Rights, all men have “inherent rights.”Since after the emergence of modern state nation, Constitutions and Declarations of human rights express this philosophy of God-given or natural rights.
On the other hand, the term “Fundamental Rights”appears in Weimar Constitution of 1919 and the Basic Law for the Federal Republic of Germanyof 1949. The term is used not only in Germany but also widely in the world in these days. In German history, “fundamental rights”is developed to enable rights to restrict all governmental powers. However, the German “fundamental rights”is not categorically different from French “natural rights.”Both terms have something in common regarding the scope and limit of rights.
(2) Distinction and Fusion of Human Rights and Fundamental Rights
“TheRights of theCitizen“in the French “Declaration of theRights of theMan and of the Citizen”signifies rights of people or citizens of a nation rather than of men. In this way, we can draw a line between Human Rights and Fundamental Rights in common usage. Human rights as natural right is widely discussed not only in law but also in philosophy and sociology. On the contrary, fundamental rights, incorporatedin positive Constitutional law systems, covers freedom and rights of people with constitutionalvalues. For this reason, the term, fundamental rights, in German Basic Law and Korean constitutional study, is similar to the French “libertés publiques“(civil liberties) which is taught as a separate subject. Meanwhile, the scope of French human rights is expanded as the subject embraces human rights, fundamental rights, “basic liberties”, and “fundamental freedom”recently.
Although the terms fundamental rights and human rights are often confused, fundamental rights includes both human rights and civil liberties. In particular, fundamental rights contains social rights(right to live), rights to ensure rights(right to claim) and political rights that are hardly covered in human rights.
III. Protection of Fundamental Rights in 20th century Social Welfare State
1. The will to achieve freedom
Ever since the political revolutions in the 18th century, steps have been taken to protect the freedom and rights of individuals. Nations and individuals successfully dealt with reactionary efforts to restrict such protection.
Preserving the physical and mental integrity of individuals is the starting point in discussing individual’s freedom and rights. Physical and mental rights are natural, inalienable rights and despite the fact that the rights were proposed in the 18th century, they are still valid in today’s context. The rights are the pillars of individual freedom, human dignity, and constitutional order.
2. The advent of social rights in social welfare state
With the industrial revolution taking place, the need for social rights arose. Social rights were not thought of at the 18th century, but people perceived social rights as fundamental when the capitalist economic system confronted a crisis.
Social rights can be interpreted as the constitution incorporating socialist ideals. Social rights came to fruition at a time when the crisis of the capitalist economic system deepened and imperialism dominated the political sphere. As monopolistic capital colluded with political power, social inequalities worsened and social unrest became rampant. Social rights focused on how to realize substantial equality. The text of the 1919 Weimar Constitution reflected the social rights. Social rights start from the assumption that the state should intervene by implementing policies to address the problem of individuals suffering from economic hardships. Social rights are construed in a way that benefits the unprivileged. Social rights have been accepted as a fundamental principle in constitutional states. Social rights are reflected in the welfare state, a concept often represented by the phrase ‘from the cradle to the grave’, and the German principle of the social state(Sozialstaatsprinzip).
Social rights intend to protect the property-less class, a vast portion of the population that suffered from the advancement of the industrial society. The burden of paying for the policies to benefit the poor is placed on the bourgeois class. Social rights are often accompanied by restriction of the freedom and property rights of the bourgeois class. There is always the prospect of a conflict between social rights and traditional civil rights.
We need to understand social rights in a different fashion as new types of social rights such as environmental rights emerge. In interpreting social rights, the conventional wisdom was to presume the sacrifice of the privileged. Yet, we have to overcome the dichotomy between the haves and have nots in construing social rights. We have to transform the nature and system of social rights. It has become much more difficult to determine the precise nature and properties of social rights.
3. The emergence of third generation human rights
The third generation of human rights set forth by UNESCO emphasizes solidarity rights. Whereas the first generation and second generation of human rights dealt with civil·political rights, economic·social·cultural rights respectively, third generation human rights include the right to development, right to peace, right to communicate, right to health, right to healthy environment, and the right to receive humanitarian assistance.
The articles of Title IV of the Charter of Fundamental Rights of the European Union list specific solidarity rights. The contents of the articles are the following: Article 27 Workers' right to information and consultation within the undertaking, Article 28 Right of collective bargaining and action, Article 29 Right of access to placement services, Article 30 Protection in the event of unjustified dismissal, Article 31 Fair and just working conditions, Article 32 Prohibition of child labour and protection of young people at work, Article 33 Family and professional life, Article 34 Social security and social assistance, Article 35 Health care, Article 36 Access to services of general economic interest, Article 37 Environmental protection, Article 38 Consumer protection.
With the progression of the information society, new rights such as the right to privacy, right to know has been recognized as a constitutional right.
IV. International Protection of Human Rights
1. Charter of the United Nations and the Universal Declaration of Human Rights
In order for an effective protection of fundamental rights, a system of international protection as well as domestic protection system is necessary. The importance of international protection of human rights has been stressed, and specific measures have been rapidly adopted. After World War I, nations began to discuss how to protect human rights at the international level with a new conception of individual’s freedom and rights. Such internationalization of human rights became institutionalized after World War II.
The Charter of the United Nations which was signed on June 26, 1945 is an important document symbolizing the internationalization of human rights. The Charter not only stipulates fundamental human rights, dignity and worth of the human person, equal rights, but also the advancement of economic and social rights. Also, the United Nations General Assembly on December 10, 1948 adopted the Universal Declaration of Human Rights. The Declaration consists of a preamble and 30 articles. The preamble is as follows:
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,
Whereas disregard and contempt for human rights have resulted in barbarous acts which have outraged the conscience of mankind, and the advent of a world in which human beings shall enjoy freedom of speech and belief and freedom from fear and want has been proclaimed as the highest aspiration of the common people,
Whereas it is essential, if man is not to be compelled to have recourse, as a last resort, to rebellion against tyranny and oppression, that human rights should be protected by the rule of law,
Whereas it is essential to promote the development of friendly relations between nations,
Whereas the peoples of the United Nations have in the Charter reaffirmed their faith in fundamental human rights, in the dignity and worth of the human person and in the equal rights of men and women and have determined to promote social progress and better standards of life in larger freedom,
Whereas Member States have pledged themselves to achieve, in co-operation with the United Nations, the promotion of universal respect for and observance of human rights and fundamental freedoms,
Whereas a common understanding of these rights and freedoms is of the greatest importance for the full realization of this pledge,
Now, Therefore
THE GENERAL ASSEMBLY proclaims
THIS UNIVERSAL DECLARATION OF HUMAN RIGHTS as a common standard of achievement for all peoples and all nations, to the end that every individual and every organ of society, keeping this Declaration constantly in mind, shall strive by teaching and education to promote respect for these rights and freedoms and by progressive measures, national and international, to secure their universal and effective recognition and observance, both among the peoples of Member States themselves and among the peoples of territories under their jurisdiction.
The Declaration guarantees the dignity of the human person, equal protection, civil liberties. social rights, right to trial, right to take part in government, and prescribes duties to the community. Furthermore, new types of fundamental rights such as the right to seek and to enjoy in other countries asylum from persecution, the right to freedom of opinion and the right to receive information were established.
2. Adoption of regional human rights system
The roots of the regional human rights system is intertwined with the founding of the Council of Europe in 1949. The European Convention for the Protection of Human Rights and Fundamental Freedoms, which was signed by members of the Council of Europe on November 4, 1950 and entered into force on September 3, 1953 is the first regional human rights mechanism. The Convention gave effect to certain rights stated in the Universal Declaration of Human Rights. One notable aspect is that the Convention set up a European Court of Human Rights to ensure the observance of the engagements underscored in the Convention. Social rights were strengthened with the adoption of the 1961 European Social Charter, and the 1988 Additional Protocol which extended the social and economic rights guaranteed by the 1961 Charter. In 2000, the Charter of Fundamental Rights of the European Union was adopted.
Europe’s human rights mechanism led to the implementation of such human rights instruments in other regions. The Inter-American Council of Jurists prepared a draft of a Convention in 1954 and the American Convention on Human Rights was adopted on November 1969, and an Additional Protocol was signed in 1988.
An African Human Rights Charter was suggested as early as 1961, and The African Charter on Human and Peoples' Rights entered into force in 1986. The Universal Islamic Declaration of Human Rights was adopted in 1981 and The Cairo Declaration on Human Rights in Islam was adopted in August 5, 1990. The Convention on Human Rights and Fundamental Freedoms of the Commonwealth of Independent States was adopted in May 26, 1995.
Discussions to adopt a Southeast Asia-Pacific regional human rights mechanism started in 1965 at Bangkok, and are still going on.
3. International Covenant on Human Rights
The UN General Assembly adopted the International Covenant on Human Rights on December 16, 1966 to reinforce the 1948 Universal Declaration of Human Rights.
The International Covenant consists of two covenants - The International Covenant on Economic, Social and Cultural Rights (ICESCR), and the International Covenant on Civil and Political Rights (ICCPR) - and the Optional Protocol to the International Covenant on Civil and Political Rights entered into force in 1977.
The International Covenant on Human Rights is unique in that it specifies the contents that were prescribed in the 1948 Universal Declaration. The following contents only appear in the International Covenant of Human Rights: the right to strike, ensuring the person whose rights or freedoms were violated an a right to effective remedy, ensuring the victim of unlawful arrest or detention a right to compensation, prohibiting imprisonment merely on the ground of inability to fulfil a contractual obligation, and protection of minority groups. Yet, the right to a nationality, and the right to seek and to enjoy in other countries asylum from persecution were laid out in the 1948 Universal Declaration but not covered in the International Covenant on Human Rights.
Another important aspect of the International Covenant on Human Rights is that there are detailed articles providing the obligation of signatory states. The 1948 Universal Declaration lacks such provisions. Thus, the Covenant has the potential to be forcibly enforced against signatory nations after ratification. Numerous conventions such as the UN Convention on the Rights of the Child have been signed after the International Covenant.
4. UN’s Third Generation Human Rights
The so-called third generation human rights, social solidarity rights have been discussed in the UN General Assembly. The UN General Assembly adopted the Declaration on Social Progress and Development in 1969, the Declaration on the Right to Development in 1986. The Rio Declaration on Environment and Development was adopted in 1992 at the United Nations Conference on Environment and Development.
Ⅴ. Conclusion
1. Longing for the adoption of an Asian Human Rights Convention
The history of protecting human rights goes hand in hand with the progress of mankind. To ensure the dignity of individuals, human rights need to be protected. Protection of human rights is an international matter and not confined to national borders. Internationalization of human rights is inevitable and various international conventions to promote human rights have contributed to the realization of guaranteeing human rights for all mankind.
Regional instruments to further advance human rights have been contemplated in Europe, Africa, and the Middle East. Unfortunately, Asia has not adopted a regional human rights convention. I am confident that Asian values can be consolidated with the ratification of an Asian Human Rights Convention. Such conventions can contribute to resolving long lasting conflicts that have plagued the Asian region, and forming an Asian community based on human rights and peace.
A human rights convention for the East Asian region is a reachable task. There is a consensus among nations on what constitutes human rights. Most UN member states have accepted the crux of the 1948 Universal Declaration and the 1966 International Covenant on Human Rights.
In addition to the two documents, the 2000 Charter of Fundamental Rights of the European Union can also be referred to in drafting the Asian Human Rights Convention. Some articles can be amended to reflect the special features of the East Asian Community.
2. The need to protect human rights at a supranational level in the Information Society
We need to shed new light on human rights in this age of the Information Society. As the Internet transcends national borders, conventional human rights jurisprudence needs to be modified. Disorders such as monopoly of information, information divide, invasion of privacy by big data technology has become widespread in many nations. International coordination in the form of new human rights conventions is desperately required to address the problems.
The Fourth Industrial Revolution has resulted in the advancement of information society. As information technology is getting more sophisticated, challenges to the dignity of human beings have risen. The privacy of individuals is no longer being protected. It is not an exaggeration to say that modern society can be characterized as lacking human values. Individuals are subject to constant surveillance by CCTVs. The appropriate function of law and order in today’s surveillance society needs to be deliberated. We cannot stand by and watch Big Brother invading the rights of individuals.
3. Building walls to confront constant dangers
While the Internet has rendered physical barriers between nations meaningless, international conflicts and terrorist threats have also led to nations strengthening border control. The September 11, 2001 attacks against the United States significantly changed the course of the information society. Ever since the terrorist attacks, nations have deployed various technologies to deter dangerous suspects. Personal identification based on biometric technology has the risk of infringing human dignity. Individuals have also been relegated as mere objects of observation in this process. An international dialogue to mitigate the possible human rights violations should be initiated.
With information produced and distributed across nations, regulations to deal with information need to be devised at a supranational level. Due to the transcendent nature of modern age information, one nation cannot come up with a regulatory system that can deal with numerous related problems. International cooperation is essential. The cooperation mechanism will resemble the establishment of the international human rights system. Nations must work together to collectively address terrorism, and crimes against children.
