“Os direitos do homem devem ser formulados em termos que reconheçam sua relatividade, e a instrumentalizaçõa de cada direito deberá se desenvolver de forma independente e gradual, à medida que a comunidade mundial for se tornando apta à solidariedade e à organização”. É com essas palabras que o cientista político norte-americano Quincy Wright (1890-1970) conclui sua resposta à pesquisa da UNESCO sobre os fundamentos filosóficos dos direitos humanos (UNESCO's survey into the philosophical foundations of human rights), enviada em junho de 1947 con o título Relationship between different categories of Human Rights (Relações entre diferentes categorías de direitos do homem, em tradução livre). Veja um trecho em inglês.
Philip Quincy Wright
Human rights suggest rights which are alike for all human beings. Yet it is recognized that much of human nature is a product of the particular culture in which the individual has developed. Consequently, if all men have something in common which might provide the basis for a universal bill of human rights, it must reside either in common biological, psychological, or spiritual characteristics which persist in spite of cultural differences, or in those common elements of the many cultures which may be regarded as a world culture. The approach to human rights may, therefore, proceed from the analysis of the individual short of all culture, the seventeenth-century concept of the “state-of-nature”, or from the analysis of world culture to be found by abstracting those common elements in all cultures.
From the first point of view, the biologists tell us that all men share with the higher animals desires of varying intensity for life, for food, for sex, and for dominance. The psychologists add the desire for a home territory, for personal freedom, for movement and for society. The theologians and philosophers often insist that all men have also a sentiment of religion and a capacity for abstract thought, although some would derive this sentiment and capacity from culture rather than from original human nature.
From the second point of view, the sociologists and historians find in most cultures the germs of a recognition that human beings as such should be accorded some respect, that each personality should have some sphere of freedom to develop its own genius, that men can discover truth by observation and reason, and that compromise with persons of different cultures is possible. As civilization has advanced, these principles have been more precisely recognized. The value of some form of human equality, of some measure of individual freedom, of the application of scientific method, and of toleration for cultural and personality diversities have been elements in the world civilization which emerged with the development of contacts among all parts of the human race after the sixteenth century. These values were also recognized, in part or in whole, by earlier civilizations. Most of them also figure in the great religions, although religions have given greater emphasis to the specific religious value of mystic identity of the individual with the universe, or with the ruler of the universe, than to these more humanistic values.
To assert that men are men and that all cultures have something in common is far from a formulation of rights which may protect the needs and desires of men and may secure for all the values recognized by world culture. Any such formulation encounters circumstances in which individual needs and desires conflict with one another, or with universal values, and even circumstances in which universal values conflict with one another.
Every formulation of a human right that has been suggested raises the following issues: 1) of man versus the group; 2) of group versus group; 3) of group versus the world. These issues necessarily arise in the formulation of a bill of human rights and even more in the establishment of institutions and procedures for the enforcement of such a bill. If the final interpreter of human rights is the individual, society may dissolve in anarchy. If the final interpreter is the group, world society may dissolve in international or class war. If the final interpreter is the world, lesser groups may disappear and a universal tyranny may be possible. Consideration will be given successively to these three basic dilemmas in the formulation of human rights.
Man versus the group
The issue of man versus the group was vigorously presented in the first meeting of the United Nations Human Rights Commission in February 1947. According to Mr Ribnikar of Yugoslavia: “The new conditions of the economic, social and national life of our time have tended to develop the spirit of collectivity, and the conscience, and the solidarity of the popular masses. We are more and more aware that real individual liberty can be reached only in perfect harmony between the individual and the collectivity. It becomes quite obvious that this common interest is more important than the individual interest, and that man can liberate himself only when the mass of a population is free.
“In our time the social principle comes first. If it has one purpose, it is to create conditions necessary to the fulfilment of the interest of every individual. The social ideal is the ideal of the enormous majority of the world and it is in the identity of the interest of society and of the individual. Therefore, when we desire to speak today of the rights of man, of modern men, we must not think of the social ideal or of a political ideal of another age. This ideal belongs to the past, and if it remains in some countries, it is the ideal of one class only of a society…”
On the other hand, Dr Malik of Lebanon said:
“...the very phrase "human rights," obviously refers to man, and by "rights" you can only mean that which belongs to the essence of man, namely, that which is not accidental, that which does not come and go with the passage of time and with the rise and fall of fads and styles and systems. It must be something belonging to man as such. We are, therefore, raising the fundamental question, what is man? And our differences will reflect faithfully the differences in our conceptions of man, namely, of ourselves...
“The individual human being, you and I, today may not be in need of protection against the despotism of the individual. The day of individual dictators and tyrants may be passed. But if man is no longer in need of protection against the tyranny of kings and dictators, he is desperately in need of protection against another kind of tyranny, in my opinion equally grievous.
“There has been rising in the last few decades a new tyranny, the tyranny of the masses, which seems to have an inevitable tendency of ultimately embodying itself in what I might call the tyranny of the State. If there is any danger to fundamental human rights today, it is certainly from that direction...
“The real danger of the present age is that social claims are in danger of snuffing out any real personal liberty. It is not social security and responsibility that are going to lack advocates and therefore expression in our bill. It is rather the questions which relate to personal values and freedoms.
“May I express that what I ultimately mean is this. I am not setting an artificial antithesis between the individual and the State. I am asking this question. Which is for the sake of the other? Is the State for the sake of the human person or is the human person for the sake of the State? That, to me, is the ultimate question of the present day. I believe the State is for the sake of the person and therefore our Bill of Rights must express that for the sake of which everything else exists, including the States.”
This debate makes it clear that in spite of the effort of the sociologists to synthesize the individual personality and group culture, the potential conflict between the individual and the group emphasized in Herbert Spencer's Man versus the State has not been solved. Those who adhere to the Socialistic view expressed by Mr Ribnikar emphasize social and economic rights such as the right to work, the right to fair conditions of work, the right to social security, the right to education, or in more general terms the rights to freedom from fear and from want. On the other hand, those who share the individualistic thesis expressed by Dr Malik emphasize civil and procedural rights such as the rights of conscience and free speech, rights of association and property, rights of movement and choice of occupation, the right to prompt and fair trial for alleged transgressions of law, and the right to be governed by laws which do not discriminate arbitrarily – rights which contribute to the individual freedom of religion, opinion, expression, and action customarily guaranteed in the eighteenth-century bills of rights. It is to be observed that these rights were usually expressed in universal terms, whereas the social and economic rights which have often figured in the bills of rights of twentieth-century constitutions usually apply only to nationals of the State. This perhaps indicates that the economic and social rights are less susceptible to universalization than are the more individualistic rights.
Most of the international bills of rights which have been proposed by private organizations during the last few years include both of these types of rights, and it may be that the alleged incompatibility between them has been exaggerated.
It is true that States which emphasize social and economic rights have frequently neglected civil and procedural rights in practice. An emphasis upon individualistic rights has also led to problems.
Modern States have generally recognized the need of compromise of individual interests and social interests, and have sought to give some protections by law to both of these interests. Twentieth-century Constitutions usually guarantee both of these types of rights to their citizens. They have, however, usually expressed both types of rights relatively rather than absolutely. Furthermore, they have recognized that the method of implementation of these different types of rights must be different.
Individual rights are in the main correlative to negative duties of the State, and social rights are in the main correlative to positive duties of the State. Individual rights require that the State abstain from interference with the free exercise by the individual of his capacities, while the social rights require that the State interfere with many things the individual would like to do, by the collection of taxes, the exercise of police power, the regulation of economic activities, and the administration of public services. Individual rights can, therefore, in large measure be enforced by judicial action, declaring laws and administrative decrees which violate them null and void. The social rights, on the other hand, require legislative, administrative, and executive action to make and to enforce new laws. The individual rights might, therefore, be expressed in an international bill of rights as rules of law susceptible of judicial application, while the social rights can only be expressed as goals or principles for the guidance of national or international legislation, or of international cooperation or administrative activity. Consequently, if both types of rights are included in a common statement, it should be understood that no common mode of implementation would be possible. The international bill of rights would be a declaration of purposes rather than an effective rule of law.
Even in this respect, however, the differences between the two types of rights may be exaggerated. Individual rights, while primarily correlative with the State's duty of abstention, may also require positive State action in establishing and maintaining courts with adequate jurisdiction and in providing criminal legislation and administration to prevent other individuals within the community from encroaching upon these rights. The maintenance of all human rights in the modern interdependent world also requires suitable international agencies and procedures to assure that States observe both the negative and positive duties correlative with the rights.
These considerations suggest that the initial statement of human rights should be in the form of a declaration by the appropriate authorities of the world community, stating the rights but without any formal provision concerning their implementation. It should be assumed that in application the rights are to be regarded as relative to one another and that each is to be implemented by appropriate and perhaps different methods of national and international activity.
Group versus group
The issue of group versus group was less discussed in the meeting of the Commission on Human Rights than was the issue of individual versus group, but this potential conflict underlay the discussion as indicated by a statement of Mr Mora of Uruguay:
“The traditional bills of rights have a national character. It seems to me that in the twentieth century we must emphasize the international human rights, the international rights of the man.
“The classic doctrine says that only States are subject to international laws. We need now to declare that man is the most important element of any kind of law, national or international.”
Why did the doctrine develop that only States are subject to international law and that individuals are subject only to national law? It was not because of a socialistic opinion that the group should dominate the individual, but because of the necessity of ultimate State control of its subjects in order to protect the State from outside States. […]
It is clear that this argument, which objects to human rights on the ground that their enforcement by a world authority would qualify the freedom of the State in its international relations, is likely to prevail so long as conditions of power politics and the demand for the absolute autonomy of the national government, economy, and culture prevails. Confidence that the United Nations can assure security to all States may be a condition for the effective implementation of human rights. So long as international emergencies may develop in which State survival may depend on State unity, the State will hesitate to surrender ultimate control of the law applicable within its domain.
But in an interdependent world, security through even the most able playing of power politics may be impossible. Security may be obtainable only through collective security, and that may be obtainable only through the development of the world community. This, in turn, may imply the universal recognition and maintenance of human rights. World institutions which can give security may be impossible unless the world community develops a common culture and common standards of human rights.
The universal maintenance of human rights may create conditions in which these relations between groups may become ones of cooperation and the expectation of peace. The rules of international law, which have defined the relations of State to State, must develop to meet this new situation. The rights of States must be considered relative to the rights of individuals. Both the State and the individual must be considered as subjects of world law and the sovereignty of the State must be regarded not as absolute, but as a competence defined by that law. Such a development, however, implies that the world community is sufficiently organized and sufficiently powerful to assure the security of States under law.
Group versus the world
The issue of the group versus the world is recognized in the somewhat conflicting clauses of the United Nations Charter. On the one hand, the Charter forbids the intervention of the United Nations in matters which are essentially within the domestic jurisdiction of any State (Article 2, paragraph 7) and on the other hand, it pledges all the members to take joint and separate action in co-operation with the organization for the achievement of universal respect for, and observance of, human rights and fundamental freedoms for all, without distinction as to race, sex, language, or religion (Articles 55, paragraph C; 56).
Does this mean that United Nations action to protect human rights is by the Charter placed outside the prohibited sphere of domestic jurisdiction of States? Or does it mean that the protection of human rights is at the mercy of the interpretation and exercise by each State of its domestic jurisdiction?
The resolution of the General Assembly in December 1946, on the Indian complaint that South Africa was denying human rights to Indians within its territory, suggests the former interpretation. This interpretation is also suggested by the provision of the Nuremberg Charter, sustained as a general principle of law by the Nuremberg Tribunal, that “act of state” cannot protect individuals indicted for offences against the law of nations.
Experience has shown that States cannot in all circumstances be trusted to respect any standard of rights within their own territories. Barbarities against minorities have in recent years shocked the conscience of mankind. If human rights are to be respected, the United Nations must be armed with competence and with means of enforcement which will modify past conceptions of the sovereignty of the State in the world community. Clearly the law of the Charter of the United Nations which seeks to define the relation of States to the world community must develop appropriate compromises between the domestic jurisdiction of the States and the competence of the United Nations to maintain human rights. The responsibility of the State and the power of the United Nations must be so interpreted as to give assurance that every individual will enjoy human rights.
The considerations set forth in this memorandum suggest that in the drafting of an International Bill of Human Rights, absolutistic concepts of the individual, of the State, and of the world community must be abandoned. The individual and the State, though distinct, are related to one another and this relationship varies with conditions. Among these conditions is the relation of the State to other States and to the world community.
Human rights can only be defined if due consideration is given both to the original nature of man and to the contemporary standards of world civilization. Any definition of human rights can, however, be implemented as law only if the relationship of each right to the requirements of the State and to the authority of the United Nations is recognized. The functions of the State in protecting the values of the national culture, in organizing social experiments, and in maintaining national solidarity must be recognised. The functions of the United Nations in coordinating national cultures within the world culture, in organizing international cooperation for human welfare and progress, and in maintaining international and world law can develop only gradually. Human rights must be stated in terms which recognize their relativity, and the implementation of each right must develop independently and gradually as the world community develops in solidarity and organization.