A DICTIONARY OF HUMAN RIGHTS A DICTIONARY OF HUMAN RIGHTS David Robertson LONDON AND NEW YORK First published 1997 This edition published in the Taylor & Francis e-Library, 2005. “To purchase your own copy of this or any of Taylor & Francis or Routledge’s collection of thousands of eBooks please go to www.eBookstore.tandf.co.uk.” Second Edition 2004 Europa Publications Haines House, 21 John Street, London WC1N 2BP, United Kingdom (a member of the Taylor & Francis Group) © David Robertson 2004 ISBN 0-203-48688-9 Master e-book ISBN ISBN 0-203-59695-1 (Adobe eReader Format) ISBN 1-85743-207-X (Print Edition) David Robertson has asserted his moral rights to be identified as the author of this work. All rights reserved. No part of this publication may be photocopied, recorded, or otherwise reproduced, stored in a retrieval system or transmitted in any form or by any electronic or mechanical means without the prior permission of the publisher. Editor: Paul Kelly CONTENTS Acknowledgements vi Preface vii Alphabetical entries 1 Appendix 235 Magna Carta, 1215 236 Bill of Rights (UK), 1689 244 Bill of Rights (USA), 1791 247 Declaration of the Rights of Man and of the Citizen, 1789 249 Observations on the Declaration of Rights, from Thomas Paine, Rights of 252 Man, 1791 Preamble to the Constitution of the French Fourth Republic, 1946 253 Basic Law for the Federal Republic of Germany, 1949 254 Canadian Charter of Rights and Freedoms, 1982 261 Universal Declaration of Human Rights, 1948 269 International Covenant on Civil and Political Rights, 1966 275 International Covenant on Economic, Social and Cultural Rights, 1966 285 Convention against Torture and Other Cruel, Inhuman or Degrading 294 Treatment or Punishment, 1984 Convention on the Rights of the Child, 1989 299 European Convention on Human Rights, 1950 314 European Social Charter, 1965 321 Hungarian Constitution, 1949 323 Charter of Fundamental Rights and Freedoms (Czechoslovakia), 1991 330 v Israeli Basic Laws 342 South African Bill of Rights, 1996 345 ACKNOWLEDGEMENTS The author and publisher wish to give thanks and due acknowledgement to the following for their permission to reproduce texts of and from various of the documents which appear in the Appendix section of A Dictionary of Human Rights: The Press, Information and Communication Department of the Ministry of Foreign Affairs, Paris, France, for: the Declaration of the Rights of Man and of the Citizen, 1789; and the Preamble to the Constitution of the French Fourth Republic, 1946. The Press and Information Office of the Federal Government, Bonn, Federal Republic of Germany, for: the Basic Law for the Federal Republic of Germany, 1949. The Treaty Section of the United Nations Office of Legal Affairs, New York, USA, for: the Universal Declaration of Human Rights, 1948; the International Covenant on Civil and Political Rights, 1966; the International Covenant on Economic, Social and Cultural Rights, 1966; the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 1975; and the Convention on the Rights of the Child, 1989. The Publishing and Documentation Service of the Council of Europe, Strasbourg, France, for: the European Convention for the Protection of Human Rights, 1950; and the European Social Charter, 1965. The Parliamentary Institute of the Parliament of the Czech Republic, for: the Charter of Fundamental Rights and Freedoms (Czechoslovakia), 1991. PREFACE There are really three reasons for producing second editions of works like this. Obviously, with the passing of time, some entries simply become out of date and need changing to take account of real world developments. Equally obviously, though less often admitted, mistakes are inevitable, and a second edition allows one to correct these. And then there is the need to put in entries on topics or issues which either just did not exist when the first edition was written, or existed but were judged, wrongly or otherwise, not very important at the time. The second edition of this book contains changes, alterations, and additions arising from all three of these motives. But here is another reason I was glad to have a chance to do a revision; it is one that applies perhaps only to reference books of this rather unusual sort, consisting as it does of a series of small essays all written by one person. Because not only does the external world change and develop, but so does the author’s thinking. Over the last few years, as my other academic work has focused more purely on matters of constitutional law, I have had time to reflect. Furthermore, this reflection has been intensified by the very real changes in the human rights arena, and the change in the rate of change, the velocity, as it were, of human rights issues. Thus many of the alterations—and the vast majority of entries have been modified at least a little—come about because my thinking has developed. Often this is a matter of my adding new, and I hope more pertinent, examples; quite often it has been more a case of my judgement on the world of human rights changing. Sometimes this change has been one of increasing pessimism; entries on the United Kingdom’s record often reflect this. More often it is one of some excitement and optimism, as real world events have encouraged me to think that the world-wide protection of human rights has more of a hopeful future than I had thought in the middle of the last decade of the 20th century. Although the first edition of this book was published in 1997, it largely reflects both the real world of human rights, and even more my thinking about it in the early 1990s—there is an inevitable time lag before academics can write about and properly assess developments. In consequence, I neither knew much about, nor had time to assess, some of the most hopeful developments. (Nor had anyone else—this is no mea culpa section.) But some of the more depressing changes in, for example, the UK’s record on human rights under the Labour government elected in 1997 were equally unguessable. I could viii A DICTIONARY OF HUMAN RIGHTS guess, and did, that something like the Human Rights Act would be passed, but never dreamed that a Labour Home Secretary would seriously contemplate some of the restrictions on human rights that the man in office in 2004 can argue for. What, above all, was inevitably missing from the first edition was any proper assessment of the impact of the democratic transitions in South Africa and in Central and Eastern Europe. As they have, for the most part, been extremely positive, the overall tone of my additions and alterations is also positive. Legal and political concern for human rights was a hallmark of the immediate post-Second World War period, both within many political systems and, even more so, at the international level. In part this was because bodies like the United Nations, along with constitution-makers in countries such as Germany, able to start afresh, took human rights very seriously. Their concern for rights was not purely an expression of the sentiment that decent treatment and maximum freedom for individuals is clearly a good in itself; their analysis of the causes of war suggested that disrespect for human rights had major international repercussions. Much the same attitudes resurfaced with the ending of the Cold War, particularly among those who believe that liberal democracies are inherently un-warlike. The roots of this theory are very old, going back at least to Kant, if not to Rousseau. (Though the military activities of the USA, often eagerly supported by the UK, since the first edition of this book may make one doubt whether either of these thinkers would still maintain their optimism.) Political and cultural changes in the liberal democracies over the second half of the 20th century have all helped to focus awareness of discrimination, intolerance and all assaults on human dignity. They have also, perhaps, raised the standards we expect, so that the actual track record of these societies may not seem as good as their theory. Women, for example, remain badly underpaid in Europe nearly fifty years after the European Court of Justice first insisted on equal pay; not until the beginning of the 21st century did a senior British police officer introduce the idea that the police service was ‘institutionally racist’. These general changes coincided, more or less from the early 1970s, with an increasing activism by courts in many countries. Political systems, and that of the United Kingdom is an example, where the courts had a rather shameful record of subservience to the executive, are now increasingly proud of their public law. The change is international in the true sense, as it stems from an internationalization of legal culture, rather than a simple change that has occurred by happenstance and coincidentally in several countries. In large part this has come about from the growing importance of supranational legal entities such as the European Court of Justice and the European Court of Human Rights. It has occurred also because international concern for the human rights records of many countries became a significant factor in international relations during the 1970s and 1980s. Finally, the development has been accelerated by the collapse of the USSR and the end of its hegemony over Eastern Europe. Very frequently in the following pages it is the constitutional courts of Central and Eastern Europe, or of South Africa, which are cited, especially where they can be seen as major players PREFACE ix in this internationalization. One commentator has indeed published on the idea of a developing ‘Common Constitutional Law for Europe’, despite the fact that it is code law countries who are at the forefront. (It is because readers may not be sure of the relevance of my italicizing the words common and code here that this book is partly written.) Of course, rights always fall short of the ideal, and the successful attainment of rights itself promotes demands for further rights. No text book or survey on human rights or civil liberties published in any country is likely to be satisfied totally with the record of that country, and it is probably a subject where criticism is healthier than contentment. This reference book, a form of annotated dictionary, is for all those who are not legal experts and who want to get a quick grasp of basic issues in human rights discourse without either being blinded by the endless legal technicalities or forced to ignore them. One cannot dismiss legal technicalities and cut through legal language entirely, because rights basically are legal technicalities. What cannot be expressed with some clarity in a legal document will not be preserved and protected. Nevertheless, it should be possible to grasp the essence of the legal and constitutional debates without actually having a thorough legal education. Certainly one does not need to have practised law. It has always interested me that the courts most successful at protecting human and constitutional rights tend to be those where the judges are either politically selected, and may never have practised law, as in the USA, or expressly do not come from the professional judiciary, as in most of continental Europe. There are a few necessary points of explanation. First, I have used the phrase ‘human rights’ as though it were interchangeable with ‘civil liberties’ and ‘civil rights’, purely to give some stylistic ease from endless repetition. There are those who think there is a crucial theoretical difference between the concepts, but I am not one of them, and I hope that in the rare case where something important might follow from the distinction, the context of my usage will make the difference clear. Similarly, I have used some analytic concepts in slightly idiosyncratic ways as expository tools; the most important is the use I make repeatedly of the distinction between positive and negative rights. My usage does not accord with that of some other writers, but I have explained what I mean by the concepts in separate entries, and have found it a labour-saving device for me in writing, as I hope it will be in reading. Where I have elsewhere used concepts or labels other than in the normal sense, to the extent that there is a ‘normal’ sense, I have tried to make this clear. This is not a creative or original work, and I have not sought to establish some particular substantive position of my own in my choice of terms. There are inevitable choices, of selection and emphasis, that have to be made in any book such as this, and the choices cannot be entirely neutral. The bias, if that is the right word, I am most aware of is my own preference for taking rights to mean largely political and constitutional entitlements and freedoms, rather than economic- and social-need satisfactions. I am entirely aware of the school of thought that holds these latter to be more