1. Introduction ![(2)
I would like to express
my thanks for the help obtained from Professor Paul Lemmens and
Mr Michaël Merrigan of the Katholieke Universiteit Leuven. A background
paper prepared by them has served as the principal source of this
report.](/nw/images/icon_footnoteCall.png)
1. Since the conception of the modern human rights movement,
after the Second World War, the call to include duties and responsibilities
into the human rights framework has never been far away. Notably
in the preparation of the 1948 Universal Declaration of Human Rights,
fierce debates were held on the role and place of duties in international
human rights instruments. While it was generally thought that no
rights could exist without duties, especially Western nations often
perceived the inclusion of duties into human rights documents as
a threat to the protection offered to individuals by human rights
law.
2. The topic of fundamental responsibilities, and their relationship
with fundamental rights, is a contentious and much debated one.
In this report an attempt will be made to sketch, in broad lines,
the main arguments put forward in the public debate, and to point
at a number of international and domestic instruments which, in
one way or another, have dealt with the topic. On the basis of these
findings, a list of responsibilities, which can be considered “fundamental”
in the European context, is then presented.
2. The debate
3. Questions regarding the duties and responsibilities
of individuals are, of course, probably as old as organised society
itself. In fact, they have taken an important place in political
and philosophical thinking throughout history. From historical figures
such as Aristotle, Thomas Aquinas, Niccolò Machiavelli and John Milton,
to the Social Contractarians Thomas Hobbes, John Locke, Jean-Jacques
Rousseau or the 19th- century philosophers Jeremy Bentham and John
Stuart Mill, all of these figures considered individual duties and
responsibilities, in one form or another, and often in very different
ways, as essential for societal life.
![(3)
For a more detailed
overview of these figures and their concept of individual duty,
see D. Hodgson, Individual Duty within
a Human Rights Discourse, Aldershot, Ashgate, 2003, pp.
7-28.](/nw/images/icon_footnoteCall.png)
4. More recently, the call for a greater emphasis on duties and
responsibilities has received significant attention through a number
of private and political initiatives. Generally, proponents of a
greater emphasis on duties and responsibilities feel that individual
rights have been over-stressed in today’s society, and that a neglect
of individual duties and responsibilities has led to a kind of individualism
that is detrimental to human life in general, and to community life
in particular. This perceived decline in private and public morality
is said to be the cause, or at least the catalyst, of many modern-day
social problems. It is therefore not surprising that the issue of
duties and responsibilities is one which has been raised among communitarians
and like-minded authors.
![(4)
See,
for example, in American literature, M. A. Glendon, Rights Talk: the Impoverishment of Political
Discourse, New York, Simon & Schuster, 1991; A. Etzioni, The Spirit of Community: Rights, Responsibilities
and the Communitarian Agenda, London, Fontana Press,
1995, and, in British literature, D. Selbourne, The Principle of Duty: An Essay on the Foundations
of Civic Order, London, Abacus, 1997.](/nw/images/icon_footnoteCall.png)
They
are, however, not the only ones who have made such an appeal. As
we will see, a similar concern can be found among the representatives
of the world’s religions who, in response to these concerns, have
entered into a quest for a “global ethic”. The InterAction Council,
a private organisation composed of former heads of state and government,
picked up the idea, and drafted a declaration of human responsibilities. The
United Nations Commission on Human Rights requested the Sub-Commission
on the Promotion and Protection of Human Rights, a body composed
of independent experts, to study the issue of “human rights and human
social responsibilities”. The wide variety of individuals and organisations
interested in the topic seems to indicate that duties and responsibilities
cannot be associated with one or more specific political, philosophical or
religious pressure groups. Rather, there seems to exist a widespread
perception, by many actors across the political spectrum, that an
approach to human rights which incorporates more distinctly duties
and responsibilities could, perhaps, provide an answer to a number
of contemporary societal problems. As one author put it, in commenting
on the lack of focus on duties by traditional legal scholars in
the wake of the French Revolution, “They did not sense, or were
unwilling to understand, that it was impossible in a realistic vision
of democracy to separate citizens' rights from their duties to the
community. For, if the first override the second, the idea that
the individual can expect everything from the State without owing
it anything is strengthened, distorting from the outset the terms
of the social contract, with all the unfortunate effects that this
truncated presentation may eventually have on mentalities”.
![(5)
B. Jeanneau, “Vraie
ou fausse résurgence des déclarations des devoirs de l’homme et
du citoyen”, in Territoires et liberté:
mélanges en hommage au doyen Yves Madiot, Brussels, Bruylant,
2000, p. 315.](/nw/images/icon_footnoteCall.png)
5. It is true that there is also opposition to the idea of a
greater emphasis on duties and responsibilities. However, opponents
generally do not take issue as such with the identification of certain
moral or even legal obligations. Most people would probably agree
that all individuals have – at least some – responsibilities towards
their family, other individuals, the community and the state. The
opponents sometimes contest the existence of a moral crisis or its
gravity, and they may claim that an unjustified nostalgia lies at
the basis of the responsibilities movement.
![(6)
See, for example.,
B. Saul, “In the shadow of human rights: human duties, obligations,
and responsibilities”, Column 32, Human
Rights Law Review (2001), pp. 569-570.](/nw/images/icon_footnoteCall.png)
The
main fear, however, is that responsibilities, especially when legally enforceable,
would threaten individual human rights protection. The opponents
point at the history of human rights as a protective mechanism against
arbitrary state interference. Historically, duties have been abused
all too often by (authoritarian) regimes to curb the legitimate
rights of citizens. Therefore, opponents argue, it would be better
to leave the imposition of duties to the domestic legal systems,
while the protection of human rights can be organised on an international
or supranational level. These fears are not wholly unjustified.
The risk of duties and responsibilities being abused therefore needs
to be neutralised.
6. As has been pointed out in literature,
![(7)
See, for example, J.
H. Paust, “The other side of right: private duties under human rights
law”, 5 Harvard H.R.J. 51 (1992);
C. R. Sunstein, “Rights and their critics”, 70 Notre Dame Law Review 727 (1995);
International Council on Human Rights Policy, Taking
Duties Seriously: Individual Duties in International Human Rights
Law: A Commentary, International Council on Human Rights
Policy, Versoix, Switzerland, 1999; B. Saul, “In the shadow of human
rights: human duties, obligations, and responsibilities”, Column
32, Human Rights Law Review (2001);
D. Hodgson, supra footnote
4; J. H. Knox, “Horizontal human rights law”, 102 Am. J. Int’l L. 1 (2008); L. Lazarus,
B. Goold, R. Desai and Q. Rasheed, The Relationship
between Rights and Responsibilities, United Kingdom Ministry
of Justice Research Series 18/09, London, Ministry of Justice, 2009, <a href='http://www.justice.gov.uk/publications/docs/research-rights-responsibilities.pdf'>www.justice.gov.uk/publications/docs/research-rights-responsibilities.pdf</a>.](/nw/images/icon_footnoteCall.png)
it would seem that duties and responsibilities
are in fact already widely recognised, both under international
and regional human rights instruments and in the various domestic legal
systems. While this fact can be considered an argument against a
greater emphasis on duties and responsibilities at the international
level, it should also be seen as an argument allowing for a further
normative development concerning duties and responsibilities – as
long as the protection of individual rights is safeguarded.
7. Whether or not one agrees with the argument of a moral crisis
and a loss of community awareness, it has become increasingly clear
over the last few years that the issue of duties and responsibilities
has taken up an important place in the political debate across Europe.
8. One domain, for example, in which duties and responsibilities
can play an important role, is that of “responsible citizenship”.
Living as members in a given society inevitably entails duties and
responsibilities. In some of our societies there is the perception
that many individuals have lost connection with the broader community
of which they are members, and that there is a need to identify
the core values and to remind people of them. In the Netherlands,
for instance, the Ministry of the Interior launched in 2009 a discussion
on the implications of citizenship, with a view to drafting a “Charter
of Responsible Citizenship”. It commissioned a report, which was
published in January 2010, identifying a number of core values that
according to a survey were considered important in Dutch society.
The authors identified a number of such values, around the following
elements of responsible citizenship: “living together in a positive
atmosphere”, “caring for each other”, “focus on the future” and
“commitment towards society”.
![(8)
D.
Verhue and S. Roos, Bouwstenen van burgerschap.
Een onderzoek in het kader van het handvest voor verantwoordelijk
burgerschap, report commissioned by the Dutch Ministry
of the Interior, November 2009, Amsterdam, <a href='http://www.rijksoverheid.nl/onderwerpen/democratie-en-burgerparticipatie/documenten-en-publicaties/rapporten/2010/01/20/onderzoek-bouwstenen-van-burgerschap.html'>www.rijksoverheid.nl/onderwerpen/democratie-en-burgerparticipatie/documenten-en-publicaties/rapporten/2010/01/20/ onderzoek-bouwstenen-van-burgerschap.html</a> (Dutch).](/nw/images/icon_footnoteCall.png)
9. In the United Kingdom, the previous government launched a
debate on drafting a bill of rights and responsibilities. The title
indicates that the government sought to underline the importance
of responsibilities. In a Green Paper presented to parliament in
2009, the authors perceived a “social and economic change” that “has
altered public attitudes”. According to them, this change “has encouraged
the rise of a less deferential, more consumerist public”.
![(9)
“Rights and Responsibilities:
Developing our Constitutional Framework”, Green Paper presented
to parliament by the Lord Chancellor and Secretary of State for
Justice and the Minister of State, Ministry of Justice, March 2009,
p. 17,<a href='http://www.justice.gov.uk/publications/docs/rights-responsibilities.pdf'>www.justice.gov.uk/publications/docs/rights-responsibilities.pdf</a>.](/nw/images/icon_footnoteCall.png)
The paper argues that in this “atomised
society” rights have been, to an extent, “commoditised”, which “is
demonstrated by those who assert their rights in a selfish way without
regard to the rights of others”.
![(10)
Ibid.](/nw/images/icon_footnoteCall.png)
A
number of responsibilities for members of the United Kingdom society
are proposed, such as “treating National Health Service and other
public sector staff with respect”; “safeguarding and promoting the
well-being of children in our care”; “living within our environmental
limits”; “participating in civic society through voting and jury
service”; “assisting the police in reporting crimes and co-operating
with the prosecution agencies”, “as well as general duties such
as paying taxes and obeying the law”.
![(11)
Ibid., p. 19.](/nw/images/icon_footnoteCall.png)
However,
the government stressed that the rights in the European Convention
on Human Rights (ETS No. 5, “the Convention”) “cannot be legally
contingent on the exercise of responsibilities”.
![(12)
Ibid., p. 18.](/nw/images/icon_footnoteCall.png)
This
Green Paper has spurred an intense debate on the role of rights
and responsibilities in the United Kingdom.
![(13)
For arguments in this
debate, see, for example, the aforementioned report by L. Lazarus,
B. Goold, R. Desai and Q. Rasheed, supra footnote
8; see also, for example, the critical considerations by P. Eleftheriadis,
“On rights and responsibilities”, Paper No. 44/2009, University of Oxford Legal Research Paper Series,
October 2009, <a href='http://ssrn.com/abstract=1486086'>http://ssrn.com/abstract=1486086</a>.](/nw/images/icon_footnoteCall.png)
10. It is clear that trying to identify fundamental responsibilities
is a highly sensitive issue. There is always the risk that values
dear to the majority prevailing at a given moment are unduly imposed
as conduct norms or even legally enforceable duties on all members
of society. This risk is particularly present when the idea of a responsible
citizenship and of fundamental responsibilities is applied in the
context of integration of newcomers, notably immigrants, in a given
society. While the receiving society undoubtedly may legitimately expect
from newcomers that they respect certain fundamental values, there
is also the need for society to respect the fundamental rights of
all individuals, including those belonging to a minority. A mutual
respect is needed. Duties and responsibilities can therefore not
be disconnected from fundamental rights.
![(14)
In Belgium, a commission
was established by the Flemish Government to study the contents
of an integration course offered to foreign newcomers. This course
aimed to introduce these newcomers to Flemish society. The commission,
led by a judge of the Constitutional Court and composed of various
experts, presented its final report in May 2006 (Commissie “ter
invulling van de cursus maatschappelijke oriëntatie”, Eindverslag, May 2006). On the basis
of values contained in a number of international human rights instruments,
the report identifies five core values, namely: liberty, equality,
solidarity, respect and citizenship. It is under the last heading
that the report talks about individual duties, both towards the
state and towards other individuals. It describes citizenship as
entailing the commitment of individuals for each other. The commission
argues that it is the task of the state to stimulate this kind of
commitment (pp. 26-29).](/nw/images/icon_footnoteCall.png)
3. Rights, duties
and responsibilities, and the relationship between them
11. Later in this report I will deal primarily with responsibilities,
not with duties. Different meanings have been attributed to these
notions. I choose to understand responsibilities as moral or ethical
obligations, and duties as obligations imposed by law.
![(15)
As the notions of “duties”,
“responsibilities” and “obligations” are used interchangeably in
literature, the meaning attributed to each of these notions in the
present report merely reflects a working definition. One should
be aware that these notions can have different meanings in the available
literature. See, for example, F. Ost and S. van Drooghenbroeck, La responsabilité, face cachée des droits de
l’homme, Brussels, Bruylant, 2005, p. 6, in which “obligation”
is attributed a legal connotation, “devoir”
(duty) is attributed a moral connotation and “responsabilité”
is attributed an ethical connotation. While the foregoing division
is certainly defensible, it will not be followed in this report; instead
I will merely make the division between (legal) duties and (moral
and/or ethical) responsibilities.](/nw/images/icon_footnoteCall.png)
In this respect,
I fully subscribe to the distinction made by Mr Martelli in his 1998
report to the Parliamentary Assembly between “mandatory obligations
towards the state and towards others” (duties) and ethical and moral
obligations (responsibilities).
![(16)
“Education in the responsibilities
of the individual”, report of the Committee on Culture and Education, Doc. 8283, rapporteur: Mr Valentino Martelli. The report states:
“A clear distinction must be made between two kinds of obligations:
on the one hand, there are mandatory obligations towards the state
(military service, payment of taxes, etc.), and towards others,
such as the obligation to refrain from the use of violence; on the
other hand, there are moral and ethical obligations (the obligation
to show solidarity, etc.). The first may be described as legal obligations,
while the second group are ethical requirements that should not
be fixed by law.”](/nw/images/icon_footnoteCall.png)
12. “Responsibilities”, being of a moral and ethical nature, thus
require a very different approach than “duties” and “human rights”,
which have a distinctly legal nature. As Mr Martelli noted: “If
a state were to dictate rules for all human behaviour, this would
represent a negation of freedom and of human rights, since everyone should
be responsible for his or her own moral and ethical behaviour. The
result would be a totalitarian state, incompatible with the principles
and values of the Council of Europe. Moral attitudes should remain
in the realm of an individual’s free choice.”
13. Mr Martelli therefore warned against conflating the legal
domain, on the one hand, and the moral and ethical domains, on the
other hand. For this reason, he pointed at the principal danger
involved in listing individual responsibilities at the international
level: “Placing rights and moral obligations on the same level entails
the risk of reducing the effectiveness of these rights, by ignoring
their legal force, which is stronger than a question of morality.
This is also why it does not seem desirable that each time reference
is made in an Assembly document to a human right, a corresponding
obligation should be systematically added.”
14. Mr Martelli also rightfully acknowledged that “[t]here is
also an individual dimension to human rights, which consists in
the freedom to oppose and challenge the values of society and its
institutions”. As he pointed out, “[i]t would thus be a fairly delicate
matter to enumerate the individual’s responsibilities towards society”. He
further also referred to the danger that “governments would be obliged
to take a judicial approach to citizens who did not meet their obligations”.
This would be troublesome, as “a state cannot and should not prescribe
its citizens’ moral and ethical attitudes”. Finally, Mr Martelli
also expressed his concern that the exercise of human rights could
be made contingent upon the observance of one’s responsibilities.
Fundamental responsibilities would then run the risk of becoming
“an instrument enabling every authoritarian regime to relativise
human rights, establish social morality as the norm and intervene
in all aspects of citizens’ private lives”. As has been mentioned
before, it is therefore important that the Assembly, in proposing
a number of “fundamental responsibilities”, makes sure that protection
of fundamental rights is in no way threatened.
15. As may be inferred from the above statements, making the distinction
between moral responsibilities and legal duties means that there
is no obligation whatsoever for the member states of the Council
of Europe to turn the fundamental responsibilities proposed in the
draft resolution into legally enforceable duties. Whether and to
what extent national authorities may wish to do so is something
that in principle belongs to their discretion, provided of course
that their action respects individual human rights.
16. Duties, which are imposed by law, are subject to the proportionality
principle. When a burden is placed on an individual, in the name
of the general interest or the protection of the rights and interests
of others, a fair balance has to be struck between the various interests
at stake. A disproportionate burden is in any event inadmissible.
![(17)
See, for example, European
Court of Human Rights, Lithgow v. the
United Kingdom, judgment of 8 July 1986, paragraph 120.](/nw/images/icon_footnoteCall.png)
The
latter principle is also relevant for fundamental responsibilities.
Responsibilities can never be so heavy that assuming them would
place the individual’s rights, particularly his or her fundamental
rights, in jeopardy. Responsibilities should remain reasonable at
all times.
17. In this report I shall attempt to identify and describe a
number of responsibilities that are considered fundamental in all
the member states of the Council of Europe. National authorities
can find inspiration in that list. Nothing more, but nothing less
either.
18. The distinction between responsibilities and duties, and the
focus on responsibilities, entails a further consequence. I think
that it can be left to the competent national authorities to deal
with the relationship between the individual and the state. My concern
will be the relationship between the individual, on the one hand,
and his or her fellow citizens and society as a whole, on the other
hand.
19. There are various ways to proceed if one wants to identify
responsibilities considered as fundamental. One can be inspired
by moral, religious, political or other considerations. In this
report, however, a human rights based approach is proposed. I believe
that this is precisely the contribution that can be made by the
Assembly, which is strongly committed to respect for and protection
of human rights.
20. The human rights approach applied in this report entails that
fundamental responsibilities are identified on the basis of existing
provisions in international human rights texts, in particular those
that are relevant for the Council of Europe. The European Convention
on Human Rights and the revised European Social Charter (ETS No.
163) will be major (but not the only) sources of inspiration.
21. Sometimes, international human rights instruments explicitly
refer to the existence of such responsibilities. This is the case,
for example, with Article 10, paragraph 2, of the Convention, which
provides that the exercise of freedom of expression “carries with
it duties and responsibilities”.
22. Most of the time, however, the existence of fundamental responsibilities
is implicitly acknowledged by the drafters of such texts. This is
the case, for instance, where the text allows for the limitation
of human rights for certain legitimate aims. These aims may relate
to the relationship between an individual and his or her fellow citizens
or society as a whole, and in that case they are highly indicative
of the existence of fundamental responsibilities for each member
of society.
23. Another indication of the existence of fundamental responsibilities
is offered by the fact that states have positive obligations, inherent
in an effective respect for human rights, especially insofar as
these obligations imply the adoption of measures designed to secure
respect for human rights in the sphere of the relations of individuals
between themselves.
![(18)
See,
with respect to positive obligations inherent in an effective respect
for private or family life, European Court of Human Rights, X and Y v. the Netherlands, judgment
of 26 March 1985, paragraph 23.](/nw/images/icon_footnoteCall.png)
The states may
thus have to impose (legally enforceable) duties on individuals.
24. The legal obligations, which I have called “duties”, and the
pre-existing moral and ethical obligations, which I have called
“responsibilities”, can – and do – often overlap. It is useful to
note that the existence of all kinds of individual duties can be
indicative of the existence of synthesising fundamental responsibilities.
For these implicit acknowledgements of fundamental responsibilities,
the case law of the European Court of Human Rights (“the Court”)
will be highly relevant.
25. The human rights based approach to fundamental responsibilities
is intended to ensure that the individual’s responsibilities are
seen as a necessary complement to the individual’s rights. In that
way, fundamental responsibilities not only contribute to a more
accurate description of the status of the individual within society,
but by further strengthening the democratic framework within which
rights are invoked, they will also contribute to a better protection
of the fundamental rights of other individuals.
26. This report does not deal with “responsibilities”, but with
“fundamental responsibilities”. I therefore attempt to enumerate
responsibilities that are widely accepted. This is another reason
why I look for references in existing international human rights
texts. In a certain way, fundamental responsibilities can therefore
be considered as general principles, the existence of which can
be deduced from various particular applications of these principles,
including applications in the form of legally enforceable duties.
These principles can lead, in turn, to concretisations in legally
enforceable duties of a more specific nature.
27. Finally, it should be stressed that fundamental responsibilities,
like fundamental rights, are not absolute. This means that there
may be circumstances in which an individual should be able to argue
that a given fundamental responsibility applies to him or her to
a lesser degree than it would normally apply. For instance, one
cannot expect from a person who is ill that he or she has an unaltered
responsibility to work. This is a question of making sure that responsibilities
do not limit rights unduly, in a given case (see paragraph 10 above).
In a declaration of principles, such as the one contained in the
draft resolution, it is not necessary, and it is indeed even impossible,
to give an overview of all the elements that may justify a limitation
of the principles. It is sufficient to state clearly that principles
are just principles, and that there may be exceptions to the principles.
Often, it will be exactly the need for respect for human rights
that will lead to the qualification of the scope of one’s responsibility.
4. Existing texts
and initiatives
4.1. Responsibilities
in human rights instruments
28. As was already mentioned above, it would be wrong
to assume that contemporary human rights instruments do not pay
any attention to duties and responsibilities. A short overview is
given here of some of those references in the most important international
and regional human rights instruments.
![(19)
More detailed overviews
can be found, inter alia,
in International Council on Human Rights Policy, supra footnote 8; D. Hodgson, supra footnote 4.](/nw/images/icon_footnoteCall.png)
29. Any analysis of duties and responsibilities in international
human rights documents must start from the 1948 Universal Declaration
of Human Rights, Article 29, paragraph 1, of which states that “(e)verybody
has duties to the community in which alone the free and full development
of his personality is possible”. This provision can be considered
to be one of the most fundamental provisions of the declaration
and it was considered a key element by the declaration’s drafters.
![(20)
International Council
on Human Rights Policy, supra footnote
8. For more background on the drafting process, see also A. Verdoodt, Naissance et signification de la Déclaration
Universelle des Droits de l’Homme, Etudes morales, sociales et juridiques,
Louvain, Nauwelaerts, 1964, pp. 262-271; R. Cassin, “De la place
aux devoirs de l’individu dans la Déclaration Universelle des Droits
de l’Homme”, in Mélanges offerts à Polys
Modinos: problèmes des droits de l’homme et de l’unification européenne,
Paris, Pedone, 1968, pp. 479-488.](/nw/images/icon_footnoteCall.png)
It affirms
that individuals have general duties, as well as specific duties
which might arise in the exercise of specific rights. The preparatory
works show the intense debates that preceded the final decision
on the wording of Article 29, but most of all they show the almost evident
nature of the inclusion of its paragraph 1 into the declaration.
In an elaborate study conducted by Erica-Irene A. Daes, Special
Rapporteur of the United Nations Sub-Commission on Prevention of
Discrimination and Protection of Minorities, the issue of the individual’s
duties to the community under Article 29 of the Universal Declaration
of Human Rights was explored in detail.
![(21)
E.-I. A. Daes, “The
individual’s duties to the community and the limitations on human
rights and freedoms under Article 29 of the Universal Declaration
of Human Rights: a contribution to the freedom of the individual
under law”, United Nations document E/CN.4/Sub.2/432/Rev.2, New
York, United Nations, 1983.](/nw/images/icon_footnoteCall.png)
30. The European Convention on Human Rights contains one explicit
reference to responsibilities, namely in Article 10, which deals
with freedom of expression. As indicated above, Article 10, paragraph
2, refers to “duties and responsibilities”. The former European
Commission of Human Rights
![(22)
See,
for example, Handyside v. the United
Kingdom, report of 30 September 1975, paragraph 141.](/nw/images/icon_footnoteCall.png)
and
the European Court of Human Rights
![(23)
See, for example, in
the case of a civil servant, Vogt v.
Germany, judgment of 26 September 1995, paragraph 53;
in the case of the press, Selistö v.
Finland, judgment of 16 February 2005, paragraph 54;
in the case of members of the military, Engel
and Others v. the Netherlands, judgment of 8 June 1976,
paragraph 100.](/nw/images/icon_footnoteCall.png)
have repeatedly dealt with such
“duties and responsibilities” of individuals. Article 17, which denies
the possibility to invoke human rights to the “enemies” of democracy,
![(24)
See, for example, Ždanoka v. Latvia, judgment (Grand
Chamber) of 16 March 2006, paragraphs 98-101.](/nw/images/icon_footnoteCall.png)
can
also be regarded as the expression of a general responsibility of
individuals.
31. Both the 1966 International Covenant on Civil and Political
Rights and the 1966 International Covenant on Economic, Social and
Cultural Rights have an identical reference to duties in their preamble,
where it is stated that “[r]ealising that the individual, having
duties to other individuals and to the community to which he belongs,
is under a responsibility to strive for the promotion and observance
of the rights recognised in the present Covenant”.
32. Responsibilities are also mentioned in the preamble of the
Charter of Fundamental Rights of the European Union, which was incorporated
in the Treaty on European Union. The Charter states that the enjoyment
of the rights included in it “entails responsibilities and duties
with regard to other persons, to the human community and to future
generations”.
33. In many of the human rights instruments applicable outside
of Europe, we find direct and indirect references to duties and
responsibilities. References can be found, inter
alia, in the American Declaration on the Rights and Duties
of Man, the American Convention on Human Rights, the African Charter
on Human and Peoples’ Rights, the Declaration of the Basic Duties
of ASEAN Peoples and Governments, the Draft Pacific Charter of Human
Rights, the Arab Charter on Human Rights, the International Convention
on the Rights of the Child, and in various sets of principles such
as the Principles of Medical Ethics relevant to the Role of Health Personnel,
particularly Physicians, in the Protection of Prisoners and Detainees
against Torture and Other Cruel, Inhuman or Degrading Treatment
or Punishment, the Basic Principles on the Role of Lawyers and the United
Nations Guidelines on the Role of Prosecutors.
4.2. Specific initiatives
at the global level
34. A number of significant initiatives have been undertaken
in the last few decades aimed at identifying individual duties and
responsibilities. In this section an overview will be provided of
some of the most notable initiatives at the global level.
![(25)
This overview will
only deal with a selection of highly relevant initiatives; many
more appeals and initiatives have been brought forward by various
political and non-governmental actors.](/nw/images/icon_footnoteCall.png)
35. As mentioned above, proponents of a greater emphasis on duties
and responsibilities can be found among those who aim to establish
a global ethic. In this respect, an important initiative was taken
by the Parliament of the World’s Religions, an association grouping
the major religions.
![(26)
<a href='http://www.parliamentofreligions.org/'>www.parliamentofreligions.org</a>.](/nw/images/icon_footnoteCall.png)
In 1993, 6 500 people from every
possible religion convened in the Council for a Parliament of the
World’s Religions in Chicago. The council gave its assent to a “Declaration
Toward a Global Ethic”,
![(27)
Parliament
of the World’s Religions, “Declaration Toward a Global Ethic”, Chicago
(USA), 4 September 1993, <a href='http://www.parliamentofreligions.org/_includes/FCKcontent/File/TowardsAGlobalEthic.pdf'>www.parliamentofreligions.org/_includes/FCKcontent/File/TowardsAGlobalEthic.pdf</a>.](/nw/images/icon_footnoteCall.png)
a document which was mainly prepared
by Hans Küng, a catholic theologian. The global ethic envisaged
in the declaration is “neither a global ideology, nor a single unified
global religion transcending all existing religions, nor a mixture
of all religions”.
![(28)
H.
Küng, “Part One: The Declaration of the Parliament of the World’s
Religions; Introduction”, in H. Küng and H. Schmidt (eds), A Global Ethic and Global Responsibilities:
Two Declarations, London, SCM Press Ltd., 1998, p. 41.](/nw/images/icon_footnoteCall.png)
Rather,
it “seeks to work out what is already common to the religions of
the world now despite all their differences over human conduct,
moral values and basic moral convictions”.
![(29)
Ibid., pp. 41-42.](/nw/images/icon_footnoteCall.png)
The
declaration is based on the main premise that no new global order
can be conceived without a global ethic, and that this ethic must
be based on the principle that every human being must be treated
humanely, which, in turn, leads to the “Golden Rule”: “What you
do not wish done to yourself, do not do to others.” These principles
lead to four “irrevocable directives” on which all religions can
agree, namely “commitment to a culture of non-violence and respect
for life”, “commitment to a culture of solidarity and a just economic
order”, “commitment to a culture of tolerance and a life of truthfulness”
and “commitment to a culture of equal rights and partnership between
men and women”.
![(30)
Parliament
of the World’s Religions, “Declaration Toward a Global Ethic”, op.
cit.](/nw/images/icon_footnoteCall.png)
36. A second major initiative in the search for a global ethic
was taken by the InterAction Council,
![(31)
<a href='http://www.interactioncouncil.org/'>www.interactioncouncil.org</a>.](/nw/images/icon_footnoteCall.png)
an organisation of former heads
of state and government. On the occasion of the 50th anniversary
of the Universal Declaration of Human Rights, the InterAction Council
presented a “draft Universal Declaration of Human Responsibilities”,
based on the work of a high-level expert group chaired by Helmut
Schmidt, in which Hans Küng again played a major role.
![(32)
InterAction Council,
A Universal Declaration of Human Responsibilities, 1 September 1997.
For a more detailed overview, see J. Frühbauer, “From the Declaration
of the Religions to the Declaration of the Statesmen: Stages in
the Composition of the Declaration of Human Responsibilities”, in
H. Küng and H. Schmidt (eds.), supra footnote
29, pp. 84-103.](/nw/images/icon_footnoteCall.png)
The report
![(33)
Report on the Conclusions
and Recommendations by a High-Level Expert Group on “In Search of
Global Ethical Standards”, chaired by Helmut Schmidt, 22-24 March
1996, Vienna, Austria.](/nw/images/icon_footnoteCall.png)
containing the conclusions
and recommendations of the working group contains explicit references
to the basic principles underlying the Declaration Toward a Global Ethic
(namely “Every human being must be treated humanely” and the “Golden
Rule”), as well as the Parliament of the World Religions’ four irrevocable
directives. The “Universal Declaration of Human Responsibilities”
was intended to “have the character of an ethical appeal, not the
binding character of international law”.
![(34)
H. Schmidt, “Part Two:
A Universal Declaration of Human Responsibilities by the InterAction
Council; Introduction”, in H. Küng and H. Schmidt (eds), supra footnote 29, p. 79.](/nw/images/icon_footnoteCall.png)
Nevertheless,
it was hoped that, eventually, the Declaration of Human Responsibilities, just
like the Universal Declaration of Human Rights, would result in
a text adopted by the General Assembly of the United Nations.
![(35)
Ibid.](/nw/images/icon_footnoteCall.png)
The
goal of the declaration was to “complement the Human Rights Declaration
and strengthen it and help lead to a better world”.
![(36)
Introductory comment
to the InterAction Council’s Universal Declaration of Human Responsibilities, supra footnote 33.](/nw/images/icon_footnoteCall.png)
The
draft thus intended “to bring freedom and responsibility into balance
and to promote a move from the freedom of indifference to the freedom
of involvement”.
![(37)
Ibid.](/nw/images/icon_footnoteCall.png)
The
draft Universal Declaration of Human Responsibilities contains 19
articles, in which a number of specific responsibilities are spelled
out, under the following headings: “Fundamental principles for humanity”
(articles 1-4), “Non-violence and respect for life” (Articles 5-7),
“Justice and solidarity” (Articles 8-11), “Truthfulness and tolerance”
(Articles 12-15) and “Mutual respect and partnership” (Articles
16-18). Importantly, the last article (Article 19) states that nothing
in the declaration can be interpreted as warranting the destruction
of any of the responsibilities, rights and freedoms contained in
it or in the Universal Declaration of Human Rights.
![(38)
Article 19 of the Universal
Declaration of Human Responsibilities, supra footnote
33.](/nw/images/icon_footnoteCall.png)
The draft declaration never made it into
a text adopted by the General Assembly of the United Nations. It
remains, however, an important reference document.
37. Around the same time, in 1998, the Valencia Declaration of
Human Duties and Responsibilities
![(39)
Declaration of Human
Duties and Responsibilities, adopted by a high-level group chaired
by Richard J. Goldstone under the auspices of the city of Valencia
and UNESCO, initiated and organised by the Valencia Third Millennium Foundation, <a href='http://globalization.icaap.org/content/v2.2/declare.html'>http://globalization.icaap.org/content/v2.2/declare.html</a> (unofficial source) (hereafter: Valencia Declaration
of Human Duties and Responsibilities).](/nw/images/icon_footnoteCall.png)
was drafted
on the occasion of the 50th anniversary of the Universal Declaration
of Human Rights by a high-level group set up by the Valencia Third
Millennium Foundation and chaired by Richard J. Goldstone (South-African judge
and former Chief Prosecutor at the United Nations tribunals for
the former Yugoslavia and Rwanda). The declaration recognises in
its preamble “the universal significance, global reach and indivisibility
of the rights enunciated in the Universal Declaration of Human Rights,
the International Covenant on Civil and Political Rights and the
International Covenant on Economic, Social and Cultural Rights and
other international human rights instruments”, and goes on to hold
that “the effective enjoyment and implementation of human rights
and fundamental freedoms is inextricably linked to the assumption
of the duties and responsibilities in those rights” and that “individuals
share an obligation to respect, promote and implement human rights
and fundamental freedoms”.
![(40)
Preamble
of the Valencia Declaration of Human Duties and Responsibilities.](/nw/images/icon_footnoteCall.png)
The
declaration then lists in detail in 12 chapters a great variety
of duties in the field of life and human security; human security
and an equitable international order; meaningful participation in
public affairs; freedom of opinion, expression, assembly, association
and religion; personal and physical integrity; equality; protection
of minorities and indigenous peoples; rights of the child and the
elderly; work, quality of life and standard of living; and education,
arts and culture.
38. In 1999, the United Nations General Assembly adopted by consensus
the Declaration on the Right and Responsibility of Individuals,
Groups and Organs of Society to Promote and Protect Universally
Recognised Human Rights and Fundamental Freedoms, also referred
to as the Declaration on Human Rights Defenders. As such, while
it is not legally binding, the declaration provides a strong basis
for the actions undertaken by human rights defenders around the
world. Article 18 of this declaration clearly finds its roots in
Article 29 of the Universal Declaration of Human Rights (see paragraph
29 above), but goes further by specifying a number of specific duties.
![(41)
Article 18 of the declaration:
“1. Everyone has duties towards and within the community, in which
alone the free and full development of his or her personality is
possible. 2. Individuals, groups, institutions and non-governmental organisations
have an important role to play and a responsibility in safeguarding
democracy, promoting human rights and fundamental freedoms and contributing
to the promotion and advancement of democratic societies, institutions
and processes. 3. Individuals, groups, institutions and non-governmental
organisations also have an important role and a responsibility in
contributing, as appropriate, to the promotion of the right of everyone
to a social and international order in which the rights and freedoms
set forth in the Universal Declaration of Human Rights and other
human rights instruments can be fully realised.”](/nw/images/icon_footnoteCall.png)
39. At the dawn of the millennium, Miguel Alfonso Martínez, Special
Rapporteur of the United Nations Sub-Commission on the Promotion
and Protection of Human Rights, who had been tasked to undertake
“a study on the issue of human rights and responsibilities”, presented
a report including a pre-draft Declaration on Human Social Responsibilities.
![(42)
“Promotion and Protection
of Human Rights: Human Rights and Responsibilities. Final Report
of the Special Rapporteur, Miguel Alfonso Martínez, on the Study
requested by the Commission on Human Rights in its Resolution 2000/63, and submitted pursuant to Economic and Social Council
decision 2002/277, 17 March 2003”, United Nations Document E/CN.4/2003/105.](/nw/images/icon_footnoteCall.png)
This
report and the pre-draft were the object of fierce opposition by
the Western states. That reaction was prompted in particular by
Martínez’s inclusion of certain state duties, namely duties of the
developed countries of the “North” owed to states in the “South”.
![(43)
See Article 8 of the
pre-draft Declaration on Human Social Responsibilities.](/nw/images/icon_footnoteCall.png)
Further
discussion of the draft was eventually blocked in the Economic and
Social Council.
4.3. Specific initiatives
within the Council of Europe
40. On 30 March 1999, the Assembly adopted
Recommendation 1401 (1999) on education in the responsibilities of the individual.
![(44)
Recommendation 1401 (1999) on education in the responsibilities of the individual.](/nw/images/icon_footnoteCall.png)
In
this recommendation, the Assembly states that fundamental rights
entail responsibilities, and that there is a need “to take steps
to promote both education in the responsibilities of the individual
and awareness on the part of citizens of their responsibilities,
within the context of human rights education, so as not to neglect
the social aspect of these rights”.
![(45)
Ibid., paragraph 4.](/nw/images/icon_footnoteCall.png)
It
further holds that it is “convinced that awareness of citizens’
responsibilities should be raised through education, and that it
is not the role of a democratic state to dictate rules for every
aspect of human behaviour, since moral and ethical attitudes must remain
an area in which the individual has freedom of choice, but always
respecting the rights of others”.
![(46)
Ibid., paragraph 8.](/nw/images/icon_footnoteCall.png)
It also
lists “fundamental values” as expressed in the European Convention
on Human Rights, the Universal Declaration of Human Rights, the
revised European Social Charter and the Framework Convention for
the Protection of National Minorities (ETS No. 157). It states,
more particularly, that everyone should: (a) “fully respect the
dignity, value and freedom of other people, without distinction
of race, religion, sex, nationality, ethnic origin, social status,
political opinion, language or age; everyone must act towards others
in a spirit of fellowship and tolerance”; (b) “act peacefully without
recourse to physical violence or mental pressure”; (c) “respect
the opinions, privacy and personal and family life of other people”;
(d) “show solidarity and stand up for the rights of others”; (e)
“in practising his or her own religion, respect other religions,
without fomenting hatred or advocating fanaticism, but rather promoting
general mutual tolerance”; (f) “respect the environment and use
energy resources with moderation, giving thought to the well-being
of future generations”. This enumeration of responsibilities that
should be the object of education is an important source of inspiration
for our list of fundamental responsibilities.
41. On 7 May 1999, the Committee of Ministers, on the occasion
of the 50th anniversary of the Council of Europe, adopted the Declaration
and Programme on Education for Democratic Citizenship, based on
the Rights and Responsibilities of Citizens, in which the need was
stressed to devote attention to the relationship between rights
and responsibilities, and responsible citizenship in a democratic
society.
42. In May 2000, the Council of Europe’s Congress of Local and
Regional Authorities adopted a resolution approving the “Guidelines
for a policy on citizens’ responsible participation in municipal
and regional life”.
![(47)
Congress
of Local and Regional Authorities, Resolution 91 (2000) on responsible
citizenship and participation in public life, adopted on 24 May
2000,<a href='https://wcd.coe.int/wcd/ViewDoc.jsp?id=837017'>https://wcd.coe.int/wcd/ViewDoc.jsp?id=837017</a>.](/nw/images/icon_footnoteCall.png)
These guidelines call for the fulfilment
of a number of individual duties and responsibilities, including responsibility
for one’s own life, responsibility towards others, responsibilities
within relationships and within the family and towards society.
5. Enumeration of
fundamental responsibilities
43. In the next section, a number of responsibilities
will be proposed. First, three general responsibilities will be
discussed, followed by a (non-exhaustive) list of specific responsibilities.
I will end with a final clause of a horizontal nature.
5.1. General responsibilities
5.1.1. Responsibility
to treat all people in a humane way
- Every
person, regardless of gender, ethnic origin, social status, political
opinion, language, age, nationality, or religion, has a responsibility
to treat all people in a humane way
![(48)
The wording of this
principle, as it is suggested here, is borrowed from Article 1 of
the InterAction Council’s draft Universal Declaration of Human Responsibilities
(supra footnote 33). See also
the Martínez pre-draft Declaration on Human Social Responsibilities
(supra footnote 43), Article
14 of which speaks of the duty of every person “to behave in a fraternal
manner toward others, so as to contribute to the achievement of
the effective recognition of the equality of the inalienable rights
and the intrinsic dignity of every member of the human family”.](/nw/images/icon_footnoteCall.png)
44. The responsibility to treat all people in a humane
way can be considered the most basic obligation for any human being.
The requirement that every human being be treated in a humane way
can be founded in the fundamental value underlying the European
Convention on Human Rights, namely the principle of human dignity.
This responsibility is the basic and paramount premise for the effective
protection of human rights. The “Golden Rule” may serve as a guiding
principle in this regard: “What you do not wish to be done to yourself,
do not do to others.”
![(49)
Article
4 of the InterAction Council’s draft Universal Declaration of Human
Responsibilities, supra footnote
33; see also section II of the Parliament of the World’s Religions’
“Declaration Toward a Global Ethic”, supra footnote
28.](/nw/images/icon_footnoteCall.png)
5.1.2. Responsibility
to be tolerant
- Every
person has a responsibility to be tolerant towards others
45. The need for individual tolerance lies at the heart
of the democratic society. As the Assembly has stated, “everyone
must act towards others in a spirit of fellowship and tolerance”.
![(50)
Recommendation 1401 (1999) on education in the responsibilities of the individual, supra footnote 45, paragraph 9.vi.a.](/nw/images/icon_footnoteCall.png)
Without tolerance
between the individuals who together make up the democratic society,
no peace or democracy is possible. As the European Court of Human
Rights has held, “[o]ne of the principal characteristics of democracy
is the possibility it offers of resolving a country’s problems through
dialogue, without recourse to violence, even when those problems are
irksome”.
![(51)
Stankov and the United Macedonian Organisation
Ilinden v. Bulgaria, judgment of 2 October 2001, paragraph
88.](/nw/images/icon_footnoteCall.png)
The Court has repeatedly held that tolerance,
broad-mindedness and pluralism are the fundamental values of a democratic
society.
![(52)
Handyside v. the United Kingdom,
judgment of 7 December 1976, paragraph 49.](/nw/images/icon_footnoteCall.png)
This
tolerance is most of all required vis-à-vis opinions and expressions
that are shocking or disturbing, unless they incite to violence
or reject democratic principles.
![(53)
See, for example, Stankov and the United Macedonian Organisation
Ilinden v. Bulgaria, judgment of 2 October 2001, paragraph
97.](/nw/images/icon_footnoteCall.png)
Fundamentally, tolerant behaviour is the
glue that keeps a democratic society together; it therefore lies
as the basis of most, if not all, other rights and responsibilities.
5.1.3. Responsibility
to exercise human rights with respect for others
- Every
person has a responsibility to exercise his or her human rights
with respect for others
46. The responsibility to exercise human rights with
respect for others can be found, directly and indirectly, in nearly
all international human rights instruments. It implies that the
individual will sometimes have to show restraint in the exercise
of a right, because of the rights of others or certain legitimate
interests of society. This individual responsibility is a direct
consequence of the human rights logic, as (most) fundamental rights
are not absolute, but need to be balanced with the general interest
(see paragraph 27 above). It clearly finds a basis in Article 29,
paragraph 1, of the Universal Declaration of Human Rights, mentioned
above (paragraph 29). Read together with Article 2
![(54)
Article 2 of the Universal
Declaration of Human Rights states: “Everyone is entitled to all
the rights and freedoms set forth in this Declaration, without discrimination
of any kind, …”.](/nw/images/icon_footnoteCall.png)
and Article 30
![(55)
Article 30 of the Universal
Declaration of Human Rights states: “Nothing in this Declaration
may be interpreted as implying for any State, group or person any
right to engage in any activity or to perform any act aimed at the
destruction of any of the rights and freedoms set forth herein”.](/nw/images/icon_footnoteCall.png)
of
the Universal Declaration of Human Rights, it is clear that while
every individual should have the freedom to freely develop his or
her personality, there also has to be a duty incumbent on that individual
“to enable everyone else to do the same”.
![(56)
E.-I. A. Daes, supra footnote 22, p. 41.](/nw/images/icon_footnoteCall.png)
While
some human rights instruments, like the European Convention on Human
Rights,
![(57)
See Article
17 of the Convention.](/nw/images/icon_footnoteCall.png)
list this responsibility
in a separate article,
![(58)
Provisions
similar to Article 30 of the Universal Declaration of Human Rights
can be found in the International Covenant on Civil and Political
Rights (Article 5, paragraph 1) and the International Covenant on
Economic, Social and Cultural Rights (Article 5, paragraph 1).](/nw/images/icon_footnoteCall.png)
the
limitation clauses that often accompany specific rights can also
be considered to support the existence of this responsibility, as
these clauses allow for the limitation (or qualification) of human
rights in accordance with the legitimate needs of the democratic
society.
![(59)
See,
for example, Articles 8 to 11 of the Convention](/nw/images/icon_footnoteCall.png)
5.2. Specific responsibilities
5.2.1. Responsibility
to respect and protect life
- Every
person has a responsibility to respect and protect the life of others.
This does not exclude the right of justified self-defence of individuals
or communities. Every person has a responsibility to take reasonable
steps to help others whose lives are threatened, or who are in extreme
distress or need.
![(60)
The
wording of this principle is based on Article 5 of the InterAction
Council’s draft Universal Declaration of Human Responsibilities,
op. cit., and Article 3 of the Valencia Declaration of Human Duties
and Responsibilities, op. cit.](/nw/images/icon_footnoteCall.png)
47. The right to life “enshrines one of the basic values
of the democratic societies making up the Council of Europe”.
![(61)
European Court of Human
Rights, McCann v. the United Kingdom,
judgment of 27 September 1995, paragraph 147.](/nw/images/icon_footnoteCall.png)
It
necessarily entails the responsibility for each individual to respect
and, where necessary, protect the life of another human being. The
wording of Article 2 of the Convention itself obliges all member
states to protect the right to life by law; a responsibility to
respect and protect another person’s life can therefore already be
found as a legally enforceable duty in the legislation of all member
states. This responsibility can be considered to encapsulate the
absolute minimum behaviour required from every individual in a democratic society.
It is naturally limited by a right to self-defence, and by the exigencies
of armed conflict.
5.2.2. Responsibility
not to condone, support or participate in the commission of torture
or inhuman or degrading treatment
- Every
person has a responsibility not to condone, support or participate
in any manner in the commission of acts of torture or inhuman or
degrading treatment or punishment.
![(62)
The wording is based
on Article 24(2) of the Valencia Declaration of Human Duties and
Responsibilities, op. cit.](/nw/images/icon_footnoteCall.png)
48. This responsibility safeguards and evokes, at the
most basic level, the fundamental principle of human dignity. The
right to be free from torture and inhuman and degrading treatment
and punishment enjoys an absolute protection under the European
Convention on Human Rights.
![(63)
The
absolute character of this prohibition is stressed by the European
Court of Human Rights. See, for example, Saadi
v. Italy, judgment (Grand Chamber) of 28 February 2008,
paragraph 127.](/nw/images/icon_footnoteCall.png)
Just as it held with regard to
the right to life, the European Court of Human Rights held that
the right to be free from torture and inhuman and degrading treatment
“enshrines one of the basic values of the democratic societies making
up the Council of Europe”.
![(64)
McCann v. the United Kingdom, judgment
of 27 September 1995, paragraph 147.](/nw/images/icon_footnoteCall.png)
States also
have a positive obligation to make sure that all individuals within
their jurisdiction are protected against torture and inhuman and
degrading treatment or punishment, even by other individuals.
![(65)
See, for example, A. v. the United Kingdom, judgment
of 23 September 1998, paragraph 22.](/nw/images/icon_footnoteCall.png)
By consequence,
this responsibility, too, already enjoys a strong protection in
domestic legislation as an enforceable duty. Whereas the responsibility
to respect and protect another person’s life can be somewhat limited
in exceptional circumstances – such as, for example, self-defence
or armed conflict – the responsibility not to condone, support or
participate in any manner in the commission of acts of torture or
inhuman and degrading treatment or punishment is an absolute responsibility,
which can never be limited.
5.2.3. Responsibility
not to condone, support or in any manner participate in practices
of exploitation of others
- Every
person has a responsibility not to condone, support or in any manner
participate in practices of exploitation of others.
49. This principle builds on freedom from slavery, servitude
and forced or compulsory labour, guaranteed by Article 4 of the
Convention. This freedom could be called, in its modern form, freedom
from exploitation. It encompasses a protection against domestic
slavery
![(66)
Siliadin v. France, judgment of
26 July 2005, paragraphs 111-112, referring to Assembly Recommendation 1523 (2001) on domestic slavery, and Recommendation 1663 (2004) on domestic slavery: servitude, au pairs and “mail-order brides”.](/nw/images/icon_footnoteCall.png)
and
against trafficking of human beings.
![(67)
Rantsev
v. Cyprus and Russia, judgment of 7 January 2010, paragraph
282.](/nw/images/icon_footnoteCall.png)
States have a positive obligation to protect
individuals against acts of exploitation.
![(68)
Siliadin
v. France, judgment of 26 July 2005, paragraphs 89 and
112.](/nw/images/icon_footnoteCall.png)
One can derive from the existence of this
state obligation an individual responsibility not to engage in acts
of exploitation.
5.2.4. Responsibility
to respect other persons’ liberty
- Every
person has a responsibility to respect the right to personal liberty
of others.
![(69)
The
wording of this principle is based on Article 22 of the Valencia
Declaration of Human Duties and Responsibilities, op. cit.](/nw/images/icon_footnoteCall.png)
50. The responsibility to respect another person’s liberty
is of fundamental importance. It is the logical counterpart of the
right to liberty, which can be found in Article 5 of the Convention.
The European Court of Human Rights has held that this right is “in
the first rank of the fundamental rights that protect the physical security
of an individual” and that “as such its importance is paramount”.
![(70)
McKay
v. the United Kingdom, judgment (Grand Chamber) of 3
October 2006, paragraph 30.](/nw/images/icon_footnoteCall.png)
The Court has also
repeatedly stressed the importance of the right to liberty in a
democratic society.
![(71)
See,
for example, Winterwerp v. the Netherlands,
judgment of 24 October 1979, paragraph 37; Storck
v. Germany, judgment of 16 June 2005, paragraph 102.](/nw/images/icon_footnoteCall.png)
Any
deprivation of liberty must therefore have a clear basis in the
law
![(72)
Article 5
of the Convention; McKay v. the United
Kingdom, judgment (Grand Chamber) of 3 October 2006,
paragraph 30.](/nw/images/icon_footnoteCall.png)
and be subject to independent judicial
scrutiny.
![(73)
Kurt v. Turkey, judgment of 25 May
1998, paragraph 123.](/nw/images/icon_footnoteCall.png)
The effective fulfilment
of the right to liberty naturally implies that not only the state,
but also private individuals must refrain from arbitrarily depriving
any other person from his or her liberty. The state has a positive
obligation to ensure that private individuals respect each other’s
right to liberty in their mutual relationships;
![(74)
Storck
v. Germany, judgment of 16 June 2005, paragraph 102.](/nw/images/icon_footnoteCall.png)
a
legally enforceable duty to respect another person’s liberty therefore
already exists in the Council of Europe member states. Only in exceptional
situations which meet the conditions set forward by the Convention
– one could think, for example, of a “citizen’s arrest” – can the
individual’s responsibility to respect another person’s liberty
be limited.
5.2.5. Responsibility
to respect other people’s private life
- Every
person has a responsibility to respect another person’s private
life.
51. In a world which evolves around data and (digital)
private information, and in which this data and information can
be disseminated virtually at the speed of light, the recognition
of an individual responsibility to respect the private life of others
is indispensable. Just like the corresponding right to private life,
which is protected under Article 8 of the Convention, this responsibility
can be held to have a wide scope. The notion “private life”, for
example, has been held to include one’s personal identity, moral
or physical integrity, private space, the collection and use of
one’s information, social life and personal relationships.
![(75)
See, for example, S. and Marper v. the United Kingdom,
judgment (Grand Chamber) of 4 December 2008, paragraph 66.](/nw/images/icon_footnoteCall.png)
States
are under a positive obligation to guarantee the rights enshrined
in Article 8 of the Convention also against interferences by other
private individuals.
![(76)
See,
for example, X and Y v. the Netherlands,
judgment of 26 March 1985, paragraph 23.](/nw/images/icon_footnoteCall.png)
It is
therefore only logical that all individuals have a responsibility
not to violate another individual’s fundamental right to privacy.
5.2.6. Responsibility
to respect the reputation and honour of others
- Every
person has a responsibility to respect the reputation and honour
of others.
52. The responsibility to respect the reputation and
honour of others finds a solid basis in the European Convention
on Human Rights. Article 10 of the Convention, which deals with
freedom of expression, makes explicit mention in its paragraph 2
of “the protection of the reputation or rights of others” as one
of the legitimate aims for which an individual’s freedom of expression
may be limited. Moreover, the right not to be subjected to unlawful
attacks on one’s honour and reputation is explicitly mentioned in
Article 17 of the International Covenant on Civil and Political
Rights. The European Court of Human Rights considers that it is
an element of the right to respect for private life, guaranteed
by Article 8 of the Convention.
![(77)
Pfeifer
v. Austria, judgment of 15 November 2007, paragraph 35.](/nw/images/icon_footnoteCall.png)
It
has indirectly recognised an individual responsibility to respect
the reputation and honour of others on various occasions. In these
cases, the Court often had to make a balance between the freedom
of expression of journalists, on the one hand, and the reputation
and honour of individuals, on the other. In this day and age, when
information can be spread at enormous speed through various media
(for example, the Internet), significant damage to one’s reputation
and honour can already be done before the victim or the authorities
have time to react.
![(78)
See Mosley v. the United Kingdom, judgment
of 10 May 2011. The Court noted that there had been “a flagrant
and unjustified invasion of the applicant’s private life” (paragraph
104), but held that Article 8 did not require states to provide for
a legally binding pre-notification requirement (paragraph 132).
The absence of such an obligation illustrates the importance of
the responsibility of the media to refrain from publishing articles
that can do irreparable harm, without any justification based on
a public interest (see paragraph 114), to an individual’s reputation
and honour.](/nw/images/icon_footnoteCall.png)
The importance of an individual
responsibility with regard to another person’s reputation and honour
can therefore not be overstated. While case law has focused mainly
on the duties of journalists,
![(79)
See
in this regard also Article 14 of the InterAction Council’s draft
Declaration of Human Responsibilities, op. cit., which states that
“(s)ensational reporting that degrades the human person or dignity
must at all times be avoided”. An example of a case in which the
Court had to make the balance between an individual’s freedom of
expression and another individual’s private life is Shabanov and Tren v. Russia, judgment
of 14 December 2006.](/nw/images/icon_footnoteCall.png)
it is clear that such a
responsibility would be incumbent on any person participating in
the public debate.
![(80)
Steel and Morris v. the United Kingdom,
judgment of 15 February 2005, paragraph 90.](/nw/images/icon_footnoteCall.png)
5.2.7. Responsibility
to respect and ensure equal treatment and non-discrimination
- Every
person has a responsibility to take appropriate action to respect
and ensure the right to equal treatment and non-discrimination.
![(81)
The wording of this
principle is borrowed from Article 26 of the Valencia Declaration
of Human Duties and Responsibilities, op. cit; see also Articles
27-30 of the Valencia Declaration of Human Duties and Responsibilities,
op. cit.](/nw/images/icon_footnoteCall.png)
53. The responsibility to respect and ensure equal treatment
and non-discrimination is indispensable in order to safeguard the
equality of all individuals; it is therefore a fundamental responsibility
in a democratic society. The Council of Europe plays a pivotal role
in combating discrimination, through its European Commission against
Racism and Intolerance
![(82)
<a href='http://www.coe.int/t/dghl/monitoring/ecri'>www.coe.int/t/dghl/monitoring/ecri</a>.](/nw/images/icon_footnoteCall.png)
and its activities in the field
of promoting the equality of men and women.
![(83)
<a href='http://www.coe.int/t/dghl/standardsetting/equality'>www.coe.int/t/dghl/standardsetting/equality</a>.](/nw/images/icon_footnoteCall.png)
A basis for the responsibility to
respect and ensure equal treatment and non-discrimination can be
found in Article 14 of the Convention, which deals with discrimination
in respect of rights set forth in the Convention, and in Protocol
No. 12 to the Convention, which deals with discrimination in respect
of any right set forth by law. Although these provisions do not
deal with the purely private relations between individuals (as this
would violate other rights of these individuals, such as the right
to private life), it can be argued that an individual responsibility
to respect and ensure equal treatment and non-discrimination is
essential in order to ultimately give full effect to the protection
of human rights for everybody. A responsibility to respect and ensure equal
treatment and non-discrimination can also be grounded in the revised
European Social Charter, Article 20 of which guarantees the right
of all workers “to equal opportunities and equal treatment in matters
of employment and occupation without discrimination on the grounds
of sex” and in European Union rules, such as Council Directives
2000/43/EC (the “Racial Equality Directive”), 2000/78/EC (the “Employment
Equality Directive”) and 2004/113/EC (the “Gender Directive”), and
in various other human rights instruments such as, for example,
the 1966 International Covenant on Civil and Political Rights, the
1965 International Convention on the Elimination of All Forms of
Racial Discrimination and the 1979 Convention on the Elimination
of All Forms of Discrimination against Women.
5.2.8. Responsibility
to acquire an education
- Every
person has a responsibility to acquire an education and to develop
his or her talents through diligent endeavour.
![(84)
The wording of this
principle is partly borrowed from Article 10 of the InterAction
Council’s draft Universal Declaration of Human Responsibilities,
op. cit.](/nw/images/icon_footnoteCall.png)
54. The underlying idea of the responsibility to acquire
an education is that an individual should develop his or her capacities
in such a way as to be able to make a meaningful contribution to
society. The acquisition of a basic formal education has generally
been regarded as a right, but it is also often referred to as a
legally enforceable duty in many instruments and legal systems,
due to its compulsory nature. A responsibility to acquire at least
a basic education therefore finds a solid basis in, for example,
the revised European Social Charter, which protects the right of
children to compulsory education.
![(85)
Article 7, paragraphs
1 and 3, of the revised European Social Charter.](/nw/images/icon_footnoteCall.png)
Examples
of other provisions which deal with the acquisition of an (elementary)
education both as a right and as a (legally enforceable) duty include Article
26, paragraph 1, of the Universal Declaration of Human Rights and
Article 13, paragraphs 1 and 2, of the International Covenant on
Economic, Social and Cultural Rights. A restricted and minimal version
of this responsibility would entail the responsibility to acquire
a basic education, while a more extensive interpretation could entail
a responsibility to develop one’s skills to the best of one’s capabilities.
![(86)
See, for example, Article
25 of the pre-draft Declaration on Human Social Responsibilities,
op. cit.](/nw/images/icon_footnoteCall.png)
5.2.9. Responsibility
to work
- Every
person has a responsibility to work.
55. Together with the responsibility to acquire an education,
the responsibility to work can be regarded as part of a more encompassing
obligation to make a meaningful contribution to society. Just like
the responsibility to acquire an education, the engagement to work
is both a right and a responsibility.
![(87)
For the right to work,
see, inter alia, Article 1
of the revised European Social Charter.](/nw/images/icon_footnoteCall.png)
The responsibility
to work is naturally limited by the physical and intellectual capacities
of a person.
![(88)
See
in this regard also Article 24 of the pre-draft Declaration on Human
Social Responsibilities, op. cit.](/nw/images/icon_footnoteCall.png)
Provisions
in international human rights instruments, such as Article 23, paragraph
1, of the Universal Declaration of Human Rights and Article 6, paragraph
1, of the International Covenant on Economic, Social and Cultural
Rights, regard work as a right. It is important to note that the
responsibility to work has been clearly delimited in human rights
case law. With the exception of certain situations, such as, for
example, compulsory military service and certain other civic obligations
(see principle XI), a legal obligation forcing people to work (with
or without a penalty in case they do not comply) would violate international
human rights law.
![(89)
International
Labour Organization Conventions Nos. 29 and 105. See E.-I. A. Daes, supra footnote 22, p. 62. See also
Report III (part 4 B), “General Survey of the Reports relating to
the Forced Labour Convention, 1930 (No. 29), and the Abolition of
Forced Labour Convention, 1957 (No. 105)”, International Labour
Conference, 65th Session, 1979 (Geneva), paragraph 45.](/nw/images/icon_footnoteCall.png)
5.2.10. Responsibility
to perform civic obligations
- Every
person has a responsibility to perform civic obligations.
56. The responsibility to perform civic obligations must
be regarded as paramount for the functioning and cohesion of any
democratic society. A number of obligations can be required from
an individual for the benefit of society, and the fulfilment of
these obligations naturally will not be considered to be any kind
of forced labour. These obligations are called “civic obligations”,
and they comprise a wide range of diverse activities which are all,
however, indispensable for the organisation and functioning of the
society. A basis for this responsibility can be found in Article
4, paragraph 3.
d, of the Convention,
which states that “any work or service which forms part of normal
civic obligations” is not included in the term “forced and compulsory
labour” (prohibited by the Convention). The European Court of Human
Rights has held that, for example, compulsory jury service
![(90)
Zarb
Adami v. Malta, judgment of 20 June 2006.](/nw/images/icon_footnoteCall.png)
and compulsory
fire service
![(91)
Karlheinz Schmidt v. Germany, judgment
of 18 July 1994.](/nw/images/icon_footnoteCall.png)
can be considered normal civic
obligations. The former European Commission of Human Rights similarly
held that an obligation upon an employer to withhold taxes from
the wages of an employee
![(92)
Four Companies v. Austria, decision
of 27 September 1976.](/nw/images/icon_footnoteCall.png)
is not in violation of
the European Convention on Human Rights.
5.2.11. Responsibility
to participate in the democratic process
- Every
person has a responsibility to participate in the democratic process.
57. In order for a democratic society to exist, let alone
to thrive, the active participation of its members is essential.
This participation can take various forms. One possible means of
participation for an individual can be, for example, to cast a vote.
The issue of voting can be regarded as both a right and a responsibility.
Article 3 of Protocol No. 1 to the European Convention on Human
Rights states that member states must organise elections “which
will ensure the free expression of the opinion of the people in
the choice of the legislature”. The Court has held that “[d]emocracy
constitutes a fundamental element of the 'European public order'”.
It also noted that the Convention's preamble “establishes a very
clear connection between the Convention and democracy by stating
that the maintenance and further realisation of human rights and
fundamental freedoms are best ensured … by an effective political
democracy”.
![(93)
Ždanoka v. Latvia, judgment (Grand
Chamber) of 16 March 2006, paragraph 98.](/nw/images/icon_footnoteCall.png)
It added
that “democracy is the only political model contemplated by the
Convention and, accordingly, the only one compatible with it”.
![(94)
Ibid.](/nw/images/icon_footnoteCall.png)
The
aim of an electoral procedure in such a democracy is to identify
“the will of the people through universal suffrage”.
![(95)
Hirst
v. the United Kingdom, judgment (Grand Chamber) of 6
October 2005, paragraph 62.](/nw/images/icon_footnoteCall.png)
While it can be
a legally enforceable duty to go to the polling stations (as it
is, for example, in Belgium),
![(96)
See,
for example, H. Dumont and F. Tulkens, supra footnote
16, pp. 197-207.](/nw/images/icon_footnoteCall.png)
the establishment of such a
duty is not required by Protocol No. 1. In view of the fundamental
nature of democracy in the society envisaged by the Council of Europe,
a responsibility – not a duty – to vote, or at least to participate
in some way or another in the democratic process, can be discerned.
This is reinforced by the emphasis the Court has placed on the universal
nature of the suffrage, and the importance of the fact that no groups
of people should be arbitrarily left out.
![(97)
Ibid., paragraph 59.](/nw/images/icon_footnoteCall.png)
The
need for the widest possible participation in elections aimed at
sustaining the democratic nature of society therefore requires an
individual responsibility to participate in this democratic process.
5.2.12. Responsibility
to show solidarity
- Every
person has a responsibility to show solidarity towards other members
of the community.
58. Every individual has a fundamental responsibility
to show solidarity towards other members of the community. This
responsibility can take different forms, depending on the specific
system of solidarity organised in the relevant community. For instance,
solidarity
can entail a responsibility
to pay taxes and to contribute to a national system of social welfare.
The responsibility to contribute to the social security system matches
the right to social security guaranteed by Article 22 of the Universal
Declaration of Human Rights, Article 9 of the International Covenant
on Economic, Social and Cultural Rights, Article 34 of the European Union
Charter of Fundamental Rights and ILO Convention No. 102. The revised
European Social Charter in particular guarantees “the right to social
security” (Article 12) and “the right to benefit from social welfare services”
(Article 14). It is clear that these rights cannot exist without
a corresponding responsibility for individuals.
![(98)
See, for example, E.
Eichenhofer, “What a right – The right to social security”, in J.
Van Langendonck (ed.), The Right to Social
Security, Antwerp, Intersentia (Social Europe Series,
12), 2007, p. 162.](/nw/images/icon_footnoteCall.png)
As regards the responsibility
to pay taxes, Article 1 of Protocol No. 1 to the European Convention on
Human Rights explicitly allows states to raise taxes. Generally
speaking, the responsibility of solidarity can also be based on
Article 1 of the Universal Declaration of Human Rights.
5.2.13. Responsibility
towards children
- Every
person has a responsibility to take appropriate action to respect,
ensure and protect the rights of the child. Parents have a special
responsibility towards their children.
![(99)
The first part of the
wording of this principle is partly borrowed from Article 33 of
the Valencia Declaration of Human Duties and Responsibilities, op.
cit.](/nw/images/icon_footnoteCall.png)
59. Children are the future of our planet. They are also,
by nature, in a vulnerable position and therefore need to be guaranteed
protection. All individuals have a responsibility to promote and
enforce the rights and the well-being of children. Parents (or legal
guardians), however, can be held to have a special responsibility towards
the children in their care. The child’s best interests must always
be the first and primary consideration.
![(100)
See in this regard
the repeated reference to this notion in the 1989 Convention on
the Rights of the Child.](/nw/images/icon_footnoteCall.png)
The Court has, for example,
accepted the possibility of interferences with the rights of parents in
order to protect the health and morals of children,
![(101)
Margareta
and Roger Andersson v. Sweden, judgment of 25 February
1992.](/nw/images/icon_footnoteCall.png)
and, more generally, the children’s rights
and freedoms.
![(102)
Olsson v. Sweden, judgment of 24
March 1988.](/nw/images/icon_footnoteCall.png)
Article 5 of Protocol No. 7 to the
European Convention on Human Rights makes reference to the equality
of rights and responsibilities between spouses in their relations
with children, but it also mentions that states can interfere when
the “interests of the children” so require. A reference to the privileged
relationship between children and parents can be found in Article
18 of the InterAction Council’s draft Universal Declaration of Human
Responsibilities. A parental duty to maintain and educate minor
children can be found in a number of international human rights
instruments. A somewhat vague reference – vague, as it only refers
to “the family” and not to individuals – can be found in the International
Covenant on Civil and Political Rights (Article 24, paragraph 1)
and the International Covenant on Economic, Social and Cultural
Rights (Article 10, paragraph 1). Article 7 of the revised European
Social Charter protects the right of “children and young persons”
to “a special protection against the physical and moral hazards
to which they are exposed”, while the Charter’s Article 17 states
that “[c]hildren and young persons have the right to appropriate
social, legal and economic protection”. Naturally, the Convention
on the Rights of the Child contains many more detailed provisions regarding
the responsibility towards children.
![(103)
See Articles 3, paragraph
2, 5, 14, paragraph 2, 18, paragraph 1, and 27, paragraph 2, of
the Convention on the Rights of the Child. References can also be
found in Article 26 of the pre-draft Declaration on Human Social Responsibilities,
op. cit.](/nw/images/icon_footnoteCall.png)
In its
Recommendation 1501 (2001) on parents’ and teachers’ responsibilities in children’s
education, the Assembly also stressed that parents are the “first
educators” of a child, and as such “have the right and duty to lay
the intellectual and emotional bases for their children’s lives, and
to help develop their system of values and attitudes” (paragraph
3).
5.2.14. Responsibility
towards the elderly and disabled
- Every
person has a responsibility to take appropriate action to respect
and ensure the rights and the well-being of the elderly and the
disabled.
![(104)
The
wording of this principle is inspired by Article 34 of the Valencia
Declaration of Human Duties and Responsibilities, op. cit.](/nw/images/icon_footnoteCall.png)
60. In today’s fast-evolving world, elderly and disabled
people are all too often left behind and forgotten. While methods
of communication have never been so abundant, many elderly and disabled
people often find themselves in lonely isolation. Moreover, as physical
capabilities diminish with age, or through unfortunate events such
as accidents, elderly and disabled people can become increasingly
dependent on others, notably (in the case of elderly people) younger
generations. While responsibility for the elderly is not generally
a responsibility which is explicitly recognised, the Assembly has
in the past already devoted explicit attention to the position of
elderly persons in Europe.
![(105)
See Recommendation 1796 (2007) on the situation of elderly persons in Europe.](/nw/images/icon_footnoteCall.png)
It
follows from the very foundation of human rights, namely the principle
of human dignity, that special care should be devoted to those who,
on their own, might not or no longer be able to secure for themselves
the circumstances in which to live a life in dignity. Article 23
of the revised European Social Charter explicitly states that “[e]very
elderly person has the right to social protection”. It would appear
that adult children have a special responsibility vis-à-vis their
parents. As regards persons with a disability, an individual responsibility
also finds a basis in Article 15 of the revised European Social
Charter, which states that “[d]isabled persons have the right to
independence, social integration and participation in the life of
the community”. Inspiration can also be found in the United Nations
Convention on the Rights of Persons with Disabilities (2006), which
calls on states to guarantee that persons with a disability have
the same enjoyment of fundamental rights and freedoms. For example,
states are called upon to make sure that “reasonable accommodations”
are provided to guarantee the equality of persons with a disability.
It is logical that individuals, too, when exercising their individual
rights towards persons with a disability, have a responsibility
to make a reasonable effort to “accommodate” the disabled person.
An individual responsibility towards the elderly and disabled is
also paramount to effectuating the aims set forth in the Council
of Europe’s Disability Action Plan 2006-2015.
![(106)
See Committee of Ministers'
Recommendation Rec(2006)5 on the Council of Europe Action Plan to
promote the rights and full participation of people with disabilities
in society: improving the quality of life of people with disabilities
in Europe 2006-2015, adopted on 5 April 2006, and its appendix.](/nw/images/icon_footnoteCall.png)
5.2.15. Responsibility
for the environment
- Every
person has a responsibility to respect and protect the air, water
and soil of the earth for the sake of present and future generations.
![(107)
The text of this principle
is inspired by Article 7 of the InterAction Council’s draft Universal
Declaration of Human Responsibilities, op. cit. It can, however,
also be founded on other texts, such as Article 9 of the Valencia
Declaration of Human Duties and Responsibilities, op. cit; on UNESCO’s
Declaration on the Responsibilities of the Present Generations Towards
the Future Generations of 1997, adopted on 12 November 1997 by the
General Conference of UNESCO at its 29th Session, <a href='http://www.unesco.org/cpp/uk/declarations/generations.pdf'>www.unesco.org/cpp/uk/declarations/generations.pdf</a>; the Convention for the Protection of the World Cultural
and Natural Heritage, adopted by the General Conference of UNESCO
on 16 November 1972, <a href='http://whc.unesco.org/archive/convention-en.pdf'>http://whc.unesco.org/archive/convention-en.pdf</a>; the United Nations Framework Convention on Climate
Change and the Convention on Biological Diversity, adopted in Rio
de Janeiro on 5 June 1992, <a href='http://www.cbd.int/doc/legal/cbd-en.pdf'>www.cbd.int/doc/legal/cbd-en.pdf</a>; the Rio Declaration on Environment and Development,
adopted by the United Nations Conference on Environment and Development
on 14 June 1992, <a href='http://www.un.org/documents/ga/conf151/aconf15126-1annex1.htm'>www.un.org/documents/ga/conf151/aconf15126-1annex1.htm</a>; the Vienna Declaration and Programme of Action, adopted
by the World Conference on Human Rights on 25 June 1993, <a href='http://www.unhchr.ch/huridocda/huridoca.nsf/%28Symbol%29/a.conf.157.23.en'>www.unhchr.ch/huridocda/huridoca.nsf/%28Symbol%29/a.conf.157.23.en</a>. See also Article 15 of the pre-draft Declaration on
Human Social Responsibilities, op. cit.](/nw/images/icon_footnoteCall.png)
61. In the course of the past decades, it has become
increasingly clear that environmental balances are highly delicate,
and that the impact of human activity upon the environment can have
long-term destructive consequences. It is therefore of the utmost
importance, for the present and the future generations, that every individual
assumes responsibility for the protection and conservation of the
environmental riches. While this responsibility is often phrased
as a collective one, it would be illogical not to confer it upon
each individual separately. Many examples in human rights case law,
including that of the European Court of Human Rights,
![(108)
See, inter alia, Hatton
v. the United Kingdom, judgment (Grand Chamber) of 8
July 2003, and Öneryildiz v. Turkey, judgment
(Grand Chamber) of 30 November 2004.](/nw/images/icon_footnoteCall.png)
have already
indicated how destructive the impact of man-made environmental problems
can be for the protection of human rights. The Council of Europe
has also taken an active interest in the issue: in November 1998,
the Convention on the Protection of Environment through Criminal
Law (ETS No. 172) was opened for signature. The convention obliges
states to adopt measures to deal with a wide range of environmental
crimes. This convention has not yet entered into force. However,
the work by the Council of Europe shows that there is a broad agreement
on the existence of an individual responsibility for the environment.
5.2.16. Responsibility
to respect community and private property
- Every
person has a responsibility of respect towards property belonging
to another person or to the community.
62. This responsibility is partly a logical counterpart
of the right to protection of individual property which can be found
in Article 1 of Protocol No. 1 to the Convention. However, it is
clear that the responsibility should extend further than just to
show respect for the property of other individuals. Whenever community
property and infrastructure is damaged, this has a direct impact
on the legitimate interests of society. The individual responsibility
to respect property must therefore also include a responsibility
to respect “society’s property”, in its broadest meaning.
5.3. Final clause
- The
aforementioned responsibilities can never be construed as impairing,
restricting or derogating from the rights and freedoms contained
in the European Convention on Human Rights and its protocols, the revised
European Social Charter and other international and regional human
rights instruments.
63. Responsibilities must always be reasonable, and cannot
bring an individual’s fundamental rights into jeopardy. They must,
in the first place, serve as guidance to the individual in the exercise
of his or her fundamental rights. When responsibilities are transposed
into legally enforceable duties, the burden which is placed on the
individual must strike a fair balance between the various interests
at stake. A disproportionate burden is always inadmissible. It is
up to the member states to determine the exact scope of such duties,
as long as in so doing they respect the constraints provided by
the European Convention on Human Rights, the revised European Social
Charter and other relevant international and domestic human rights
instruments.
![(109)
See,
for example, Article 53 of the Convention.](/nw/images/icon_footnoteCall.png)
6. Conclusions
64. Without acknowledging the existence of individual
responsibilities, no democratic society, can survive, let alone
thrive. However, the protection and promotion of human rights must
be central to any approach regarding fundamental responsibilities.
It is exactly such an approach based on human rights that can fully contribute
to a more accurate description of the status of the individual within
society, and truly strengthen the democratic framework within which
fundamental rights are invoked. A human rights based approach to fundamental
responsibilities is therefore indispensable to the effective protection
and promotion of human rights and democracy within the member states.
65. The proposed draft resolution, which identifies a number of
fundamental responsibilities which are already widely accepted,
therefore marks an important contribution towards a better protection
and promotion of democratic values and fundamental rights within
the Council of Europe member states.