Oleksandra Zinchenko, Oleksandra Kalinina, ME 110-i, KNEU
“Human rights” becomes the order of the day, which almost everyone try to talk about. In recent years, thereby, this question only intensifies attention of those, whose own right are to be violated. To discuss the issue to more clear degree, the history of establishing human rights should be regarded firstly.
Human rights are complicated, multidimensional phenomenon. In various period of time, the problem of this rights, unchangeably remaining political and legal, acquired a religious-ethical, philosophical sounding. Following this, especially the fight for human rights, for new comprehension of freedom became the departure for wide-ranging changes in the socio-political life of the country, led to the reconsideration of the role of human in his relations between the society and the government.
Then, when does the history of creating such an important relation take its origins?
The origins of the phenomenon, which later became known as human rights, date back to the earliest times of human history. Ideas about the value and inviolability of life, the equality of people before higher powers are contained in ancient myths and beliefs. Later, such views became widespread in ancient Greece. In the works of ancient Greek sophist thinkers in the VI-V cent. B.C. were laid the foundations of the concept of natural law, later developed by philosophers and lawyers of ancient Rome. Similar ideas arose in the East. In particular, the Chinese thinker Mo Tzu (5th century B.C.) argued that all people are equal before heaven, and the state is the result of their agreement. A number of humanistic principles were given to the world by Christianity, which integrated the notion of human rights with religious and moral values. By the joint efforts of many generations, intellectual material was accumulated, and a moral and philosophical basis was created for the establishment of the all-conquering idea of human rights in the future.
Whereas, at the legislative level, this idea began to be implemented much later. Adopted in 1215 in England, the Grand Charter of Freedoms is traditionally considered the first legal document, which laid the foundations of the concept of human rights, created the preconditions for the further establishment of freedom and the rule of law in society. The Charter, in particular, enshrined such important principles as the proportionality of the act and the punishment for it, strict observance of the law by officials, conviction only by a court decision, the right to free entry and exit from the country, and others. After numerous acts, which emphasized each other, more than 700 years later, in 1948 “The United Nations” adopted the Universal Declaration of Human Rights, the first universal document to proclaim international civil, political, socio-economic and cultural rights at the international level, setting the standards and ideals that all countries strive to follow today.
These provisions give a general idea of the development of the concept of human rights in different countries in different historical epochs. Having common features, their establishment in each country took place in their own way, different from others, taking into account national legal and cultural traditions. We can say that modern universally recognized standards in the field of human rights reflect the centuries-old experience of all peoples of the world, are the common property of all mankind.
What impact did the last declaration perform on genesis of human rights and freedoms in the lands of Ukraine?
If one will recall the mighty Kyivan Rus (IX-XII cent.), a well-known state in the world at that time, which had developed and multifaceted international relations, a high level of social, economic and political development.
It will be not a senseless notation that due to the coincidence of a number of historical circumstances, Russia did not know the inhuman in its attitude to the personal freedom of the slave system, although some of its features in the form of slavery and took place. Ancient customary law – the Russian law created certain legal guarantees, enshrined the gradual rejection of the barbaric principles of bloody revenge and talion, limited arbitrariness and regulated the daily life of the population of Kyivan Rus.
A sign of real democracy were the “ranks” – the treaties that the inhabitants concluded with their princes. And treaties with Byzantium in the tenth century. testified and noticeable religious tolerance of our ancestors.
The legal basis of Kyivan Rus was “Rus`ka Pravda” (1036-1037) – the first written codification act of Russian feudal law, the authorship of which is associated with the names of Yaroslav the Wise and his descendants. In many respects, “Rus`ka Pravda” differed favorably in its relative humanism and legal technique from similar European “barbaric truths”.
The Code regulated a wide range of public relations, including norms directly related to the individual, his rights and freedoms.
In particular, property relations and hereditary relations were widely regulated. A number of norms enshrined the absence of the death penalty, martyrdom or torture during interrogation, restrictions, and subsequently the prohibition of blood feuds, and various legal mechanisms to protect the life, honor, and dignity of the individual.
The entire subsequent history of long standing of our people is a vivid example of the selfless struggle of the Ukrainian nation for self-determination, the creation of its own independent state. Some time later, on Ukrainian lands as part of the Grand Duchy of Lithuania in Lithuanian statutes (1529, 1566, 1588) on the basis of “Rus`ka Pravda” a number of fundamentally new approaches to the status of the person were consolidated.
In parallel with the Lithuanian statutes, the Magdeburg law became more and more important in Ukrainian cities, which became the basis of their self-government and judicial immunity, a kind of guarantor against feudal arbitrariness.
Similarly, while part of the Ukrainian lands from the 14th cent. was under the rule of Poland, Zaporizhzhya Sich – “Cossack Christian Republic”, where the ideals of freedom, equality and respect for human dignity prevailed was in constant struggle with the royal authorities and magnates.
The next Cossack-Hetman era is one of the most dramatic and interesting pages in the history of Ukraine. Through the efforts of Bohdan Khmelnytsky and his comrades-in-arms, the Polish nobility system was overthrown in a large part of Ukraine and a Cossack state was created, which gained international recognition and whose existence was considered by the leading European states.
The Treaty of Pereyaslav on January 8 (18), 1654, the March Articles and other acts that strengthened the Ukrainian-Moscow alliance, although providing for a protectorate of the Moscow tsar, left Ukraine a separate state body with its own political and legal system, administration, courts, army, and finances.
That is, first of all, it was a factual assertion of Ukrainian statehood, where the socio-political system and the relationship between the Cossack elite and the Cossack masses were based on the most democratic principles of contemporary Europe. Through the efforts of the Cossacks, conditions were created for the restoration of plundered national, religious and economic rights. Serfdom was abolished, but soon, as we know, Ukrainian peasants were again enslaved.
The peak of Cossack rule-making is to some extent considered to be the Constitution of Pylyp Orlyk of 1710. In different historical and legal sources, this document is called differently (Bender`s Constitution, “Constitution of Rights and Freedoms of the Zaporozhian Army”, the agreement between the Zaporozhians and the Hetman of Malorossia).
After Ukraine became part of Muscovy and then the Russian Empire, many Ukrainian thinkers turned to political and legal ideas of humanitarian content. In particular, the Ukrainian political and legal platform was developed in the works of Mikhail Drahomanov. In the last quarter of the XIX century.
Drahomanov developed the constitution of society, which was based on the idea of association of harmonious personalities. In M. Drahomanov’s constitutional project “Free Union” the most important task was the restructuring of the Russian state on the basis of political freedom.
Drahomanov’s draft constitution provided for the right to sue an official or government agency for unlawful violation of a person’s interests, the right to resist the illegal actions of officials, and the full equality of all in civil rights and responsibilities.
Drahomanov’s humanistic political and legal conceptions were further developed in the works of Mykhailo Hrushevsky, in particular in his 1905 constitutional draft. This project provided for the right of Ukrainians to Ukrainian citizenship, equality of women and men, ensuring personal freedom, separation of church and state, and so on.
The 3rd Universal of the Ukrainian Central Council on November 20, 1917 was proclaimed the Ukrainian People’s Republic on the rights of autonomy as part of the Russian Republic, and the 4th Universal of the Central Council on January 22, 1918. The Ukrainian People’s Republic was proclaimed an independent and sovereign state. April 29, 1918 the Constitution of the Ukrainian People’s Republic was adopted (approved by the session of the Central Rada, but did not enter into force).
However, on the same day, the Hetman’s coup of Pavel Skoropadsky overthrew the Central Rada. Subsequently, a number of constitutional acts of the Hetmanate, the Directory and the Western Ukrainian People’s Republic were adopted, which enshrined a fairly wide range of political and personal rights and freedoms of citizens of Ukraine.
Real democratic transformations were also carried out, the effectiveness of which was markedly reduced as a result of a sharp, often bloody struggle for power.
During the Soviet era, four constitutions were adopted in Ukraine (1919, 1929, 1937, 1978). These acts consolidated the positive consequences of the social revolution and the formal attributes of Ukrainian Soviet statehood.
In particular, the Constitution of the USSR in 1937. enshrined a wide range of rights and freedoms, the leading place among which were:
- economic rights (the right to personal property and the right to inherit personal property, the right to work, the right to rest);
- social rights (the right to material security in old age, in case of illness and disability);
- cultural rights (right to education);
- political rights (freedom of speech, press, assembly and rallies, street marches and demonstrations, freedom of conscience, the right to associate in public organizations);
- personal rights (inviolability of the person, inviolability of the home, secrecy of correspondence);
- suffrage (enshrined in a separate section).
Speaking about the international legal personality of the former USSR and its participation in international relations, it is primarily about its efforts to ensure human rights and freedoms.
In particular, at the First Session of the UN General Assembly, Ukraine, together with 17 countries, was elected a member of the UN Economic and Social Council in 1947 became a member of the Economic Commission for Europe, in 1948-1949. and in 1984–1985. was elected a temporary member of the UN Security Council. Many proposals of the Ukrainian SSR at international forums were approved and implemented.
It was on the initiative of the Ukrainian delegation in 1948. at a conference in San Francisco, a committee headed by the head of the Ukrainian delegation Manuilsky formulated the preamble, goals and principles of the UN Charter. At his suggestion, a number of important provisions on universal respect for human rights and fundamental freedoms were included in the UN Charter.
Against the background of all previous Soviet constitutions, the Constitution of the USSR on April 20, 1978. favorably differs in both the structure and scope of enshrined rights and freedoms. It devoted two chapters to the status of a person, a separate chapter regulated the basic principles of citizenship, determined the status of foreigners and stateless persons in Ukraine, established equality of citizens’ rights before the law, equality of rights of men and women.
A whole chapter was also devoted to the fundamental rights, freedoms and responsibilities of citizens, proclaiming the full rights of citizens in all major areas, in particular, Article 37 stated that citizens of the USSR have full socio-economic, political and personal rights and freedoms. guaranteed by the Constitution of the USSR, the Constitution of the USSR and laws.
The possibility of expanding the rights and freedoms of citizens as the implementation of the program of society development was proclaimed. At the same time, the human rights standards enshrined in international legal acts to which the Ukrainian SSR was a party were not fully taken into account.
In the system of rights and freedoms, priority was given to socio-economic and cultural rights. In practice, this category of rights is most realistically implemented.
These are, first of all, the right to work, rest, health care, housing, the right to use state property, the right to personal property, which was somewhat limited. Cultural rights proclaimed the right to education, which was ensured by free education and compulsory secondary education, the right to enjoy cultural achievements, and freedom of scientific, technical, and artistic creativity.
Political, civil, and personal rights and freedoms, as in previous Soviet constitutions, played a secondary role. This category of rights and freedoms included: the right to participate in the management of state and public affairs; the right to make proposals to state bodies and public organizations, to criticize shortcomings in their work; freedom of speech, press, assembly, rallies, marches and demonstrations.
These provisions were mostly declarative and did not have appropriate mechanisms for their implementation.
Personal rights included the inviolability of the person and the home, the state’s protection of the privacy of citizens, the secrecy of correspondence, and so on.
A novelty among personal rights was the consolidation of the right of citizens to appeal against the actions of officials of state and public bodies. Complaints were to be considered in the manner and within the time limits established by law. The actions of officials committed in violation of the law could be challenged in court.
Proclamation August 24, 1991 independence of Ukraine opened a new page in the history of our state and its people, made it possible to expand the rights and freedoms of citizens, to fill them with new meaning and significance.
In the Declaration of State Sovereignty of Ukraine of July 16, 1990. and the address of the Verkhovna Rada of Ukraine “To the parliaments and peoples of the world” on December 5, 1991.
It was emphasized that the family of civilized countries wants to enter a new, democratic, legal state, which aims, in particular, to effectively ensure the rights, freedoms of man and citizen and undertakes to strictly adhere to generally accepted principles and norms of international law and international law. standards in the field of human rights and freedoms.
Constitution of Ukraine 1996 is to some extent a model of modern constitutionalism on human and civil rights and freedoms. It defined a qualitatively new, modern status of a person and a citizen in Ukraine, carrying out a de facto “humanitarian revolution”.
Man, his life, honor and dignity, inviolability and security are recognized in the Constitution (Article 3) as the highest social value. The rights and freedoms of man and citizen are the content and direction of the state. According to the Constitution, the state is accountable to the individual for its activities.
The establishment and protection of human rights and freedoms is the main duty of the state. Based on this concept, the current Constitution of Ukraine devotes a special section II to the rights, freedoms and responsibilities of man and citizen. This section is one of the most important in the Constitution and contains about a 3rd of its articles.
An additional guarantee for the protection of human rights and freedoms is also the international mechanisms for the protection of human rights, to which Ukraine has joined. An important step in this direction was the ratification on July 17, 1997.
Convention for the Protection of Human Rights and Fundamental Freedoms of 1950. From now on, citizens of Ukraine have the opportunity to apply to the European Court of Human Rights for protection of their violated rights. In addition, joining in 1990. to the Optional Protocol to the International Covenant on Civil and Political Rights of 1966, Ukraine also recognized the competence of the UN Human Rights Committee to consider individual complaints of Ukrainian citizens about violations of their rights and freedoms guaranteed by this pact.
The Constitution of Ukraine legally eliminated all normative obstacles to ensuring human and civil rights and freedoms, declaring that the norms of the Constitution of Ukraine are norms of direct action and that recourse to the court to protect constitutional human and civil rights and freedoms directly on the basis of the Constitution of Ukraine is guaranteed.
So what`s the Rule of Law and how it is connected with the human rights?
The rule of law is a durable system of laws, institutions, norms, and community commitment that delivers:
- Just Laws
The laws are clear, publicized, and stable; are applied evenly; and protect fundamental rights, including the security of persons and contract, property, and human rights.
- Accessible Justice
Justice is delivered timely by competent, ethical, and independent representatives and neutrals who are accessible, have adequate resources, and reflect the makeup of the communities they serve.
- Open Government
The processes by which the laws are enacted, administered, and enforced are accessible, fair, and efficient.
The government as well as private actors are accountable under the law.
These four universal principles constitute a working definition of the rule of law. They were developed in accordance with internationally accepted standards and norms, and were tested and refined in consultation with a wide variety of experts worldwide.
There are about 8 primary factors of the Rule of Law:
- Constraints on Government Powers
- Open Government
- Absence of Corruption
- Order and Security
- Civil Justice
- Fundamental Rights
- Regulatory Enforcement
- Criminal Justice
The human rights movement has increasingly encountered conceptual, normative and political challenges. Perhaps, as de Mello suggested, rule of law will be a “fruitful principle to guide us toward agreement and results,” and “a touchstone for us in spreading the culture of human rights.”
We still live in a world where widespread human rights violations are the norm rather than the exception. Rule of law is seen as directly integral to the implementation of rights.
Rule of law may also be indirectly related to better rights protection in that rule of law is associated with economic development, which is related to better rights performance.
Rule of law is integral to and necessary for democracy and good governance. Attempts to democratize without a functional legal system in place have resulted in social disorder.
Rule of law is said to facilitate geopolitical stability and global peace. According to some, it may help prevent wars from occurring in the first place. Strengthening the rule of law involves respect for the norms of international law, including on the use of force, and recognition of the primary responsibility of States to protect their populations from genocide, crimes against humanity, ethnic cleansing and war crimes.
The rule of law is a core element of the humanitarian and human rights agendas; is crucial to understanding and addressing the reasons for displacement and statelessness; and is the foundation of the humanitarian protection regime.
But what about relationship of the human rights and rule of law in Ukraine?
Operating Constitution of Ukraine implemented all substantive provisions of acts of inreanational law on human and first of all General declaration of human, international pact about civil and political rights and international pact rights about economic, social and cultural rights that are one of most achievements of humanity of XX century to the humanitarian sphere, real “human measuring”, measure of human dignity.
Operating Constitution of Ukraine first instead of fragmentary set of rights and freedoms defined the system of rights and freedoms in all basic spheres, envisaging, in particular, civil, political, economic, social and cultural laws and freedoms of man and citizen.
A constitution guarantees rights and freedoms all-round, envisages the mechanism of their providing and guard. The system of constitutional normatively-legal guarantees of rights and freedoms testifies foremost about it, in particular, legal responsibility for violation of rights and freedoms, inalienability and inviolability of rights and freedoms, their inexhaustibility, unadmission of abolition, narrowing of maintenance and volume of existent rights and freedoms.
One of most progressive achievements is a system of organizational-law guarantees, among that an especially considerable role is taken to President of Ukraine, Supreme soviet of Ukraine, executive and local self-government bodies, courts, office of public prosecutor and authorized Agent of Supreme soviet of Ukraine on human rights, is envisaged in guaranteeing of rights and freedoms.
Next to national guarantees Constitution envisaged possibility of the use guarantees of international law. In accordance with article 55 Constitution of Ukraine everybody has a right after the use of all national facilities of legal defense to appeal after the protection of the rights and freedoms to corresponding international judicial establishments or to the corresponding organs of international organizations, by a member or the participant of that is Ukraine.
The feature of Constitution of Ukraine is that she is envisage creation and fixing of effective mechanism of protection of rights and freedoms of man. It touches, mainly, organization and realization of state power on principles of her dividing into legislative, executive and judicial(article 6). Exactly on a department judicial, as marked, the function of protection of constitutional rights and freedoms is laid.
An important link in the mechanism of protection of rights and freedoms of man and citizen is Constitutional Court of Ukraine, that carries out judicial constitutional control and defence of bases of constitutional line-up, basic rights and freedoms of man and citizen, providing of supremacy of right and direct action of Constitution on all territory of Ukraine.
An input of the special institute of the authorized Agent of Supreme soviet of Ukraine on human rights is an innovation in the state-law system of protection of rights and freedoms of man in our country. In Constitution of Ukraine a right for personality to apply for the protection of the rights to the authorized Agent(article 55) is fastened and it is determined that through him parliamentary control comes true after inhibition of constitutional rights and freedoms of man and citizen(article 101).
Status, functions and competense of the authorized Agent of Supreme soviet of Ukraine, on human rights is envisaged in constitutional Law of Ukraine ” On the authorized Agent of Supreme soviet of Ukraine on human rights”, accepted by Supreme soviet of Ukraine on Decembers, 23 1997р . At development of this law positive experience of institute of оmbudsman (Authorized agent on human rights) of Europian countries was taken into account.
The rule of law has impact on each of us, no matter where we live or which social status we have. It is the base for communities of justice, opportunity, and peace—underpinning development, accountable government, and respect for fundamental rights. Research shows that rule of law connected with higher economic growth, greater peace, less inequality, improved conditions for the health and education.
We can clearly see that human rights and the rule of law are tightly connected. Because without rules any rights can be followed, performed and protected. So there are some conclusions about the importance of the rule of law, as the essential part of everyone`s life:
- The empirical evidence to support the assertion that rule of law leads to more rights and wellbeing is limited, and subject to doubts about causality. There is good reason to believe that wealth rather than rule of law is mainly responsible for better rights performance, although rule of law may also have some independent impact.
- The rule of law is more useful in addressing some concerns than others. Appealing to rule of law will do little to resolve the conceptual and normative difficulties at the core of the human rights agenda.
- We should not put too much faith in the ability of rule of law to prevent war, limit atrocities during war, or rein in a superpower bent on going its own way.
- The rule of law is only one component of a just society. In some cases, the values served by rule of law will need to give way to other values. Invoking rule of law in most cases signals the beginning of normative and political debate, not the end of it.
All in all, we have to remember that everything depends on us, because only we are responsible for our actions and behavior. So people should know not only their rights, but also their obligations and appropriate laws which verify their rights and freedoms, it`ll help us to be informed and reasonable citizens of our country.