[governance] rights of states (was Re: Reply to Milton's blog post)

Thu Dec 20 12:10:15 EST 2012

Some caution is due here, because there is a human right to the democratic
governance form in Article 21(3):

>(3) *The will of the people shall be the basis of the authority of
government;* this will shall be expressed in periodic >and genuine
elections which shall be by universal and equal suffrage and shall be held
by secret vote or by >equivalent free voting procedures.

However, because democratically-based "will of the people" governance is an
apparently "collective" right that is larger than just the individual right
to vote, there can be problems finding a person or entity with appropriate
standing to enforce this right. (Say, everyone was allowed to vote, but the
vote counts were corrupted using a few keystrokes on the results-tabulation
computer) This often leaves only states or governments acting through
things like Attorneys General with the power to do this. (Of course, one
must pray this AG is not corrupted)

One can readily see a rather large hole in this "protection" for democracy
when the state itself is denying democracy - it is a violation of Article
28 of the UNDHR which states:

   - Everyone is entitled to a social and international order in which the
   rights and freedoms set forth in this Declaration can be fully realized.

So long as the state is not corrupt, the state as a pledged representative
of the entire people is often superior to an individual as the agent to
vindicate collective democratic rights, since an individual may have
interests that are too narrow, fail to fully consider the rights of others,
or even be somewhat hostile to the democratic rights of the whole.  For
example: an individual litigant might not think that Minority X should
really have voting rights, or might settle a court case about a collective
right for a sum of money that, while satisfactory to this plaintiff, fails
to vindicate the collective right sued upon in any appropriate way.

Thus, while I easily see problems with states asserting collective rights,
I also see problems when states do not do so, because it will then often be
the case that NO ONE is available to defend or assert a human right that
might be seen as "collective" in nature.

Paul Lehto, J.D.

On Thu, Dec 20, 2012 at 4:40 AM, Norbert Bollow <nb at bollow.ch> wrote:

> Joy Liddicoat <joy at apc.org> wrote:
>
> > >>>> Collective rights are a recognised category under UN human
> > >>>> rights system. Why do you think that the collective entity of
> > >>>> a country should *not* have a right to international telecom
> > >>>> networks....
> >
> > Simply, under the UN human rights framework "the collective entity of
> > a country" is not recognised as a holder of human rights. Assertion of
> > other "rights" by a State (such as the sovereign "rights" of States to
> > defend it's own borders or private trade or treaty rights negotiated
> > between States) are quite different matters as they are not "human
> > rights". Since the Universal Declaration of Human Rights and the UN
> > Charter, these are in any event subject to human rights. I'm just
> > concerned to be sure that these different categories are not lumped
> > together as if they are all the same.
>
> Ok, let's be careful to not use words that could be interpreted as
> giving undue weight to whatever rights states have or claim to
> have.
>
> But IMO the fact remains that if country A takes some action that
> causes human rights of the residents of country B to be violated, that
> action of country A is a human rights violation.
>
> And I would not hesitate to assert that it is also a violation of an
> implied obligation that country A has towards country B under
> international human rights law.
>
> Even if, as I will gladly agree, states do not qualify as being
> entitled to human rights, I would assert that international human
> rights law implies the right of states to not be obstructed from
> fulfilling any of their various obligations which are recognized in
> international human rights law.
>
> From this perspective, I view it as not problematic at all that the
> revised ITRs "recognize the right of access of Member States to
> international telecommunication services", since when/if an
> entire country is cut off from access to "international
> telecommunication services", clearly that has a corresponding human
> rights impact on the people who live in that country.
>
> Quite on the contrary, if any country is not prepared to recognize that
> right of all other countries of access to what is called "international
> telecommunication services" in the ITRs, I would suggest that there
> should be international outrage and an international campaign of civil
> society to get the government of that country to change its position.
>
> Greetings,
> Norbert
>
> implying that any right giving the logical consequences of human
> rights on a country level in any way
>
>
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-- 
Paul R Lehto, J.D.
P.O. Box 1
Ishpeming, MI  49849
lehto.paul at gmail.com
906-204-4965 (cell)
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