Abstract
After the formulation and subsequent acceptance of the doctrine of the Responsibility to Protect during the past decade as a framework for rethinking humanitarian intervention and as a UN-recognized and supported updating of the task mandated by the UN Charter – to “maintain international peace and security” – a reflection is also due on the legal sources for the culture of human rights, namely the 1948 Universal Declaration of Human Rights and the subsequent 1966 Covenants on Civil and Political and on Cultural and Social Rights.
The paper discusses the new misalignment that has come into being, in the post-1989 world, between the original structure of the Declaration (a comprehensive and relatively unstructured list of rights), functional to the purpose of stimulating the growth of a “culture of human rights” world-wide, and the new function, attributed to legal sources on human rights, to define the limits of state sovereignty when it comes to human rights.
The idea of a new Charter of Fundamental Human Rights, more in line with this new function, is defended against the commonly heard objections that it would undermine the authoritativeness of the 1948 Declaration, it would delegitimize the struggle of those who fight for full democracy and not just human rights within authoritarian regimes, and against the reservation that under the heading of fundamental rights a Western notion of the individual would be imposed world-wide. Finally, a defense of the proposal for the new Charter is offered, in terms of two notions of humanity, a moral and a political one, and what can be presupposed as necessary in order for humanity to flourish.
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Notes
- 1.
See ICISS (2001) for the groundbreaking original document establishing the “Responsibility to Protect” – doctrine. See also Evans and Sahnoun (2002), World Summit (2005) and Annan (2005) for initial discussions and reception within UN policy. For a more recent reception of the doctrine within the UN and further elaboration on it, see Ban Ki-Moon (2009).
- 2.
The areas include the rights of the individual (Articles 3–11), civil and political rights (Articles 12–17), the rights of religious freedom, freedom of thought, expression and association (Articles 18–21) and social, economic and cultural rights (Articles 22–27).
- 3.
- 4.
- 5.
These States were Afghanistan, Argentina, Australia, Belgium, Bolivia, Brazil, Burma, Canada, Chile, China, Colombia, Costa Rica, Cuba, Denmark, the Dominican Republic, Ecuador, Egypt, El Salvador, Ethiopia, France, Greece, Guatemala, Haiti, Iceland, India, Iran, Iraq, Lebanon, Liberia, Luxembourg, Mexico, Netherlands, New Zealand, Nicaragua, Norway, Pakistan, Panama, Paraguay, Peru, Philippines, Thailand, Sweden, Syria, Turkey, United Kingdom, United States, Uruguay and Venezuela.
- 6.
U.S. reservation on the International Covenant on Civil and Political Rights can be found in the Congressional Record, 138, S4781-01 (daily ed., April 2, 1992). For a well grounded argument concerning the inconsistency of this proviso with the general spirit of the covenant, see Henkin (1995). See also Paust (1996).
- 7.
On the notion of “global challenges,” see Cerutti (2009).
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Ferrara, A. (2012). The Idea of a Charter of Fundamental Human Rights. In: Corradetti, C. (eds) Philosophical Dimensions of Human Rights. Springer, Dordrecht. https://doi.org/10.1007/978-94-007-2376-4_9
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