Wednesday, January 27, 2016

Second Generation of Human Rights Mindset: Remaining of the Long Finished War

The Cold War was over and many believes that today is the new era for the universal and united concepts of human rights in the Western hemisphere. There is no longer“this group of rights is inferior to that group of rights”. Is this true? Judge Silvis in his talk with students from Leiden University in the European Court of Human Rights, Strasbourg addressed the civil and political rights as the &First Generation of Human Rights&. It might only show his way of classifying civil and political rights with the economic, social and cultural rights to commemorate the long passed history, but it could also implicitly reveal the existence of these two type of separation for human rights in the unconscious mind of the European Court of Human Rights' judges.
In the last 5 years, HUDOC website reports that from 7.415 applications being submitted to the Court related to the &second generation of human rights&, only 104 are declared admissible and 44 cases lead to follow up decisions (43 resolutions of the Committee of Ministers and 1 recommendation of the Committee of Ministers). While facing the second generation of human rights issue, the fundamental rights mention in ECHR are used as indirect recognition due to the absence of those rights in the Convention. The protection of ‘finding historical truth’ for example, is not exist in the present Covention. However, through the case of Dink v. Turkey (2010), the Court was able stretch the use as Article 10 on freedom of expression to certain degree that it would also fit the scene of denigrating Turkish identity for the victim by expressing views on the Armenian massacre 1915.

European Court of Human Rights in Strasbourg, France
As much as it is indeed exciting to see how the judges plays with interpretation, this however could lead to another big problem: overstretching the concept of fundamental rights itself. In a recent case of housing as resembles in Winterstein v. France (2013), France was found guilty of the violation of Art. 8 due to its decision to evict group of travellers and not being responsible for their alternative housing. The question that appear from this case: is it the right to get a home that must be provided by the authority or the right to respect home that has already existed as mentioned in Art. 8? The Court with it’s decision, trying to combat State’s action to conduct activities that might violate human rights of certain community using power and running away from providing accommodations as the consequences.
Finally, the answer for how long can the separation between these two type of rights and the indirect implementation of ECHR to the “second generation rights” could last, rely on how legal scholars and practitioners understand the words “interdependent” and “indivisibility” of the two rights. If the overstretching interpretation of civil and political rights seen as necessary enough address all the needs for the development of economic, social and cultural rights, then it is our legal creativity (not just reasoning, but also imagination) that must be responsible to be expanded for wide ranging context in the coming years.

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