Human Rights Are an Ongoing Process

FROM NATURAL LAW TO THE AMERICAN, FRENCH AND UNIVERSAL DECLARATIONS, TO THIRD AND FOURTH GENERATION DECLARATIONS: THE PROTECTION OF HUMAN RIGHTS IS AN ISSUE THAT IS CONTINUOUSLY EVOLVING. BUT THE WAGER, AS BOBBIO SAID, IS TO FIND A WAY TO RESPECT THEM

by Paola Gaeta, Dept. of Law, Bocconi
Translated by Jenna Walker

A poem by Fernando Pessoa talks about two chess players, who, “when in Persia/There was I don’t know what war/When the attack on the City burned,/And the women screamed,…/played/An eternal game.” For Pessoa, these two players, who did not care about what happened to their city, destroyed by the enemy, represent the way in which some or perhaps many of us spend our lives. Our lives absorb us, much like when playing chess, but are really nothing. Because the serious and difficult things are elsewhere, and our life is at times only a chessboard of our indifference.

The stories and videos in this issue of Via Sarfatti 25 narrate another story. It’s a story made up of all the people at Bocconi and elsewhere, in a variety of many other places, participating in a large project: that of developing and respecting human rights. It is a project with distant roots. It began with the philosophical ideas of proponents of natural law such as John Locke, who believed that human beings by nature are endowed with inalienable rights. It continued with the Declarations from the US and the French Revolution that established the foundation of this large project on positive law. The two Declarations strongly proclaimed a new model for society, where the state is no longer the ends but rather the means for reaching and benefiting from the rights that all men and women are endowed with by nature, being born free and equal. As Bobbio has explained, with this transition – which has been so important for the creation for the modern democratic state – the rights conceived by proponents of natural law lost something. Colliding with the reality of positive law, they fragment: the Declarations in fact postulated the rights of citizens towards the state, and not of humans as such; and, in addition, these rights exist only if recognized by this or that state, not on a universal level.
 
The fourth generation

More than one hundred years were needed after the US and French Declarations, after two world wars and the atrocities committed by Nazi Germany against German Jews who were deprived of their citizenship, to proclaim the universality of human rights and start on the path towards their recognition at the level of positive law internationally. The Universal Declaration of Human Rights, adopted by the United Nations General Assembly on 10 December 1948, was the first and therefore the most important step in this direction, even though it is a legal instrument that is not legally binding for countries. Today, there are many international regulations of a binding nature that have clarified and developed the rights proclaimed in the 1948 Declaration. These rights include rights of the person as such (such as the right to life), rights of the person in relation to others (e.g. the right to privacy and religious freedom), political rights (such as the freedom of thought and the right to vote and stand for election) and, lastly, economic and social rights (such as the right to fair compensation for work). Other international regulations have guaranteed other rights that were not included in the 1948 Declaration. This is because the creation and recognition of new rights has come about at the same pace as the progress of humankind controlling nature, things and other human beings. It could not have been otherwise: threats to individual freedom have arisen out of technical and scientific progress, which did not exist in the past, and which therefore have required new protections or remedies. Today there are also third and fourth generation rights, such as the right to live in a pollution-free environment or rights that have been created and may still arise due to progress in genetic manipulation. Therefore, the expansion of the catalogue of human rights, which has gone beyond the 1948 Universal Declaration, is hypothetically an infinite process, dictated by eternal changes to society.
 
Bobbio’s wager

The point is not, however, to place limits on the development of rights. This would negate the very foundation of the doctrine of human rights, according to which rights arise (or should arise) any time that there is a need to protect individuals from the risk of oppression by society and to guarantee their full integration in society itself. What really matters, and is daunting, is how to make sure that the proclaimed and guaranteed rights are then truly respected. Because all over the world, and perhaps even in our own backyard, there are rights that are being infringed upon. The answer certainly does not lie in the solitary indifference of the chess players, but I believe it lies rather in a wager, as Bobbio says. Because anyone who bets on human rights, is at least confident of winning. But if there is not even the least bit of confidence, they lose even before they start. And as Bobbio says, citing Kant, “just concepts, great experience and above all good intentions” are required in order to place a wager.