International Law, Human Rights and Public Opinion

The Role of the State in Educating on Human Rights Standards

Heping Dang

• Editorial: Routledge
• Año: 2017
• ISBN:
  9781317073567
• Edición: 1
• Categoría: Law
• Categoría: Law Theory & Practice

This book explores situationsin whichpublic opinion presents itself as an obstacle to the protection and promotion of human rights. Taking an international law perspective, it primarily deals with two questions: first, whether international law requires States to take an independent stance on human rights issues; second, whether international law encourages States to inform and mobilise public opinion with regard to core human rights standards. The discussion is mainly organised within the framework of the UN system. The work is particularly relevant to situations in which public opinion appears as discriminatory attitudes based on race, gender, age, health, sexual orientation and other factors. It is also pertinent to circumstances in which public opinion is responsible for the existence of certain harmful customs and practices such as female genital mutilation and capital punishment. Noting that the death penalty is increasingly recognised as an infringement of human rights, this study further challenges States' argument that capital punishment cannot be abolished because of public opinion. The book also discusses the role that education bears under international law in moulding favourable attitudes towards human rights. Finally, the book challenges States' acceptance that public opinion cannot be confronted in this respect.

1 Introduction

Issues and methods

It is without dispute that public opinion does not always coincide with the principles of human rights. Such opinion includes attitudes that discriminate against people based on race, gender, age, health, sexual orientation and other factors. It is closely associated with violence against people belonging to a particular group, including harmful customs and other practices that target women and children especially. If nothing is done to mobilise societal attitudes, this type of violence and its accompanying practices will never be eradicated and equality cannot be achieved. States typically cite public opinion as the reason to maintain certain practices that are increasingly being recognised as infringements on human rights, with the death penalty being at the vanguard. Confronting these situations, this book raises the question as to whether human rights should be confined to the development of public opinion, in the sense that human rights provisions are often bifurcated to the oversimplified statement that ‘the public is in favour or not in favour of such provisions’.

The concept of public opinion has a long history, emerging during the Enlightenment and coming into widespread discourse in the eighteenth century.¹ Ideas about public opinion became dispersed throughout eighteenth-century philosophy, drawing also on Renaissance literature and the works of Plato and Aristotle.² Notable philosophers such as John Locke, Jean-Jacques Rousseau and Jeremy Bentham all embedded the idea of public opinion in their respective works of Two Treatises of Government,³ The Social Contract⁴ and The Book of Fallacies.⁵ Public opinion has been studied and explored from the spectrum of social inquiry and it is present in the arguments of democratic theorists and social critics,⁶ soci ology and social psychology,⁷ and empirical studies on the effects of mass media.⁸

The concept of human rights was also developed during the Enlightenment era, although its historic roots can be traced to the Cyrus Cylinder of 539 BC. The Cyrus Cylinder is recognised as the first charter of human rights, declaring that all people had the right to choose their own religion and establishing racial equality. The concept of human rights is not wholly, but to a considerable extent, legal.⁹ Historically, it has been propagated through the Magna Carta (1215), the Petition of Right (1628), the United States Declaration of Independence (1776), the Constitution of the United States of America (1787), the French Declaration of the Rights of Man and of the Citizen (1789), the Bill of Rights of the US Constitution (1791), the First Geneva Convention (1864) and the Charter of the United Nations (1945). Human rights experienced a major advancement in the landscape of international law after World War II and the establishment of the United Nations in 1945. The starting point of this boom came from the adoption of the Universal Declaration of Human Rights in the United Nations General Assembly on 10 December 1948. The Universal Declaration of Human Rights represents the first global expression of the rights to which all human beings are inherently entitled.¹⁰

There has been a plethora of literature scrutinising how public opinion views human rights and how these opinions vary. Many studies have tried to describe public opinion concerning one or several human rights issues at a given time. Others intended to monitor the shift of public opinion over the course of relatively long periods of time, simultaneously exploring the factors that had contributed to the change. Based on their observations, these studies put forward strategies designed to mobilise public opinion toward the protection and promotion of human rights. The vast majority of research has been carried out to analyse public opinion. Its centre of mobilisation in regard to human rights has been around issues such as racial discrimination,¹¹ immigration policies,¹² women’s advancement,¹³ the rights of persons with disabilities,¹⁴ children’s rights,¹⁵ gay rights,¹⁶ discrimination based on weight,¹⁷ mental illness,¹⁸ HIV and AIDS,¹⁹ schizophrenia,²⁰ eating disorders²¹ and alcohol or drug addiction,²² abortion,²³ euthanasia,²⁴ and criminal justice and punishments,²⁵ particularly the retention of the death penalty.²⁶ Most of the research was carried out in the area of political science and sociology.

The language of human rights, if not human rights per se, is nearly universal.²⁷ Governments everywhere claim to believe in and respect the dignity and the basic rights of their peoples. For the majority of the world’s States, as noted by Johannes Morsink, ‘there is not a single nation, culture, or people that is not in one way or another enmeshed in human rights regimes’, except small areas such as Taiwan, Northern Cyprus, Kosovo and Occupied Territories.²⁸ David Weissbrodt claimed that ‘international human rights is the world’s first universal ideology’.²⁹ Granted, a continuing debate exists regarding the universality of human rights.³⁰ For instance, Rhoda Howard has insisted that ‘most known human societies did not and do not have conceptions of human rights’.³¹ Regardless of this debate, international landscapes have been profoundly changed and scattered with human rights protocols, conventions, treaties and derivative declarations of all kinds following the adoption of the Universal Declaration of Human Rights in 1948.³²

Considering this situation, this book questions how international human rights law perceives public opinion and whether it demands that public opinion be mobilised in order to protect and promote core human rights. The book focuses on the duties of States in the mobilisation of public opinion, as they bear the primary responsibility to protect and promote human rights. States are parties with the ability to sign and accede to human rights treaties, and subsequently to implement these treaties and other relevant declarations and recommendations. However, often many States label public opinion as the reason why human rights are moving forward at such a slow pace or cannot move at all. This work challenges the legitimacy of State assertions that public opinion is immutable with regard to core human rights standards. It explores the issue of whether States should remain indifferent to public opinion on core human rights issues. Advancing from this debate, the book also examines to what extent States have a duty to mobilise public opinion in favour of fundamental human rights. It is conceded that the second question is certainly harder to answer in favour of human rights, but the examination of this issue is of particular relevance to human rights predicaments in the modern age.

To answer the two questions, this current work thoroughly examines UN mechanisms. It scrutinises the major treaties and related declarations, their travaux préparatoires, the material generated by these treaties such as periodic reports, concluding observations and general recommendations, other historical legal documents and the newly established mechanism – the Universal Periodic Review. Among these mechanisms, the Universal Periodic Review was relatively new, created by the United Nations General Assembly in 2006 and its first session started in 2008.³³ However, this mechanism is quite unique as every UN member State, whether big or small, bound by certain conventions or not, has to answer the question of how it fulfils its human rights obligations and commitments. In practice, States often answer questions that they are not bound to respond to by human rights treaties. For instance, China is not a party of the International Covenant on Civil and Political Rights, but it replies to questions regarding capital punishment in the process.³⁴

Reservations exist regarding the role of the travaux préparatoires of human rights instruments in their interpretation. Addressing this issue, the Vienna Convention on the Law of Treaties lists preparatory work of a treaty as a supplementary means of interpretation only when other methods leave the interpreted meaning ambiguous or obscure, or lead to a result that is manifestly absurd or unreasonable.³⁵ In practice, the travaux préparatoires of international legal instruments are regularly consulted by courts without much insistence on the exhaustion of other techniques of interpretation. For instance, the International Court of Justice has often used the travaux to ‘confirm its reading of the relevant texts’.³⁶ Of course, there exists inevitable objection to relying on the drafting history to interpret treaties. In this regard, Alejandro Alvarez submitted to the International Court of Justice that: ‘a treaty or a text that has once been established acquires a life of its own. Consequently, in interpreting it, we m...