The global and the local in human rights: The case of FR Yugoslavia
The Case of the FR of Yugoslavia
On this day, fifty years ago, the United Nations General Assembly adopted the Universal Declaration on Human Rights. That document could be regarded as the most important one in the 20th century, and could be compared to the Magna Charta, French Declaration on human rights, and American Declaration of Independence, is the turning point in the quest for freedom and human dignity. The United Nations General Assembly adopted the Universal Declaration in its 183rd session, on 10 December 1948. In the final vote, the outline of the Declaration was not adopted unanimously – 48 member states voted for the Declaration, while 8 delegations abstained, including the then Federal People’s Republicof Yagoslavia.1 No delegation voted against this international docu-ment that announced “the common standard for achievement for all the peoples and all the nations”. This lack of consensus during the final vote on the Declaration indicated future conflicts related to the 1999 issue of limits of the universal validity of human rights, which have in the meantime become the standard for the evaluation of rights in general.
The modern concept of human rights originated in the context of monstrous abuses during the Second world war. A dramatic experience of Nazism (as well as Stalinism), forced the global Community to look for the international instruments in defence of human life and respect for human rights. That circumstance determined the basic direction and the main current of constituting human rights. The emphasis in the Declaration is on civil and political rights, despite the fact that it was the first international legal document which included some additional, social and economic rights. Up to this day, misbalance in the normative and factual priority of human rights has resulted in long political and legal disputes.
Numerous analysts suggest that the modern idea of human rights was formulated in a visionary way by the former US president, Franklyn D. Roosevelt, in his 1941 speech “Four liberties”.
The human rights provisions which which ultimately found their way into the Charter of the United Nations fell far short of the expectations that that Roosevelt’s vision and the wartime rhetoric had created. ( … ) In retrospected, that was to be expected, for each of the principal victorious powers had troublesome human rights problems of its own. The Soviet Union had its Gulag, the United States its de jure racial discrimination, France and Great Britain their colonial empires. It was not in their interests to draft a Charter that established an effective international system for the protection of human rights, which is what some nations advocated.2
The United Nations Charter was adopted on 26 June 1945 in San Francisco, before a single peace treaty following the Second world war was signed. The Charter announced an “internationalisation” of human rights and paved the way for the international conviction That human rights are not something exclusively within the internal juris diction of particular countries. “The Charter remained on the level of proclamation of human rights and liberties as general values of the society, thus providing the broadest basis for the further development and extension of human rights and freedoms of the citi zens.”3 In a formal sense, only the Universal Declaration on Human Rights became the first inclusive instrument for a normative regulation of human rights. Since it did not have a status of a regulative legal act, the Organisation of United Nations initiated a long pro cess, in the course of which a general obligation for protection and improvement of human rights has gradually been put into concrete provisions. Two international Pacts on human rights followed from the Declaration, two Protocols, and many other international con ventions and treaties, where principles of the Declaration were specified and improved. Apart from the world institution for the protection of human rights, within the Organisation of United Nations, regional organisations have also been set up. In order to maintain international peace and security as effectively as possible, work of regional organisations has to be in accord with the aims and princi ples of the United Nations.1he regional protection of human rights “has been established within the Council of Europe, Organisation of the American States, and the Organisation of African Unity. However, a regional protection of human rights within the Arab League, or for the Middle East and Asia, has not yet been established.’lhe main regional documents are:European Convention for the Protection of Human Rights (1950), American Human Rights Convention (1969), and The African Charter on Human Rights and the Rights of Peoples (1981).4 The European Convention on human rights (adopted in Rome and 1950, and later on several occasions augmented with 11 protocols) still represents the most fully developed and the most precise document. Although it refers to the Universal Declaration, the European Convention’s list of human rights contains mostly civil and political rights. Compared to the Declaration and the international pacts, the European Convention provides for more strict mechanisms of implementation and control. In that regard, the Convention established “The European Human Rights Commission” and, somewhat later, “The European Court for Human Rights.” I will not dwell here on the analysis of the jurisdiction and practical work of the European Commission and the European Court.However, I have to note that there is still no mechanism for implementation or monitoring of the economic and social rights (which are included in the Social Charter).At least so far, the Council of Europe did not show some particular eagerness to act towards improving the so-called right to development.
Apart from the international community and regional organisations, every country is obliged to develop mechanisms for the effective establishment, implementation and protection of human rights. In the formal sense, only signatories of the documents mentioned above have taken over an international obligation to protect human rights in their constitutions and legal systems. However, the process of internationalisation of human rights has become so strong, that the international obligations from the Universal Declaration cannot be denied even by the states whose governments refused to formally adopt and ratify them.5 For example, according to the international common law, slavery and genocide are considered as crimes against humanity regardless of whether a state has signed or ratified conventions on slavery or genocide. In an ideal situation, human rights could function complementarily through: l/ basic legal acts of every country 2/ through international conventions and declarations, and 3/ through the world community and its Universal Declaration on Human Rights. Such an international network could provide for global monitoring of respect or violation of human rights, although at the moment there are no procedural means that would force on the states an obligation to respect the international rights.
The unhindered functioning of human rights and, related to this, democratic regulation of the political and legal life, have become standard criteria for the legitimisation of modern states. Only with the presupposition of respect of human right is the effective working of a true pluralist-parliamentary democracy possible. Otherwise, what we shall have is a formal legal simulation which irresponsible embarks upon permanent postponing of democracy. The subversive element of natural law which insisted on delimitation between society and the state (“freedom from the state”) has nowadays given way to the positive law, to the operation of human rights within the state’s legal order (“through constitutional law “). As Habermas suggests, “the revolutionary moment of turning natural into positive law has been worn out during the long process of democratic integration of the basic rights.” This turn led to the creation of both political space and a legal framework for citizen’s participation in democratic decision-making procedures. The international mechanism for the codification and protection of human rights is binding states with increasing strictness to the creation of such decision-making mechanisms which will enable all particular interests to be effectively articulated within the “general will.” Through its conventions, commissions and human rights courts, Europe has already established procedures which for the first time in history make it possible for the interest of the individual, of the citizen, to come out onto the international stage, into the field of international law, heretofore reserved solely for sovereign states. The tendency of internalisation of human rights indicates the global community’s willingness to increasingly take into account the sovereignty of the individual, or of minority groups, and not of states. Respect for human rights is no longer within the domain of a state’s internal matters: care for these rights is progressively being taken over by the international community. That means that the Universal Declaration has initiated a long process of dissolution of the state sovereignty The state sovereignty has quite often been misused, in order to hide violence by the state and the lawlessness. Spreading of the consensus on human rights announces a new time, “the age of rights,” when human rights will indeed have a real chance to be universalised, to become “a general law of peoples.”
The end of the Cold War and the disappearance of totalitarian communism (the Soviet Empire), the end of the ideological conflict of the East and the West, which divided the international community for almost five decades, renewed hopes in unhindered functioning and general respect of the “human dignity,” as put in the foundations of the Universal Declaration on Human Rights. However, as shown by the 1993 Vienna World Conference on Human Rights, “the disappearance of the Soviet empire has not left a world unanimous in its commitment to the idea of human rights or to institutions that give effect to this idea. China – with one fifth of the earth’s human population – is at best in slow transition toward constitutionalism, the rule of law, and respect of human rights. A few other countries have joined China in raising the banner of “Asian values” and “cultural relativism” in an effort to undermine and discredit the universality of the human rights idea”. 6 Eastern Europe’s opening up towards the Universal Declaration did not bring any significant depoliticisation of the international function of human rights. Although there was no obvious improvement of the human rights conditions in many parts of the world, still, a wide international debate was star ted, which is to a large extent unburdened by an overt ideologizing.
Following the disappearance of ideological blocs that served to protect the countries which violated human rights, some of these states are now more liable to international pressure to improve the human rights conditions. All these factors have enabled the international community to strengthen the normative and institutional frame for dealing with the human rights issues in recent years.7
A minimal consensus was reached to treat human rights, within a new, modern concept of rights, as a multi-lateral international right that deals with the protection of individuals and groups against violations of their internationally guaranteed rights by the state. International protection of citizens from governments’ obstinacy represents a minimum about which almost all the subjects of international law could agree. Universalisation of human rights shook a traditional doctrine of international law, according to which they were supposed to regulate exclusively the relations between the national states. “To the extent that states had any international legal obligations relating to individuals, they were deemed to be obligations owed to the states whose nationality the individuals possessed.”8 In a legal sense, a citizen was exclusively within the jurisdiction of his/her own state. Thus, it comes as no surprise that the Pact of the League of Nations, the contract by which the League was founded in 1920, does not contain any provisions about human rights! Only the Universal Declaration enabled strengthening of the international mechanisms for the protection of human rights, enabling their jurisdiction to spread to all parts of the world. The moral. political, and normative power of the Universal Declaration has enabled the international community to reach for extraordinary measures, especially in cases of mass violations of human rights.
Of course, this does not mean that the internationalisation of human rights in the second half of the 20th century could be interpreted only through progress of the humanist “ideology” that follows a normative concept of the social and political justice, that is to say, that emphasises ethical solidarity with the ones who are denied basic human rights. The program of establishing international humanitarian responsibility has for a number of years been the subject of diplomatic competition and ideological propaganda.
The fact that the normative standards adopted then were looked upon as something redundant or impossible to carry out, has undoubtedly enabled the appearance of human rights on a global level. Due to their fear of potential influence of their citizens, liberal democracies were especially eager to adopt norms that would as a matter of fact be redundant. Authoritarian states were ready to accept the normative standards that were extremely at odds with the way they functioned, since it seemed to them that there is no way they could be carried out under the influence of an external factor, nor that they could be reached by an internal pressure. Generally speaking, for liberal democracies , guaranteeing human rights meant advocating values related to the ideas about dignity of the individual. For authoritarian states, who oppressed their citizens, guaranteeing human rights meant acquiring legitimacy with regard to the outside world. Also, human rights to an extent represented moral trump cards in the ideological game that was, in the middle of the Cold War, played for hearts and souls of the people throughout the world. 9
Both blocs worked equally on minimising the effective influence of human rights on the type and contents of government – Western countries, which out pragmatic reasons (protection of foreign investment) helped the authoritarian regimes in Eastern Europe, and communist countries, which suffocated their own opposition and prevented the appearance of an active civil society. ” Hence, in the course of first twenty years, foundations for the culture of human rights have been laid, but there were almost no conditions for its realisation,in the sense of improving living conditions for peoples of the world. ” 10
An important step forward was not only a product of a strengthened humanism, but it also came as a result of the pressure of new relations of political power in various areas of the world.New efforts to solidify and work out international mechanisms for the protection and monitoring of human rights have only partially been actualised in the relevant bodies of the United Nations and the Council of Europe. Trans-national sensibility organised around this issue came as a result of the anti-colonial movement, world-wide anti-apartheid campaign, increased awareness of the right of peoples to selfdetermination, and widespread civic initiatives. A new geopolitical balance of powers abolished the barriers between the blocs, and new demarcations when it came to human rights shifted towards the underdeveloped countries, Arab world, Muslim fundamentalism, and aboriginal peoples. The Cairo Declaration on Human Rights of 5 August 1990 represented a step forward of a specifically regional, Islamic reception of human rights. That document represents an important attempt at codification of the shari’a principles in the area of human rights and liberties.11 A new wave of internationalisation of human rights came as a result of the changed international relations. The process of increasing expansion of civil, political, and human rights have been consensually supported by the so-called new world order. To complicate the matter further, a new, “neo-liberal” elite completely ignored international economic and social rights of poor countries. Undeveloped countries were coerced into bowing to the mechanisms of world market, within which, despite all the reforms and privatisation, they had no real chance to succeed. In those circumstances, calls for human rights and, related to that, insisting on democracy, could sound like a post-colonialist interven tionism. Macro-economic policies and market logic of multi-national capital are still in the way of efforts to really improve social and economic position of the poorest countries. Unbalanced distribution of the international power and wealth is in the very foundation of the prolonged and strong resistance to generalised moral norms that come out of human rights. “Globalisation from above” produces hegemonic effects which systematically endanger consensual acceptance of the universal status of human rights. As Richard Rorty sug gested, “the human rights culture ” (the expression was first used by Argentinian jurist and philosopher Eduardo Rabossi, in his article “Human rights naturalised”) can count on universal solidarity only under the condition that it frees itself of pro-Western cultural impe rialism. “We see our task as a matter of making our own culture – the human rights culture – more self-conscious and more powerful, rather than of demonstrating its superiority to other cultures by an appeal to something transcultural. “12 Human rights, their norms and procedures, discourses and institutions, could be separated from their ambivalent Western origin and latent hegemonism only under the influence that they be “globalised from below,” to be universalised based on respect for differences between countries, regions, cultures and civilisations. Non-violent, consensual internationalisation of the universal norms of human rights will in the future have to be tied to the project of global civil society, with the program of building a cosmopolitan, trans-national democracy.13 Only under this condition the world community could become a general guarantor, a global equivalent of the universal validity of human rights.
The case of FR Yugoslavia
Development of the civic law, that was in Western Europe relevant for understanding law in general, did not have any particular effect in the Balkan countries. A process of spreading of the modern law (constitutional rights and civic laws) and legal culture did not encompass young nations which in mid-19th century emancipated themselves from the Ottoman Empire. A belated process of constituting national states developed based on the prevailing private laws and traditional customs that held on. “That is why the principle of the equality of citizens, which civic law tries to ensure, will be in greatest danger here from the conservative elements of kin, not feudal social structure.”14 In the course of 19th century, Serb constitu – tional history perceived the constitutional law as an instrument of struggle for national independence and legal means to confront the strong absolutism.
None of those two things, as shown by the constitutional history from Karadjordje’s edicts, via the Sreten Constitution (1835), 7Urkish Constitution (1838), and Regent Constitution (1869) could not be in favour of personal freedoms and rights. A tendency to limit power that refers only to the narrow circle of individuals and a tendency for collective aims are not the best allies of personal rights. According to legal historians, rights of the individuals in Serbia of the time were most often a chimera, although they were written in constitutions and laws. There is even a qualified opinion that up to the First World War, lino constitution in the Serb constitutional history has been adopted in a legal way.”14
Thus, it comes as no surprise that Serbia adopted her first civic law in 1844, under the tutelage of an absolute despot, the illiterate merchant Milog Obrenovid. According to the research of a sociologist of law,
A civic law for the Princedom of Serbia was still adopted taking the Austrian Civil Law as the model,thus satisfying the demand that the Serb initial civil legislation should be, in Milog’s own words, “appropriate to the monarchist principle”, and that it should not irritate three patron monarchies, Turkey, Russia, and Austria.15
In accordance with the common law, the first Serbian law founded civil society on the natural law principle of home zadrugas. In the following period, common law increasingly lost importance, and was subsequently substituted with the positive legal legislation in the tradition of the European heritage. However, a substance of selflegitimisation of political authority (from monarchist absolutism to totalitarian communism), has become a permanent obstacle for the establishment of a state of law and a rule of law in Yugoslavia. Parliamentary legislation did not function according to the ethos of the European jurisdiction states.
Just to remind, 19th century constitutional monarchies were parliamentary states. “Under the heading The Rule of Law, Otto Mayer says:’The highest kind of the state will is the one uttered in the name of the law. A legislator of a consistent legislative state has to have the monopoly of legality in his hands’. “16 Belief in ” the rule of law, ‘, in the unlimited right of the legislator, has led Max Weber to write: “The most well-known form of legitimacy today is belief in legality.” Unlike constitutional republics based on the state monopoly on law and legality, authoritarian systems legitimise themselves through a political concept of the law, devoid of any relation to law and justice. Totalitarian states have brought to the final consequence a process of political suspension of law and morals. In case of the first, and later second, communist Yugoslavia, the reality of legal norms and legislative procedures was absorbed by political voluntarism of the elite in power. A fleeting remark by Josip Broz Tito, “We shall not hang on to laws like a drunkard hangs on to a street post,” vividly illustrates a lack of the legal order and a collapse of legitimacy through legality.
On the other hand, 20th century have developed a legitimising power of legality A permanent self-correction of a democratic system is a result of the conviction that “the source of legitimisation should not be sought one-sidedly, only in the place of either political legislature or judiciary.”17 In societies of high complexity, as suggested by Habermas, the idea of the state of law and, in connection with it, autonomising of the legal system, constantly intertwines with morality and politics. Morality and politics no longer linger over the law, but enter the positive legislature, get confirmed in it without getting dissolved.
That the remaining idea of the state of law, which I have reformulated, is not euphorical, but that it stems from the ground of the legal reality itself, could, finally, be seen in that the autonomy of a legal system could be measured by that idea only If the dimension for which legally institutionalised ways of establishing are being opened towards moral argumentation would close, we would no longer know what else the autonomy of law could mean but the autonomy of constitution. The legal system does not acquire autonomy for itself. It is autonomous only in as much as institutionalised acts of legislature and judiciary guarantee unbiased creation of courts and will, thus bringing the ethical procedural rationality equally to both law and politics. There is no autonomy of law without a serious democracy.18
A great change in the legal order occurred in Western democracies. An advancement in the culture of rights could be seen in the acknowledgement that subjective rights are as original as the objective ones, and that they constitute the legal order together. The emphasis is put on the inter-subjective sense of subjective rights, a sense that has long been unrecognised and unacknowledged, because of the individualist understanding and liberalist phrasing.
A right, after all, is neither a gun nor a one-man show. It is a relationship and a social practice , and in both those essential aspects it is an expression of connectedness. Rights are public propositions, involving obligations to others as well as entitements against them. In appearance, at least, they are a form of social cooperation, no doubt, but still, in final analysis, co-operation.19
The etatistic understanding of the objective law, as well as positivist dogmatics of the civil law are being abandoned, and the stress is increasingly put on inter-subjective aspects of subjective rights.
At a conceptual level, rights do not immediately refer to atomistic and estranged individuals who are possessively set against one another. On the contrary, as elements of the legal order they presuppose collaboration among subjects who recognize one another, in their reciprocally related rights and duties, as free and equal citizens. This mutual recognition is constitutive for a legal order.20
Progress in the process of legitimacy lied in the first place in the process of democratic introduction and regulation of rights that retroactively refer to the principle of civil and people’s sovereignty. From that moment onwards, the idea of human rights and of people’s sovereignty has become the determining criterion of normative self-understanding of the democratic states of law. A just society could be constituted only where political freedoms are secured through democratic legislature, and where the legitimacy of law is based on the universal justice and solidarity “The aim of the excursus was to explain why human rights and the principle of popular sovereignty still constitute the sole ideas that can justify modern law.”21 The task of modern democracies is to resolve a latent tension between the postulated priority of human rights, or, popular sovereignty. That internal balance between a tyranny of the majority and a new power of the minority, between the republican and the liberal reasoning, could be provided by a developed democracy An internal connection between the popular sovereignty and human rights is secured through the fact that the legal system creates regular conditions under which “communicative forms of the Lifeworl” (J. Habermas) could be institutionalised, since they are indispensable for a politically autonomous legislature. In that regard, “the substance of human rights then resides in the formal conditions for the legal institucionalization of those discursive processes of opinion-and will-formation in which the sovereignty of the people assumes a binding character.”22
In contrast to the long process of democratic consolidation of the state of law in the West, the communist Yugoslavia apologetically took over the Bolshevik legal paradigm, which was canonised by the Russian 1918 Constitution and the Soviet 1937 Constitution. The Soviet Constitution openly declared a total abolishment of the rights of individuals, a sovereign sphere of his/her personal freedom that stood in the way of the unlimited state authority. The laws did not function as legal instruments for the limiting of power, but as political instruments of the unlimited expansion of the absolute power. In the backdrop of the Bolshevik legislature it took over, the FPRY (Federal People’s Republic of Yugoslavia) and the SFRY (Socialist Federal Republic of Yugoslavia) did not function as legal, but as a totalitarian state, based on the usurped monopoly of the 1egitirnate violence.” Traditional means of coercion equally disabled sovereignty of peoples and rights of individuals. The deficit of legal legitimisation created a political space in which a general interest of the majority was suspended through a tyranny of a Party, communist, minority. The society was ruled by political arbitrariness that needed to be suppressed even with the mechanisms of a restrictive legislature. “There is no censorship in Yagoslavia,” as philosopher Zarko Puhovski once said, “but there are many bans, so it turns out that, perversely speaking, there would be a progress if a censorship would be instituted as the sum of rules on bans.”23 Socialist regimes used the legal infrastructure as a screen to hide the political voluntarism of the one-party state. Since the autonomy of the civil society has een cancelled, all the citizens, and oppressed and marginal groups in particular, could not equally participate in the shaping of the socalled socialist laws. In that regard, legal order of the SFRY disabled a real balance between the formal and the material interpretation and realisation of the adopted laws. Such a misbalance between legal norms and legal facts has prevented the FRY (Federal Republic of Yugoslavia) from fulfilling the obligations it took in a proper, statelike manner.
The question of the legal, political and social status of human rights in the FRY was opened only after the fall of really existing socialism,and intensified under pressure from the international community The matter gained additional currency against the background of the crumbling of a party and police state, which did not succeed in evolving into a democratic state ruled by law. The crisis of implementation of human rights in the FRY was intensified by the fact that this state has been excluded from nearly all international institutions. Systemic and wide scale violation of human rights in the FRY has turned out to be one of the principal obstacles for return into the international community and to possible future integration into the European Union. There are no signs which could indicate that the FRY authorities are ready to correct their position on human rights, and even less that they are willing to expose themselves to the risk of international control of their implementation.
Legal, social and political order of the post-communist FR Yugoslavia is in the state of total chaos.24 Legal acts, constitutions, and laws are to a great extent normatively vague, formally disordered, and practically impossible to implement. Legal acts are uncoordinated and ambiguous among themselves, as well as compared to the international standards. The legal situation is drastically worsened when restrictive legislative acts that endanger normal functioning of various spheres of public life were introduced.On the fiftieth anniversary of the Universal Declaration, FR Yugoslavia adopted a number of new laws (on information, media, and taxes) that aim at cancelling the democratic potentials of the civil society When the awareness on civil and human rights began to enter the political and public discourse, the regime reacted with new legal sanctions. The authorities could not or did not want to allow the legalisation of a process in which an individual could endanger the absolute sovereignty of the state. Under the circumstances, a declarative establishment of human rights in the FR Yugoslavia, frequently hidden behind the liberal rhetoric, cannot legitimise a state ruled by the legal, political and social insecurity The position of human rights as well as the objective understanding of the possibilities for their realisation in the so-called transition countries (one of which is the FR Yugoslavia), has to take into account the structural limitations. First, thorough changes in the society, crisis of enormous proportions, extraordinary circumstances, war, and, finally, dissolution of the former Yugoslavia, formed a legal area of excess, where legal regulations of public and private life simply does not exist. Second, emancipation from totalitarian and authoritarian regime is burdened by a collectivist heritage insensitive for liberal culture and individualist tradition.The reforms processes came not as a result of demands for establishing freedom of the individual, but freedom of the nation, from demands for an emancipation of the ethnos, not citizen. What we have here is a political relapse that tries to substitute a 20th century socialist state with a 19th century national state “Thus, societies in transition become incapable to resist national and religious discrimination. Many of them have great troubles with citizenship, which is understood as membership in a dominant, most numerous, statemaking nation, instead of being understood as simple connection with the state, leaving former co-citizens in position of the apatrids. “25 Third, normative co-ordination of national regulations with international legal standards is a necessary, albeit not sufficient, (pre)condition of full functioning of a state of law, and, related to that, of the consistent rule of law. Normative lack of co-ordination of Yugoslav regulations on human rights with international standards is especially visible in the area of civil and political rights. For example, highest legal documents of FR Yugoslavia
presuppose realisation of human rights exclusively based on the Constitution and the laws, without referring to relevant international instruments, which means essentially giving priority to the internal legislature in a sphere which is no longer in the exclusive jurisdiction of the state. (Moreover), realisation and implementation of human rights is brought into the context, or is being implicitly conditioned by the execution of adequate obligations or duties. That is contrary to all the international standards and original philosophical-juridical and political concepts of human rights.26
Fourth, even under the condition that we have a relatively correct legislature and that we have signed most of the international documents, it could be no guarantee that political, civil and human rights will be respected without a possibility of international control. A detailed international expertise of the state of human rights in the FR Yugoslavia could come up with devastating and almost astonishing results on this level. In a state where human rights are treated as an exclusive civil privilege, there are no effective processuallegal mechanisms for their protection and international guarantees.
In the context of suspension by the state of legal regulation of social and political life, civic initiatives in connection to the implementation of human rights in the FRY acquire special weight and significance. A decisive request to the FRY Government to adhere to certain standards of behaviour towards its citizens has come from the inside, from the Belgrade civil and no n- governmental scene. Especially strong pressure on the state – which must improve legal and constitutional protection of the individual – have come from the sector of civic organisations, associations and movements. There are around 800 non-governmental organisations in FR Yugoslavia, and they have become the main internal strongpoint of the struggle for recognition of political, civic and human rights.27 A particular contribution for both theoretical and practical increasing of sensibility of the public opinion for the culture of human rights was provided by the following non-governmental organisations: The Belgrade Circle, Helsinki Committee for Human Rights in Serbia, Belgrade Centre for Human Rights, Humanitarian Law Fund, Centre for Anti-War Action, Women in Black, Civic Initiatives, Yugoslav Committee of Lawyers for Human Rights, Centre for Women’s Studies, Democratic Centre, European Movement in Serbia, and Forum for Ethnic Relations. The intensive practical-political involvement and extensive theoretical production of books, edited volumes, journals, manuals, bulletins and newspapers, formed an informal network for establishing, monitoring and developing of human rights.28 These initiatives contain a potential threat to the legitimacy and sovereignty of a state which is indifferent and cynical to the question of human rights. FR Yugoslavia has etatised both legislature and the judiciary, leaving no room for real, but only for the rhetorical acceptance of human rights. Endangered civil society has in need turned against the state reason, and horizontal initiatives of non-governmental organisations have shifted into the anti-government, political engagement. Under the normal circumstances, improvement of legal norms in our political and legal system would have to be the task of both the state and the society. However, there is still no political or legal culture in FR Yugoslavia that would understand democracy as a double, converging process.
“The implications of these points are profound: for Democracy to flourish today it has to be reconceived as a double-sided phenomenon: concerned, on the one hand, with the re-form of state power and, on the other hand, with the re-structuring of civil society. The principle of autonomy can only be enacted by recognising the indispensability of a process of double democratisation, the interdependent transformation of both state and civil society.”29 The process of subversion of state sovereignty is also possible through human rights – although individual citizens of a country are not subjects of international law. Only in the courtroom and in the language of law are rights defended and represented as the achievable rights of individuals, which citizens may litigate. In that respect, realistic conditions still do not exist for an individual to win in court proceedings against his/her state in an international court.
This issue of the Belgrade Circle Journal is intended to point out the main directions of the expansion of the idea and culture of human rights. In doing this, we have not succumbed to the naive political euphoria which is increasingly spreading in connection with the formal legal legitimisation of the modern state. The process of increasingly visible globalisation of human rights testifies convincingly to the advantages of the legalist model of legitimating. However, the “Western” insistence on the universality of human rights can function virtually as a diplomatic and political alibi for post-colonial interventionism. In all cases, the diffusion of demands for general recognition of civic, human and political rights must take into account the social and economic, i.e. structural limitations of their application. In other words, underdeveloped countries, “that ratify the Covenants must immediately cease torturing their resident, but they are not immediately required to feed, clothe, and house them.”30 The politics of globalisation of human rights must take into account cultural priorities, regional specificities and local limitations. Otherwise, authoritarian regimes may respond using the geopolitical argument, claiming that the struggle for human rights is nothing but a post-colonial manoeuvre, a conspiracy of the new world order against regional or national interests. Naturally, the global processes of adapting the state to the idea of human rights may also work from below, taking into account all the cultural, regional or national differences. It is our belief that modern states follow without hindrance the normative concept of social and political justice, precisely by demonstrating international solidarity with individuals or groups whose basic human rights are jeopardised or completely denied.
Finally, despite a real conflict of global,local and regional interests and needs, one could state the conditions under which a non-violent and general consensus on human rights is possible. Western discourse of human rights forms an intrinsic value, whose international persuasiveness “comes from the sense that they are not just features of our legal tradition, that they are not part of what is culturally conditioned, one option among others which human societies can adopt, but fundamental, essential, belonging to human beings as such – in short, inviolable.”31 That is the minimum around which different groups, states, countries, religious communities, cultures and civilisations could agree. Although they would keep mutually uncoordinated fundamental views on theology, metaphysics and philosophy of human rights, they could still agree on certain norms and rules that should govern human behaviour. As suggested by Charles Taylor, “We would agree on the norms, while disagreeing on why they were the right norms. And we would be content to live in this consensus, undisturbed by the differences of profound underlying belief”. When Louis Henkin announced “The Age of Rights”, what he had in mind was a new form of international co-existence, arising under the guise of the broad and non-violent consensus on human rights. Unlike the old compromise, which insisted on fragile co-ordination,the new, allencompassing consensus is continually opening up towards individual disagreements around which we could reach some conclusion, so that a consensus would be renewed,with mutual respect. I do not see why anyone would willingly abandon translatio juris of non-intrusive and wide reaching consensus about the inviolability of their own human rights. A singularisation of the law, and not collectivisation of duties (towards the state, party, nation, race or religion), which, as a rule, undermines a belief that we share similar beliefs and common values, is, in the long term, the only solid basis of a non-violent universalisation of human rights.
This text was written as Introduction to the book: Politics of Human Rights, Verso Press, London-New York, 1999., ed.,
The Yugoslav delegation had numerous objections to the proposed outline of the Declaration. First,Declaration is "conceptualised individually ",and sees citizens as isolated individuals, independent of any given social context. Second,the document favours individuals as subjects of individual rights, and not the state as a subject of the international law. lbird,there are no social rights in the proposed list of human rights. Finally, the FPRY delegation particularly insisted upon taking into account the rights of national communities, that an individual must be granted certain rights, not just as an isolated individuum,but also as a member of a national community The political paradox is in the fact that a delegation of a communist country insisted on complete protection of national rights, which,in the period of dissolution of that country, could not be realised without war, violence and violation of human dignity See "The position of the FPRY delegation ", Arhiv za pravne i drugtvene nauke Belgrade, 1/1949, 126131.
Thomas Buerghental, International Human Rights in a Nutshell, West Publishing Co.-- St. Paul, Minn, 1988, p. 18.
See Sevima Sali and Z1atan Terzic (eds.), Medunarodni dokumenti o ljudskim pravima, Pravni centar BiH, Sarajevo, 1996, p. 32.
Miomir Matulovic, Ljudska prava:uvod u teoriju ljudskih prava, p. 222, Filozofska istrazivanja, Zagreb, 1996. For regional rights as topic of intensive research,see: R.E. Howard, Human Rights in Commonwealth Africa, Rowman, New Jersey, 1986; L. J. LeBlanc, The OAS and the Protection of Human Rights, Martinus Nijhoff, The Hague, 1997; Karsten Luthke und Bernd Thomasen (eds.), Der Regional Menschenrechtsschutz in Afrika, Amerika, und Europa, Fischer Yerlag, Frankurt am Main, 1988; A. H. Robertson, Human Rights in Europe, Manchester University Press, Manchester, 1986.
At the 1993 Vienna World Conference on Human Rights, a Declaration and a Program of Activities were adopted,signed by the representatives of 171 states. At that time, the United Nations had 185 member states. The first article of the Declaration reads: "Human rights and fundamental liberties are rights of all acquired by birth,their protection and promotion is the first task of the governments. Even if a country did not sign or ratify any convention or agreement on human rights. it is not less morally obliged by the Declaration signed in Vienna." See, Kathryn English and Adam Stapleton, The Human Rights Handbook (in Croatian), Centar za direktnu zaititu Ijudskih prava, Zagreb, 1998, p. 17
Louis Henkin, The Age of Rights, p. xi, Columbia University Press, New York, 1990. For the epistemological foundation of human rights on the idea of dignity, see Ellen Frankel Paul et al.(eds.), Human Rights, Basil Blackwell, London, 1986. About the redundant human rights rhetoric, Tom Campbell says:" The stance that all human beings have certain rights by virtue of their humanity, rights which are not be set aside for any purpose whatsoever, is a hypnotically arresting ideology", Tom Campbell et al. (eds.), Human Rights from Rhetoric to Reality, Basil Blackwell, Oxford, 1986, p. 1.
Tomas Burgental, Medunarodna ljudska prava u saietom obliku, Beohradski centra za ljudska prava, Beograd, 1997, stn 13-14.
Thomas Buerghental, International Human Rights in a Nutshell, West Publishing Co., St. Paul, Minn, 1988, p. 2.
Richard Folc,"Traganje za ljudskim pravima u doba globalizacije," in: Konstantin Obradovid and Milan Paunovic (eds.), Pravo Ijudskih prava, Beogradski centar za Ijudska prava, Beograd, 1996, pp. 12-13,.
Ibid., p. 14. A geopolitical critique of the spread of human rights is discussed in Noam Chomsky and Edward Hermann, The Political Economy of Human Rights, South End Press, Boston, 1979.
Enes Karic, Ljudska prava u kontekstu islamsko-zapadne debate, Pravni Centar BiH, Sarajevo, 1996, pp. 275 - 283.
Richar Rorty,"Human Rights, Rationality, and Sentimentality", in the Belgrade Circle Journal, Nos. 3-411995,1-2/1996, p. 44.
See David Held, Democracy and the Global Order, Stanford University Press, Stanford, CA, 1995; David Held and Archibugi Daniele (eds.), Cosmopolitian Democracy, Polity Press, Cambridge, Mass., 1994.
Miroslav Prokopijevid, (ed.), Ljudska prava, Institut za evropske studije, Beograd, 1996, p.13
Aleksandar MoInar, Drustvo i pravo, Vol. 2, Visio Mundi, Novi Sad, 1994, p. 565.
Carl Schmitt, "Legalnost i legitimnost", inMirj ana Kasparovic and Nenad Zakosek (eds.), Legitimnost demokratske vlasti, Naprijed, Zagreb, 1996, pp. 55-56.
Jï¿½rgen Habermas, "Kako je moguca legitimnost putem legalnosti", in Mirjana Kasparovic and Nenad Zakosek (eds.), Legitimnost demokratske vlasti, Naprijed, Zagreb, 1996, p. 136.
Ibid., p. 142.
F. Michelman, "Justification and the Justifiability of Law in a Contradictory World", Nomos 18:71, 1986.
Jï¿½rgen Habermas, Between Facts and Norms: Contributions to a Discourse Theory of Law and Democracy, The MIT Press, Cambridge, Mass., 1998, p. 88.
Ibid., p. 99.
Ibid., p. 104.
Zarko Puhovski, "Sta je pravna drzava?", Gledista, Nos. 10-12:1989, p. 71.
For a disastrous state of human rights in the FR Yugoslavia, see: Elisabeth Rehn, Question of the Violation of Human Rights and Fundamental Freedoms in any Part of the World - Situation of the Violation of Human Righst in the Territory of the Former Yugoslavia, Commission resolution, 1996/71, (1. Elizabet Ren, Stanje ljudskih prava na teritoriji bivse Jugoslavije, Beogradski centar za 1judska prava, Beograd, 1996.; 2. Elizabet Ren, Izvestaj Specijalnog izvestioca Kornisije za ljudska prava Elisabet Ren, Beogradski centar za ljudska prava, Beograd, 1997); Lidija R. Basta,(ed.), Constitutional Prerequisites for a Democratic Serbia, Institut du federalisme Fribourg, Suisse, 1998. (Ustavrte pretpostavke za demokratsku Srbiju, Vojin Dimitrijevic (ed.), Beogradski centar za ljudska prava, Beograd, 1997.);Vojin Dimitrijevid and Goran Svilanovid (eds.), Ljudska prava kao tema u javnosti - Ljudska prava U pravnoj praksi, Beogradski centar za ljudska prava and Centar za antiratnu akeiju, Beograd, 1997; Aleksandra Jovanovic and Slobodanka Nedovic, Economic and Social Rights in the Federal republic of Yugoslavia, Belgrade Centre for Human Rights, Belgrade, 1998; Vojin Dimitrijevic, (ed.), Human Rights in Yugoslavia 1998, Belgrade Centre for Human Rights, Belgrade, 1999. An important contribution to the valorisation of human rights in FR Yugoslavia was also given by the following NG0s in Belgrade: Helsinki Committee for Human Rights in Serbia, Fond za humanitarno pravo, Yugoslav Lawyers Committee for Human Rights, Centre for Anti-War Action.
Vojin Dimitrijevic, "Tranzicija ka ljudskirn pravima", in Vojin Dimitrijevic and Milan Paunovic (eds.), Prava i sloboda: medunarodni i jugoslovenski standardi, p. 213, Beogradski centar za ljudska prava, Beograd, 1995. "Our aim is to try to point to the special circumstances of transition, which could bring closer or push away farther the ideal of human rights, and even to make that in the end it could turn out that a transition ends in a state that is the same or even worse when it comes to human rights, compared to the initial situation." See also, Vojin Dimitrijevic, Neizvesnost ljudskih prava, Izdavaca knjiznica Zoran Stojanovic, Sremski Karlovci - Novi Sad, 1993.
Neboisa B. Vucnic, "Jugoslovensko pravo i medunarodni standardi o ljudskirn pravima - normativna analiza", in Vojin Dimitrijevic and Milan Paunovic (eds.), Prava i sloboda: medunarodni i jugoslovenski standardi, Beogradski centar za ljudska prava, Beograd, 1995,.pp. 143-170.
Branka Petrovic and Zarko Paunovic Directory of Nongovermental Non-Profit Organizations in the FRY, C13NPS, Beograd, 1997
Development of the theory and practice of human rights in the FR Yugoslavia did not go through state institutions or publishing houses. For example, there is still no department for the study of human rights at the Faculty of Law at the University of Belgrade. Human rights could be studied only within the International Public Law department. A fearful opening of the academic circles towards the issue of human rights is marked by a specifically Marxist reception. That period is reflected in the special issue of the journal Gledista, "State of Law, Human Rights and the Rule of Law", No/10-12, 1989, The decisive turn in the extensive reception of the idea of human rights was created by non-governmental organisations, and in particular Belgrade Centre for Human Rights. Their library about human rights is the first publishing document of the advanced theoretical culture of human rights in the FR Yugoslavia.
David Held," Democracy Today ",in:David Held, Models of Democracy, Stanford University Press, Stanford, CA, 1987, p. 283.
David Weissbrodt, "Univerzalna Deklaracija o ljudskim pravima", in Ljudska prava, Nos. 1-2/1998, p. 20.
Charles Taylor, "Conditions of an Unforced Consensus on Human Rights ", in The Belgrade Circle Journal, Nos. 34/1995 and 1-2/1996, p. 79.
Published 7 October 1999
Original in English
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