Freedom from Fear and Want in the Context of International Human Rights Law - Essay Example

? An Analysis of Freedom from Fear and Want in the Context of International Human Rights Law Introduction Freedom from fear and want appear to be unattainable aspirations. It is perhaps unreasonable to expect to live a life free of fear and want, unless the individual shares the upper echelons of society. However, freedom from fear and want have always been described as fundamental human rights that should be guaranteed by states. The connection between freedom from fear and want with human rights is based on concepts of human security and human welfare. Essentially freedom from fear is a manifestation of the trend toward aligning human security with fundamental human rights at international law (Bahakar, 2010). Likewise, freedom from want adds to existing international human rights by extending fundamental liberties to include welfare as an arm of fundamental human rights (Young, 2009). On its face, the inclusion of human security and welfare as an arm of international human rights is certainly consistent with developments in modern times particularly with respect to international poverty and international conflicts and terrorism. However, making human security and welfare a fundamental human right poses some problems with respect to protecting welfare and security and safeguarding other fundamental freedoms which may necessarily be contravened in the interest of promoting freedom from want and security (Posner, 2008). This paper examines freedom from fear and want, in international human rights and how these security and welfare rights may conflict with other fundamental human rights. It is argued that in order to expand the realm of international human rights to include welfare and security rights, some trade-offer is necessary. The compromise between freedom from fear and want and other fundamental freedoms are examined and analysed. Freedom from Fear and Want as an International Human Right International human rights are contained in the International Bill of Human Rights or any instruments implemented by the UN General Assembly (UN Human Rights Office of the High Commissioner for Human Rights, 2008). The International Bill of Human Rights includes the Universal Declaration of Human Rights 1948 (UDHR) and two covenants that followed: International Covenant on Civil and Political Rights 1976 (CCPR) and the International Covenant on Economic, Social, and Cultural Rights 1976 (CESR) (Meron, 1986). The International Bill of Human Rights has been expanded via a number of subsequent declarations, covenants and protocols internationally and regionally (Smith, 2007). It may be misleading to think of international human rights as an international Bill of Human Rights because in the absence of a centralized system of enforcement, the recognition and enforcement of an international Bill of Rights are only as good as the national state’s implementation and enforcement of those rights. It is one thing for a national government to recognize an international Bill of Human Rights and quite another for a national government to implement and enforce an international Bill of Human Rights. Even more uncertain is the economic ability of a national government to guarantee that citizens within its territories are accorded freedom from fear and want as legitimate arms of the international Bill of Human Rights. Be that as it may, it has been argued that the idea of international human rights was initially articulated by US President Franklin Delano Roosevelt in his “Four Freedoms” address to Congress on December 10, 1948. During that address, Roosevelt stated that his political aspirations were built around pursuing a social and political environment in which the “world” would be secure enough to safeguard four specific freedoms: the freedom of expression, religion, from want and fear (Power & Allison, 200, p. 4). Freedom of religion and freedom of expression are more easily achieved as the cost of enforcing free expression and free religion is arguably quite low compared to the cost of ensuring freedom from fear and want. It is important however, to take note of the circumstances in which Roosevelt spoke of freedom from fear and want. It was in the Atlantic Charter of 1941 that Prime Minister of Great Britain, Winston Churchill and Roosevelt articulated their early World War II goals as world peace once the war eventually ended. It was stated that the allied leaders anticipated “peace which will afford assurance that all the men in all the lands may live out their lives in freedom free from fear and want” (Power and Allison, 2000, p. 4). It might at first glance appear that even prior to the implementation of the International Bill of Human Rights, freedom from fear and want were aligned with fundamental human rights. However, at the time, the allied leaders were embroiled in a war that devastated much of Europe and citizens were understandably living in fear and want as a result. Thus, it can be argued that the idea of freedom from fear and want originated out of the desire to prevent wars and its devastating consequences for all those involved directly and indirectly. The UDHR which was implemented after the Second World War built on the theme expressed in the four pillars of freedom and sought to address much of the underlying socio-political factors that culminated in the atrocities of the War and its aftermath. Thus, the four pillars of freedom as originally articulated by Roosevelt are reflected in the UDHR of 1948. The Preamble to the Universal Declaration of Human Rights 1948 states that among mankind, the most desired outcome is freedom of expression and conscience as well as “freedom from fear and want” (UDHR 1948, Preamble). Thus historically, freedom from fear and want has been universally recognized as a basic and fundamental human right, and necessary for safeguarding against the kinds of social and political unrest that disturbs world peace. In other words, the fact that it has been given expression in the founding charter of the UN following the Second World War demonstrates that freedom from fear and want is perceived as a prerequisite for preventing unrest and eventually war. An examination of the UDHR speak to the assumption that if fundamental human rights are identified and enforced, the world would avoid the kind of conflicts that eventually lead to a breakdown in society and in international relations and thus war. Thus freedom from want is expressed in terms that are designed to ensure that citizens are content and do not threaten to disturb social order. In this regard, throughout the UDHR freedom from want is expressed in terms of safety and security generally and social security and/or welfare. Article 3 of the UDHR 1948 goes on to state that “everyone has the right to life, liberty and security of the person” (UDHR, 1948, Article 3). These are very broad rights and can be looked upon as the right to freedom from fear as much as freedom from want. State are arguably required to ensure that individuals are at liberty to live their lives without having to fear excessive or arbitrary intrusion by state officials and threats to life, limb and freedom from both internal and external actors. At the same time, Article 3 imposes upon contracting states to take steps to ensure that individuals within its territories are provided with adequate facilities to live their lives reasonably comfortably. Article 22 of the UDHR goes on to state that all members of society have the inalienable right to “social security” proportionate to the “resources of each State of the economic, social and cultural rights indispensable for his dignity” (UDHR, 1948, Article 22). Article 22 of the UDHR therefore leaves open the possibility that some states may not be able to provide for freedom from want. Proportionality recognizes that some states may have more than enough resources to provide social security while other states may not. Thus Article 22 of the UDHR imposes the duty on states that have the means to provide social security and relieves states that do not have the resources of the duty to safeguard against freedom from want. It can therefore be argued that freedom from want is not a universal right, but a national right only in so far as the contracting state is economically able to safeguard against freedom from want. Article 25 of the UDHR contradicts Article 22 of the UDHR by failing to mention the question of proportionality. In this regard, Article 25 confers upon the individual the right to live in a society in which there are appropriate facilities for maintaining his or her physical and mental wellbeing and this would include access to food, accommodations, health care, welfare services and sustenance in general (UDHR, 1948, Article 25). Thus security in this regard is expressed as state assistance for those who are unable to provide for their own welfare in terms of health and the basic needs for surviving comfortably. The state’s duty is apparently absolute, regardless of the state’s ability to provide for these basic needs. In this regard, Article 25 by unrealistically requiring all states to provide public assistance to its citizens is an administratively unenforceable mandate. If a state is unable to provide the resources to ensure that its citizens are free from want, the state in question is not in a position to give effect to Article 25 of the UDHR. Security is also expressed in terms of freedom from fear under UDHR Article 28. Under Article 28, all persons are “entitled to a social and international order” so that they may freely exercise their “rights and freedoms” as provided for in the UDHR (UDHR, 1948, Article 28). Thus, Article 28 of the UDHR recognizes that fundamental freedoms are of no avail unless and until national and international security promotes and maintains peace. In this regard, freedom from want and fear correlates with physical and mental peace and are perceived as necessary prerequisites to the enjoyment of fundamental human rights. Once again, freedom from fear, like freedom from want depends in large part on a state’s ability to safeguard against social and international disorder. The Preamble to the CCPR 1976 expresses a view similar to the view expressed in Article 28 of the UDHR. The Preamble of the CCPR specifically states that pursuant to the UDHR, freedom entails the ability to fully give effect to freedom from fear and want, there must be an environment in which the individual is free to enjoy political, economic, social and cultural freedoms and rights (International Covenant on Civil and Political Rights 1976, Preamble). Therefore, it is not the state’s obligation to directly provide freedom from fear and want. However, the state must provide a political and social environment in which individuals are in a position to safeguard against political, social and economic factors that would suppress freedom from fear and want. Essentially, the state’s obligation would be toward those who are unable to protect themselves from want and fear. However, this may be realistic aspirations in Western Europe, but may not be realistic aspirations in transitioning Eastern Europe where states are rebuilding and are low on resources and institutional legitimacy is not as strong as in Western Europe. Article 9 of the CCPR 1976 confers upon all persons the right to “liberty and security” (CCPR, 1976, Article 9). Thus freedom and security which is broadly interpreted to include welfare and protection from physical harm are put together representing twin aspects of fundamental international human rights. The International Covenant on Economic, Social, and Cultural Rights, 1976 takes a similar position. The Preamble to the CESR states that “free human being” can only enjoy freedom “from fear and want’ if “conditions are created whereby everyone can enjoy his economic, social and cultural rights, as well as his civil and political rights” (CESR, 1976, Preamble). It is unclear whether or not states are unquestionably obliged to create these conditions regardless of their ability to do so. In this regard, it may be impossible for all states to create the ideal conditions for ensuing that individuals enjoy economic, social, cultural, civil and political rights. In many cases, the question may be whether or not the individual has any appreciable economic or social rights to pursue. The CESR specifies the right of the individual to have the opportunity to work in fair and acceptable conditions. Article 9 goes further to state that the individual has the right to “social security, including social insurance” thus emphasizing freedom from want (CESR, 1976, Article 9). The main question however, is whether or not these are realistic rights in some states. The on-going problem of world poverty is a manifestation that the right to social security and social insurance is a not realistic objective of universal human rights since it can only be expected of states that have the resources to provide citizens with social security and social insurance. Similar impracticable problems are found in other parts of the CESR. For instance, Article 10 emphasizes the right to assistance to families and Article 11 emphasizes the natural right to “an adequate standard of living” which includes “food, clothing and housing” and to “continuous improvement of living conditions” (CESR, 1976, Article 11). Article 11 also imposes upon contracting states the duty to ensure that the right to freedom “from hunger” are safeguarded and protected (CESR,1976, Article 11). World hunger and world poverty informs that Articles 10 and 11 are not universal freedoms and rights and as such cannot be enforced and applied globally. The underlying theme reoccurring throughout the primary international instruments contained in the International Bill of Human Rights is the connection between security and welfare and the further connection between security and welfare to human rights and world peace. Under the International Bill of Human Rights, there is a persistent belief that in the absence of freedom from want and fear, human rights cannot be enjoyed and protected. If human rights are not protected and enjoyed, world peace cannot be achieved. Tensions between Freedom from Want and Fear and other Fundamental Freedoms in International Human Rights Laws The most obvious tensions between the freedom from want and fear and other fundamental freedoms have been exposed by the anti-terrorism initiatives in Western democracies. These anti-terrorism initiatives followed the September 11, 2001 terrorist attacks in the US. Many Western democracies responded by introducing anti-terrorism laws and practices that appear to contravene fundamental freedoms (Shiro, 2007). For instance, a number of states have used torture and other forms of arbitrary conduct in dealing with suspected terrorists (Office for Democratic Institutions and Human Rights, 2007). It therefore follows that with new forms of threats, it is impossible to enforce freedom from fear without compromising other fundamental freedoms. Freedom from torture is a fundamental international human right and it is contained in a number of international instruments such as the UDHR, the CPRC and the Convention Against Torture and Other Cruel, In human or Degrading Treatment or Punishment 1984 (Nagan & Atkins, 2001). The dilemma that states face is protecting these fundamental human rights such as protection against terror and living up to obligations to ensure that citizens are protected so as to promote freedom from fear and want (Zwitter, 2011). Thus, one set freedoms must be necessarily sacrificed in order to enforce another. Fitzpatrick (2003) argued that international human rights, if taken from the legalist perspective would severely undermine a state’s ability to ensure that its citizens are free from want or fear in light of the current war against international terrorism. States have been forced to take a more creative approach to defining terrorism and as such have treated terrorism as a “new species of international armed conflict” which has functioned to “displace human rights law and international criminal law” while substituting “new rules that are less detailed than those that apply to conventional armed conflicts” (Fitzpatrick, 2003, p. 241). With terrorism conceptualized as a new species of international armed conflict, states have implemented laws and practices that necessarily justify derogate from fundamental human rights. In the process, international human rights laws forbidding arbitrary arrest and detention have been rephrased to permit arrest and detention of those suspected of being involved with terrorist activities for undetermined periods of time without charges. Some laws permit denying these suspects access to council (Fitzpatrick, 2003). Thus the practice and laws developing in response to terrorism are attempts to protect the vulnerable citizens from the powerful citizens (Fitzpatrick, 2003). Thus counterterrorism laws and practices are measures used to ensure that citizens are accorded freedom from fear and want and necessarily require the surrendering of some human rights guarantees. Evans (2009) argued that tensions between freedom from want and fear and other fundamental international human rights only exist because of a misconception of what international human rights are. If we assume that human rights must be conceptualized as including the wide spectrum of political, welfare, social, cultural, civil and economic rights as expressed in the International Bill of Human Rights, it will be accepted that each of these rights are “indivisible, interdependent, interrelated and of equal importance for the dignity of all human beings” (p. 183). However, as a universal code of human rights, it is impractical to expect that all states have the wherewithal to enforce freedom from fear and want and as such the International Bill of Human Rights is no more than a guide for what states should, if they can provide their citizens with reassurances in terms of freedom from fear and want. Even so, freedom from fear and want are expressed as fundamental rights with little or no regard as to the state’s ability to guarantee their citizens are living free from fear and want. In this regard, the objective of the UN in terms of providing freedom from fear and want as a prerequisite for ensuring world peace is for the most part incapable of achievement universally. Freedom from fear and want are regarded as pertinent components of individual security which in turn must be viewed as essential for the individual to genuinely enjoy other fundamental rights and freedoms (Amouyel, 2006). In this regard individual security is no longer looked upon as simply protection from external military threats. Security is looked upon as freedom from physical as well as socio-economic or environmental threats (Amouyel, 2006). Kyi (1992) argues that freedom from fear and want cannot be distinguished from a state’s responsibilities to protect the fundamental rights and liberties of the individual. According to Kyi (1992), we currently live in an era where technology permits weapons of mass destruction to operate as a threat by “the powerful and unprincipled” as a means of dominating the “weak and helpless” (p. 11). The UDHR provides that all members of society and all factions of society have a duty to advocate for the fundamental freedoms and rights that all citizens are accorded. However, when there is power wielded by virtue of fear and want as opposed to the free will of the individual, peace and prosperity is compromised and human rights cannot be achieved or sustained (Kyi, 1992). This is because, when living in fear and want, the focus is on peace and prosperity rather than on human liberties and rights. Unfortunately, in some states, freedom from fear and want are lofty goals and thus peace and prosperity will remain a priority in some states over human liberties and rights. Yet, it is argued that human dignity and human rights are interdependent objectives. For instance, Malpas and Lickiss (2008) argue that the international human rights are founded on principles of human dignity, thus there is no conflict between fundamental human liberties and measure taken to protect the right to freedom from fear and want. The protection of human dignity is said to be the foundational basis for the promotion of human rights and this is evident in the Preamble to the UDHR (Malpas & Lickiss, 2008). Thus freedom from fear and want is not a separate or independent arm of the concept of universal human rights. It must therefore be assumed that not all human beings can expect to enjoy universal human rights since, not all human beings can realistically expect to live free from fear and want. Realistically, human dignity is questionable at best when the individual does not live free of want. Want in this regard is related to poverty and freedom for want necessarily entitles the individual to a life of prosperity. In this regard, King and Murray (2001-2002) define poverty as: Generalized poverty occurs when an individual falls below the threshold of any key domain of human well-being (p. 858-856). Poverty has thus come to be regarded as a fundamental issue in the promotion of freedom from want and the preservation of human dignity. Essentially it has been proposed that human dignity and human security cannot be segregated from human rights. Human security in this regard includes economic factors, food, health, the environment, personal factors, the community and political conditions (King & Murray, 2001-2002). When it comes to matters of the economy, it is unrealistic to set economic thresholds for states in terms of its obligations toward its own citizens. Many states are not in a position to establish minimum economic standards of living for its citizens and rely on the generosity and assistance of non-governmental and intergovernmental organizations. The goal inherent in the protection of freedom from want and fear and thus the protection of the right to human security is to protect mankind from excessive or fatal risks so that its protection is “consistent with long-term human fulfilment” (Alkire, 2003, p. 2). Human security consciously protects human dignity. It recognizes and acknowledges that the individual may confront threats from which the individual has no control. These kinds of threats include financial crises, violence (internally and externally), the spread of diseases such as AIDs, national policies that undermine access to health care, terrorist attacks, water deficits, pervasive poverty and pollution (Alkire, 2003). The best way to achieve freedom from fear and want however is through inter-state and international cooperation and not via human rights obligations on a state by state basis. Thus conceptually, conditions in modern times have redefined the need for human security and have placed human security at the heart of international human rights. As Newman (2001) explains security is necessary for the survival of mankind from both an individual and community perspective. Security is therefore a common good that facilitates the successful pursuit of “individual and societal values” (Newman, 2001, p. 239). Thus human security is propagated by “institutions such as territory and state sovereignty” (Newman, 2001, p. 239). Despite the alignment of human security (freedom from fear and want) with human dignity and thus human rights, some academics argue that protecting human security can contravene fundamental human rights. Howard-Hassmann (2011) for example argues that defining new threats to human security can add to the current international human rights framework and can actually supplement international human rights laws. However, at the same time there are some concerns that human security can compromise existing international human rights laws. According to Howard-Hassmann (2011) the constant separation of freedom from fear and freedom from want from each other and from international human rights poses a threat to the value of international human rights. In today’s world where freedom from fear and freedom from want have become increasingly urgent, it is undesirable to speak of freedom from fear and freedom from want as two separate norms and as norms that are segregated from international human rights. However, it is unrealistic to expect that freedom from fear and want can be protected equally by all states. While the reality is, when an individual lives in fear he/she will almost always also live in want, it is also true that some states are unable to protect its citizens from fear and want. Conclusion Freedom fear and want originated out of the devastation of the Second World War and formed the four pillars of freedom envisioned as fundamental prerequisites for promoting and achieving human peace and prosperity. Thus freedom from fear and freedom from want were never meant to be segregated from international human rights. Freedom from want and freedom from fear were perceived as related to and particularly significant parts of the protection of human rights. In more recent times, freedom from fear and freedom from want have emerged as significant components of international human rights which were justified on the basis of human dignity. Perceptions were that all human beings were entitled to be treated with dignity. In more recent times, human dignity has confronted increasing vulnerabilities with international terrorism, world poverty, environmental threats, the spread of diseases and natural and man-made disasters. 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