2008 16/01

Vasil PaliakouWhen speaking about restricting human rights, one always runs the risk of feeling alerted and anxious. Human rights are a universal value and any restriction of these rights may undermine the essence of the value. However, according to the famous Polish human rights activist Marek Novicky, as far the European law is concerned, such anxiety is groundless, since restrictions are a fact and they should exist, but their amount and manifestation is to be carefully controlled. [4, 22-23]

Therefore, there arises a need for a more detailed analysis of the issue of restricting human rights, including the aspects of philosophy, cultural studies, society and law. However, the classification used is relatively conditional, with many of the observations being rather disputable. Still, for the sake of a system analysis, it would be better to differentiate between the following types of restrictions: conceptual restrictions, i.e. restrictions connected with a specific treatment of the category of human rights at the present time; socio-normative restrictions, i.e. restrictions resulting from specific social standards (morals, religious and political beliefs); and, finally, political restrictions.

Conceptual restrictions

There is no any definite and universal concept of human rights. Therefore, it may be treated quite differently by, say, residents of Asia and Europeans. So what is the essence of the concept?

Students, white-collars or even workers would often claim their rights are violated by the employer. Let us analyze two instances. 1. A student has not passed his exam because his convictions conflict with those of the teacher. 2. The employer made a turner work overtime, threatening to fire him. Can we speak of violating human rights in these cases? A human rights expert would say no, because one can speak of violated rights only when the interrelation of the state and the individual are concerned. [3. 3] Here, the conflict is purely interpersonal: ‘the employees have been affected, but we can say their rights have been violated only when the state cannot repair their damage’, says the human rights expert. Philosophers would disagree and their reasons would be as follows: ‘Human rights are based on freedom and dignity. In both cases freedom was restricted and dignity was affected – the teacher did not acknowledge the value of the student’s opinion, the employer resorted to open constraint, which is extremely humiliating for his employee. Therefore, their rights were violated.’ Who is right: the human rights expert or the philosopher?

John Locke says that, in his natural, pre-social state, Man enjoys am infinite variety of rights. However, it causes many troubles, and people refuse a part of their rights and delegate them to the state [2, 310-311]. Thus, it is appropriate to say that human rights had existed long before the state came into being. The American colonists searching for gold and land in the West enjoyed the same rights, but they needed security and, as a result, gave up some of their rights by creating a state [3, 6]. Thus, we can observe a contradiction as far as approaches to the concept of human rights are concerned. Assuming that human rights belong to the sphere of person-state interrelation, we may arrive at a conclusion that there were no human rights before the state was formed. However, Locke asserts that the state is created so that it could effectively protect the natural and inalienable rights of individuals [2, 311]. Moreover, according to Thomas Hobbes, these rights are given to Man by nature [1, 290-291], therefore they have nothing to do with the state.

Now we can proceed to what may be called conceptual restrictions. The thing is that we should differentiate between human rights in a general and a restricted sense.

Thus, in their widest meaning human rights are everything that deals with the freedom of Man, his dignity and opportunities to act. This is a philosophical and natural treatment of human rights. In this case they do not depend on whether the state exists or not. The existence of Man with his nature-given and inherent rights is essential to understanding this aspect of the matter.

As for the restricted meaning of human rights, we can determine the two basic concepts: autonomy of individual and human dignity. However, autonomy can be restricted by other people, and dignity may be affected by anyone: your neighbour, friend, cleaner etc. Can we say that they violate our rights? In a way, we can. But in similar situations we both the offender and the victim are absolutely equal; they do not depend on each other and can resist the offence. It all depends on our ability to resist the aggression of other people and protect our rights, or interests, to be precise. It has more to do with psychology. In terms of human rights, we should only analyze the ‘authority-subordination’ relations. This is one of the conceptual restrictions of human rights. But where does the notion of power end? Should we only speak of political power or analyze all of its variations, including power of one individual over another, e.g. based on brutal force (terrorists-hostages)? For when we depend on someone else due to his position, we cannot enjoy equal opportunities. A person who is in subordination to another person cannot be his rightful partner and, as a rule, is not ready to protect his dignity using the same means as he would use in a conflict with his neighbour. On the microlevel, where authority is essential, it is the autonomy of individuality and human dignity which are mainly restrained. Can we name all the above-mentioned facts human rights violations? The Polish professor W.Osiatynsky admits that there are interpersonal relations that resemble the alignment of forces between the individual and the state in a sense that one side is higher in the social or political scale and can achieve one’s ambition through compulsion, while the other side is a weaker one and cannot break off the relations. In such cases, in his opinion, we should apply human rights legislation, since without this protection the weaker side would feel helpless and not be able to protect one’s dignity [5, 11]. So why do human rights experts restrict the sphere of human rights and freedoms to the state-individual relations? The answer is in the sphere of the practical application of human rights protection techniques. A wider treatment of human rights requires a more complicated system of protection, which is so far unachievable in practice. One has to sacrifice quantity for quality. It is quite possible that in the near future every enterprise will have an independent human rights committee that will consider claims against the employer. As yet, it is nothing but a dream. Who can guarantee that people who dare not sue their employers, will overnight start addressing their complaints to other bodies. The issue is to a large degree connected with the legal culture of both society in general and its representatives in particular. So far one thing is certain – for an efficient protection of human rights one should clearly determine their limits, i.e. forget about horizontal interpersonal relations.

However, we cannot but mention the social and cultural rights of people, which, according to some analysts, are indirectly connected with the concept of human rights [5, 11; 3, 24]. Some would call the theory strange, for it is a fact of common knowledge nowadays that we should differentiate between civil, political, socio-economic and cultural rights. There is a special treaty named the International Covenant on Economic, Social and Cultural Rights. So how can we question the existence of social, economic and cultural rights?

This seems to be a hasty consideration. Judging the issue on second thoughts, it appears to be extremely topical. We can address the UN Human Rights Committee in case our rights have been violated, but only the rights mentioned in the Covenant on Civil and Political Rights. I.e. there is no any clear mechanism of protecting social and economic rights so far, although the two treaties were adopted and took effect almost simultaneously. The European system for the protection of human rights does not provide for any procedure of submitting a claim against the violation of social or economic rights either. Can it only be attributed to the fact that the implementation of social and economic rights requires supreme effort by the state or do these difficulties belong to the sphere of science? Anyway, we cannot ignore the following facts: 1. The concept of social and economic rights was formed under the influence of Communist countries, the Soviet Union, in particular, which had a major influence on the international level after the WWII and, therefore, was deemed to counteract the so-called ‘bourgeois civil and political rights’. That is why social and economic rights were only mentioned in the Universal Declaration of Human Rights as a result of a compromise, not due to some effort by the human rights community. 2. They would rather fit in the system of human needs, not human rights. ‘Human rights cannot embrace all human needs. They can be only applied to the basic needs, dealing with personal security. Physical security can be affected by instruments of constraint, and therefore it belongs to the concept of human rights. So does the right to the freedom of action in the private sphere without any interference by the state. There is another aspect – personal security within the limits of a specific community – everyone, deprived of his or her right to make decisions, affecting his or her interests, is deprived of the sense of security. And, naturally, there is the basic social security, which stops functioning in case the individual is deprived of necessities – food and home. However, human rights do not and cannot mean satisfying every need, dealing with well-being, social equality or conditions of life, life diversity or experience, formation and development of interpersonal relations or search for the meaning of life.’ This is what experts say [5, 11-12]. We can only state that there is one more conceptual restriction of human rights. And who can challenge its right to existence?

Socio-normative restrictions

When analyzing human rights as an integral system, it should not be forgotten that, besides legal regulations there are other social standards, which sometimes equally significant for the society. These are, first of all, traditions, morals, religious and political standards. There could, on the face of it, be no serious conflicts between, say, the standards of morality and human rights. Human rights are the supreme values and, therefore, their morality cannot be denied. Is it always so?

Let us try to analyze. To simplify our task, we will have to dwell upon the freedom of speech solely. Let us start with the morals.

The morals. Being extremely abstract and viewing the freedom of speech as an absolute value, it turns out that an individual can at any time say whatever he or she wants. I.e. the unlimited exercise of the freedom of speech means that a fool can be addressed as a fool, a handicapped be called so etc. Or, upon learning a secret form the private life of a person you are free to share the information with the others. ‘We have the freedom of speech and I can say whatever I will!’ is the argument. But what can this unlimited right to the freedom of speech result in? Friends will quarrel, families split in two, children leave their homes, neighbours have a fit and employees have a heart attack. We can admit that the morals are not fixed and are relative by nature, i.e. what was condemned by people a hundred years ago may be a common practice nowadays. Still, there are certain definite standards of behavior, which regulate interpersonal relations and thus make them more beautiful. And we cannot ignore these rules.

Political standards and the freedom of speech.

Political standards, as the name suggests it, regulate various types of political relations. This is a specific sphere of society, possessing its own peculiarities and a unique level of responsibility. A casual word may undermine a negotiation or result in a war. For politicians, the people acting on behalf of the state or a political party, the freedom of speech means something quite different than for ordinary people, having limited responsibility for their actions. Who cares if a shop-assistant calls the president a fool? At best, he would be supported or opposed by his colleagues, the rest paying no attention to the incident. What will happen if it is pronounced by the president of a country? There will be a scandal, which might take years to settle. We do not state whether the statement is true or false. We can only speak of the level of acceptability of such statements towards state officials. On the other hand, within a country politicians can be often criticized by their opponents. The practice of the European Court shows that the freedom of speech as far as politicians are concerned is much wider than when it affects common citizens. This can be traced in the case Castells versus Spain, where the verdict states exactly the same (23 April 1992, A, N236, pp.23-24, p.46). However, political standards play an important role in the life of society and the state and they should be taken into consideration, e.g. when enjoying one’s right to the freedom of speech.

The standards of traditions and religion. This is probably the most ambiguous sphere, which cannot be directly penetrated by the structures of human rights. For instance, W.Osiatynsky, when speaking of the threat for human rights by cultural customs and religious standards, admits the possibility, and even the necessity of their restriction. According to him, if the tradition is disputable, we can only resort to human rights in most extreme cases – when the tradition is really brutal, if it a threat for the lives of people or is denied by certain parts of the society. Otherwise, we can only speak of educational activities aimed at creating the conditions necessary for the adoption of universal standards and rehabilitating the victims of human rights violations, which are ready to accept it [5, 10]. These observations have much in common with the statement by the German philosopher Karl Jaspers, saying that freedom (i.e. human rights) comes into being only when Man is changing. It cannot be created with institutions in a society of unvarying people; it is connected with the nature of communication and relations between changing people [6, 271].

In other words, the issue of promoting human rights as a universal value depends on its place in the hierarchy of human values. If they do not fit in the axiological code of this or that civilization, it may take much time and effort to alter the situation. All the efforts to accelerate the process of inculcating human rights in the systems of values can result in their absolute rejection. Therefore, we have to be cautious and considerably restrict human rights in favour of traditions to achieve positive results in future.

There is one more thing worth mentioning – human rights formed within European, i.e. Christian, civilization. Therefore, their interrelation with other religions is considerably complicated and requires a sensible approach. As a matter of fact, when speaking of religious standards as a restraint of the freedom of speech, we should not forget that this restraint is two-sided. It affects both the adherents of a religion, which have to follow the duties of their religion, and the representatives of other denominations, as well as atheists, which have to respect the feelings of believers and restrict their right to the freedom of expression.

Legal restrictions

This part will also deal with the freedom of speech only. It will enable us to carry out a profound analysis of the issue of legal restrictions. Part3 of Article 19 of the International Covenant on Civil and Political Rights enumerates the following circumstances resulting in the restriction of human rights: ‘a. for respect of the rights or reputations of others; b. For the protection of national security or of public order (ordre public), or of public health or morals.

Part 2 of Article 10 of the European Convention for the Protection of Human Rights and Fundamental Freedoms states that freedoms may be subject to certain restrictions, which ‘are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.

For the sake of convenience, let us analyze restrictions in the following sequence: first, the restrictions mentioned in both of the above-mentioned treaties, then all the rest. The restrictions enumerated both in the Covenant and the Convention are aimed at the protection (safeguarding) of:

1. the reputation or rights of others;

2. national security;

3. public order;

4. health or morals.

As for the restriction of freedoms for the protection of the reputation and rights of others, none can deny the reasonableness of the restriction. What is the use of human rights if they violate the rights of others, and therefore can potentially violate our own rights? The freedom of speech cannot go beyond the limits of respect for the honour and dignity of others, since it would violate their rights, or even cause them suffer mentally. It would be appropriate to refer to the cases when public statements contain offending or slanderous accusations, which may undermine someone’s reputation. In such cases we cannot do without legal restrictions to protect the honour and dignity.

Speaking of national security, there are grounds for dispute on how much we can damage national security by our statements and disclosure of information. Besides, the government and secret services are often interested in accumulating secrets. It contributes to their significance and reputation in society. E.g. in Belarus any, even statistical data, are turned into a secret, criticism of the government before representatives of other states and international organizations being treated as disclosure of state secrets. However, this is a negative example of how the freedom of speech should not be restricted and in what disrespect for human rights may result. There are other examples: dishonest secret service agents sell information to terrorist organizations, high military officials inform enemy spies on planned operations. In such cases the smallest piece of information may result in mass killings, undermine the integrity of the state etc. All this says much for the necessity of restricting the freedom of speech, provided it resides within reasonable limits in a democratic society.

Protecting public order and the freedom of speech are not so contradicting to cause any significant problems. However, we cannot forget about disorderly conduct, including using foul language in public (as provided by the Administrative Code of the Republic of Belarus). The offence IS a threat for public order. Swearing is not a decent way of self-expression and realization of one’s right to the freedom of speech. Still, the restriction, as we can see, is based on both the morals and the law.

The protection of health and morals is, to a large degree, connected with restricting the freedom of speech. We have already touched upon some aspects of the issue, when speaking of moral standards. Still, it is not clear yet, how the freedom of speech can damage the health of individuals. It must be mental health that is affected. Assuming it is true, no one can deny the fact that it is sometimes necessary to restrict one’s right to the freedom of speech for the sake of another person’s health, say nothing of thousands. Anatoly Kashpirovsky’s psychotherapeutic séances, broadcasted all over the country and stimulating exacerbations in mentally instable persons, are still remembered by millions of people born in the Soviet Union. Another example is Orson Welles’ The War of the Worlds radio broadcast which resulted in mass psychosis and mental diseases among listeners.

Apart from the above-mentioned grounds for restricting the freedom of speech, the European Convention also lists the cases when restriction is necessary for the sake of ‘preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.’ In many countries, the legislation provides for criminal prosecution for disclosure of a closed adoption. However, it is impossible to allow for every possible case and certain kinds of information may be extremely personal to be open for public. The disclosure of such data normally results in negative consequences and may cause a mental trauma. That is why we can speak of the acceptability of such restrictions in a democratic state. As for the judicial branch, judges are human beings and can be influenced. With mass media beating the gun and predicting the verdict, judges would not always dare award a judgment that would run counter to the existing public opinion. The influence is a serious obstacle to justice.

Procedural restrictions. Speaking of legal restrictions, we cannot but mention the restrictions resulting from certain legal procedures. No one will deny the fast that legal procedures, judicial and other regulations are a guarantee against arbitrary decisions. E.g. a person cannot be forced to witness or prosecuted without constituent elements of offence. We have every reason to say that legal procedures significantly restrict the state in its desire to harass opponents and therefore protect human rights.

Nonetheless, we can say otherwise: legal procedures and other regulations restrict human rights. The question is how necessary these restrictions are.

Let us consider the following example: the court has knowingly given an illegal judgment, but the convict, having failed to submit a complaint to a superior body in due time, is deprived of possibility to rehabilitate his rights. What is to be done in this case? There are human rights on the one part and legal procedures on the other part. What is to be done when human rights are brutally violated, but the legislation does not provide for prosecution unless the victim submits a claim? In terms of the universal value of human rights, they should be protected even at the expense of destroying the world. But what will justice be like then? Will it be able to function, if the legal procedures restricting possibilities of protecting human rights are rejected? It is a difficult question. It is quite possible that many legal procedures need to be reviewed and made a little more flexible. Sacrificing such procedure requirements, the efficiency of justice may appear at risk. Some doubters will naturally ask why the European Court and the UN HR Committee do not accept complaints when formal procedures are violated. Indeed, why do quasi-judicial bodies, whose primary duty is to protect human rights, refuse to fulfill their task due to formal inaccuracies? Can we say it is only a desire to achieve the universal procedure of drawing up a communication? That is not the point. Though, at a close glance, we may admit that some requirements can be liberalized, e.g. providing for an option to re-submit the complaint to comply with the regulations. What IS significant, is that violations of procedures result in serious complications of work, or even make it impossible to process. Thus, we arrive at a conclusion that, when protecting human rights, both national and international quasi-judicial bodies have to resort to their restriction, in order to have possibility to secure a more efficient protection.

Conclusions

Having considered the issue of restricting human rights and the freedom of speech, in particular, we may state the following: firstly, restrictions of human rights and the freedom of speech, in particular, are caused by objective reasons of social activity of both individuals (the rights of an individual end where the rights of another individual start) and the society in general (social standards, which regulate social interrelations), as well as the state (the ‘authority-subordination’ connection, which restricts rights per se). Secondly, human rights are a very extensive category. Besides, it has numerous aspects of its meaning. Therefore, the wider understanding of the category, as well as its absolutizing, does not help solve the problem of the practical application of human rights protection mechanisms, and raise serious difficulties for the process. In this connection, there appears a necessity for a narrower treatment of human rights, i.e. introducing conceptual restrictions. In other words, the wider we understand human rights, the less opportunities for their protection in each concrete case we will have. Thirdly, it is impossible to consider human rights out of the context of civilization and culture. The existing social standards cannot be ignored even for the seemingly absolute value of human rights. Here we can speak of both temporary restrictions for the civilizations living according to certain standards, which contradict the concept of human rights, and permanent restrictions, caused by the priority of certain social standards over human rights standards (e.g. it would not be right to ignore morals for the sake of the freedom of speech). And, finally, the sphere of law likes precision, exact wording and clear criteria. Therefore, to transfer the initially political and philosophical category of human rights to the sphere of law, legislators, lawyers and human rights experts have to use a simplified model, which enables them to use human rights protection mechanisms in practice.

Vasil Paliakou

References:

1. Гоббс Т. Сочинения в 2 томах. Т.1. – М., 1989.
2. Локк Дж. Сочинения: т.3. – М., 1988
3. Новицкий М. Права человека. Что входит и что не входит в это понятие?
4. Новицкий М. Что такое права человека.
5. Осятыньский В. Права человека в перспективе XXI века.
6. Ясперс К. Истоки истории и ее цель // Антология мировой политической мысли. В 5 т. Т. II. Зарубежная политическая мысль. XX в. – М.: Мысль,1997.

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