Essays in honour of Thomas Burgenthal IV

Les Clercs Peuvent-ils se Taire? [May the learned ones remain silent?] is the title of the essay by Alekander Kiss, director of research at the National Center for Scientific Research [France], a professor of the Robert Schuman University of Strasbourg and Vice President of the International Institute of Human Rights.

Kiss' explanation offers us a different perspective on the role to be played with regard to our century's realities, by those who have had the fortune of getting a higher education, who have been prepared for science and research in all their fields. He starts by saying that Thomas Buergenthal is one of those individuals who have been favored with a university and professional background and with a constant learning process in the course of his life, who has known how to assume the responsibility of maintaining a lucid vision of his time, offering his valuables testimonies under a scientific approach to reality.

In his reflections, professor Kiss, starts from the premise that those with a college and university education, distinguished by him as the "learned ones", are called, almost as if it were a vocation, to understand and explain the world, and even the universe, from the point of view of the most diverse disciplines. He adds that they are. accordingly, bound to formulate the most essential questions. Kiss points out that the learned or the thinkers of today are not prophets, but that the role they must play is of the highest importance when facing the existing unbalance between those who make essential decisions in the political or economic area and those who have received a true scientific, university formation and who were too long considered as "individuals lost in the clouds of their theories". This unbalance is evident when one observes that the leaders most frequently lived bound to the past, basing themselves on analysis no longer being in force. The university educated people and the researchers have a greater possibility of getting closer to reality "thanks to their independent spirit afforded to them by the University and by research". In some way, Kiss' ideas are call for this nearing to become a true encounter between man, nature and the future of social events and challenges.

The objective to the reflections is to present a series of issues inciding on our planet's life. These issues are part of the world's unification and diversity under the irresistible impulse of information, The immediate access to information, through all possible communication media, some sort of a collective life experience -the German Erlebnis- has been generated for most of the world.

One of these issues is the role played by the State when fundamental changes occur in international structures. Kiss observes that certain concepts, that were culturally accepted for a long time, are simply just not acceptable any more. He thus talks to us on the fiction of a sovereign State. The concept of a State making use of an exclusive power over its territory and being able to adopt decisions on issues concerning it, totally independent from other equally sovereign States, served through times as a ground for our era's political structures but on a national and international level. Quite rightly, Kiss tells us that the reality at the end of the twentieth century is another one. No single State, by itself, is able to solve the problems it faces. International cooperation is indispensable to fight against epidemics "be they cholera or AIDS"; the environment's serious deterioration problems may not be attacked individually by any State. Without international cooperation it is not possible to undertake an efficient fight against terrible social plagues such as international terrorism and drug traffic. If crime has become an international business, cooperation between States to face this business must be another business just as efficient. In this issue of the fiction of a sovereign State, Kiss concludes that "the important thing is to see the reality behind the fiction of the sovereign State, so frequently placed ahead, in spite of the fact that those invoking it know quite well, by themselves, how limited their power is".

Another reviewed concept is that of the Nation-State. The policy of most governments, since the beginning of the nineteenth century and until the first forty years of the twentieth, was led by the idea that each nation should be organized as a State. Kiss observes that that the principle of the Nation-State, ever since it was established, has undergone great alterations and that one could say that, in practice, it was totally adulterated. Following the idea that the concept first saw light with the French revolution, in 1789, when the principle of the sovereignty of the people was proclaimed, most European States identified themselves as nations, "without this having prevented them from conquering as many colonies as they could -colonies of which the population had nothing to do with the dominating State". As from 1919 and 1920 there appeared as new States some European nations "frequently incorporating people not wanting to be part of such state frames". The consequences of pushing the principle of the Nation-State to its utmost end were frightening with the appearance of the Third Reich. Kiss adds that, after the second world war, with the de-colonizing process, the people being freed from the colonial power wanted to become new Nation-States. This gave place to the appearance of many micro-States and of other States, artificially created from the colonial time's boundaries. In this point we are presented with the question of knowing if it is "realist to hold to the model scarcely corresponding to factual reality in most cases and possibly leading do disastrous results". An he adds: Is it is not more convenient to think over again about the concept -a quite real one- of a nation and to detach it from its political contents, seeking rather the historic and cultural significance? Pope John Paul is quoted as he asked for how long would there be a preference for the States' territorial integrity over the people's integrity.

As an additional consequence of the world's unification, the essay refers to relations among individuals. Everywhere, there is an infinite mixture of civilizations, today it is possible to be informed "in real time" on all that happens in all parts of the world and the transculturation phenomenon is overwhelming. The question is raised of knowing if there is really a threat to the peoples' identity. The author observes, rightfully, that all the great civilizations of history had to submit to the most varied influence and that they, on their turn, were the result of "a mixture of currents of ideas and spiritual conceptions having come from abroad". He cites the examples of France, with the blend of Celts, Romans and Germans; of England with the Saxon and the Norman; and of Spain, with the Latin and Arab.

An important remark with regard to this cultural blending process which is today, as Kiss recalls, much more intense than when the great civilizations of the past were formed, carries along with it frequently a process of individual migratory movements resulting from economic or political facts. This creates intolerance phenomena, all too frequently. The ideas expressed by Kiss on intolerance are a keynote of his thoughts. It is worth summarizing them. He says, for instance: "Intolerance, of which nationalism is the root, ignores the modern world, closes its eyes to the impossibility for the diverse national groups and countries to be closed within themselves…" "…Racial intolerance is grounded on a chimera: there is no such thing as a pure race, hence to assert superiority over others not only is unscientific but also perfectly irrational…" "…Last, as to religious intolerance, one should never fail to underline that all great religions and all the dominant philosophical tendencies proclaim respect for the others and tolerance…"

Warning that he is not attempting to list all the great problems of the contemporaneous world, nor to offer solutions, Kiss does want to point out some and he expresses: the future will be conditioned by a triangle of which the vortices are: human rights, environment and development. This is what Kiss thinks on these issues:

1. Human rights
He observes that, from the point of view of the protection of human rights, the world is divided in two portions: one is formed by countries that, as a whole, respect these rights and the other by countries where one may not even warrant a minimum respect of them. He tells us:

As to democratic countries, respectful as they are of human rights, it is worth recalling that both terms are not synonymous. Democracy may be reduced to formal procedures, subjecting everything to the will expressed by the majority. This majority may be oppressive to the minority: without specific rules protecting them, the rights of the minorities may not be guaranteed. On another hand, even a democratically elected Parliament may enact laws leading to dictatorship: the Nazis of Germany came to power under a formally unobjectionable process. It is thus necessary that human rights be placed on top of the rules ensuring the institutions' democratic play. Normally, this would be a function of national Constitutions, but it seems much safer to place the ultimate guarantees of the respect of human rights on an international level, in international conventions and in the organs created by these for such purpose.

On the same issue, he remarks that the approaches are changing with regard to the implementation, the securing, of human rights. He recalls that, under the writings dealing with the assertion and recognition of human rights, their guarantee is related to interference by public powers. He asks us, however: How may one protect the human rights recognized to each individual against other individuals? He brings about the great discussions on the possibility of opposing the European Human Rights Convention to private individuals -"the famous problem of the ëDrittwirkung' [the action by a third party]. He observes that one should most seriously think about the issue of knowing "to what degree and by which means may the individuals become the debtors of human rights in favor of other individuals, and how could this legal relationship be sanctioned, particularly at the international level".

There is a review of the countries where the enforcement of the respect for human rights is far from being secured -the developing countries, mostly. he advances that the acceleration of the development process surely will tend to improve this situation. Working on this idea, he brings us a summary of the outcome of the Rio de Janeiro World Conference on the Protection of the Environment. This meeting, although it did not pay much attention to the problem of human rights, nevertheless did serve as a gathering of conscience on most certainly human rights problems such as those related to the role of women in development. The improvement in women's condition will certainly contribute to progress in the world's human rights situation.

It is when he reviews the Rio Conference that Kiss justifies even more the title to his essay: "May the learned ones remain silent?". In effect, on the occasion of the Rio conference, as it went on and subsequently, many thoughts have been made on the "scientists' responsibility for the safeguard of the planet." He expresses ideas, also, on the appearance of an international civil society, each day having a greater ability to perform at all world forums reviewing the problems of humanity in search for solutions. This civil society's representatives, the private associations, the non governmental organizations [ONGs] in a great proportion are formed by people having come from universities, from professional sectors, and progress-minded businessmen, by "learned ones who don't remain silent", we could say.

Professor Kiss concludes by expressing some ideas on the problem of development. He tells us that the Rio Conference served as an arrival point for the process of definite fusion between protection of the environment and development and recalls the concept of a "lasting development" as expressed in the Brundtland report. He says a few things, in this part of his essay, of which the expression is not unfitting to someone who is part of the world of rich countries, but rather hard to accept by those who are in the so called World of the South:

Certainly, the development problems known by the Third World -in fact representing three quarters of the world population- are quite different. Their needs for consumer products are far from being satisfied. However, one should face reality and seriously bring questions on the issue of knowing if the planet's resources would be sufficient to ensure for its inhabitants the same proportion of automobiles, telephones -or more simply the same proportion of drinkable water- available in industrialized countries.

Some lines after, however, he clarifies the following:

It is not illegitimate to dream of equality between all humans as to material goods, but the question of knowing whether that is possible without an extremely important leveling towards the bottom in the affluent people's level of life. Is it not required, then, to look for another meaning for development other than a growth, that may be justified for some but must have a different meaning for the other?

As a university graduate, as a person who has being favored with a higher education, I feel that professor Kiss' challenge must be accepted. His analysis of the growth/development binomial function call the "learned ones" to join in the effort to find equilibrium points.

Julianne Kokott, Professor of International Law at Heidelberg University's School of Law, contributes to the book with the essay Menschenrechtsschutz im Rahmen der Rechtsordnung der Europäischen Gemeinschaften [The protection of human rights within the frame of the European Communities' legal system].

I.- INTRODUCTION
As an introduction, the author refers to Thomas Buergenthal's work as a young assistant professor, in following up the decisions of Court of the European Communities, as referred in his notes in the American Journal of International Law. She cites the review of the Van Gend & Loos case made for the journal by Buergenthal: in this case, the European Communities' Court had decided that an individual could directly invoke before domestic tribunals the provisions of the [European] Constituent Agreements. Thomas Buergenthal's first publications in the American Journal leave a thematic vision of what would later be the work of his life, so essentially printed by effort and creativity as to the rights of the individual.

II.- THE FUNDAMENTAL RIGHTS AND THE RIGHTS ASSIMILATED TO FUNDAMENTAL RIGHTS IN THE FACE OF THE EUROPEAN COMMUNITY'S CONSTITUENT AGREEMENT
It is explained that the Community's Constituent Agreements, as opposed to most of the national constitutions do not have a list of fundamental rights, but that they do contain rights than can be assimilated to fundamental rights and that may be enforced at the national courts. The prohibition of discrimination and the basic freedoms belong to this class of rights. Article 6 of the European Community's Constituent Agreement prohibits any discrimination based on nationality within the Agreement's sphere of application. Article 119 thereof provides for similar remuneration for men and women. The freedom of domicile fundamentally entails the admission and exercise of independent industries, as well as the establishment and direction of businesses, particularly companies under the receiving State's regulations applicable to its own citizens. Freedom of Service completes the work applicant's freedom of circulation as well as the freedom of domicile, considering services, particularly, the following: a) industrial activities, b) trade activities; c) handicraft activities, d) free profession activities. This is how the Court of the European Communities has determined that pregnancy interruption services are within the spirit of the European Community's Constituent Agreement. The case of the steadfast Irish prohibition of abortion extending also to the spreading of information about abortions in other member States, has often occupied the Court of the European Communities and the organs of the European Convention on Human Rights and shows once more the interdependence of both protection systems. There is also a review in this section of the essay of the situation of medical and legal services: medical doctors may abide to the freedom of service when traveling to other community countries to treat patients are authorized to do so, provided they meet certain requirements; lawyers may also make use of the freedom of service.

We are also told that basic freedoms in the European Community's Agreement that may be assimilated to fundamental rights, within the Community have the force of directly applicable law and an individual may make use thereof against the State of which he is a citizen. The individual States' tribunals not being able to decide by means of domestic law recourses may, on certain occasions, appeal to the Court of the European Communities.

There is an important quote of a statement by the Advocate General to the Court of the European Communities, Carl Otto Lenz, who says that the basic freedoms and the prohibition of discrimination may be deemed as "the Community's original fundamental rights".

III.- THE LINKING OF THE COMMUNITY TO HUMAN RIGHTS AS DEVELOPED BY THE EUROPEAN COURT

1. Fundamentals
Professor Kokott tells us that although a supranational organization without effective guarantees of fundamental rights is not compatible with the tradition of the Member States' Constitutions, the Court of the European Communities has developed guarantee provisions that go beyond fundamental rights, as general principles of law. The subsequent development of fundamental rights through the Court of the European Communities' precedents was an essential premise for the growing integration of the Community. There is an observation on how the rule of Law prevails over the principles of proportionality, of protection of confidentiality, of the administration's legitimacy, of legal security, of the protection of good faith, the principles of being legally heard, of nec bis in idem, the general principle of equal treatment, the principle of revision, the right to have access to the record, the principle of the confidentiality of legal advise, etc.

2. The development of the fundamental right's dogmatism by the Court of the European Communities
There is a review of the case of Stauder v. the city of Ulm. In it, the Court recognizes that Community law encompasses fundamental rights that it must protect. In the Nold case, the Court shows for the first time that next to the member States' set of constitutional traditions, one must take into account also the international Agreements, in the settlement of which the member States were interested, or to which they contributed. There is an indication of the protection of human rights by the international agreements. In the case of Hauer v, Rheinland-Pfalz, the Court established the protection of the right of ownership by the set of the member States' constitutional traditions, in compliance with the European Convention on Human Rights.

It is observed that the fundamental rights are thus applicable as legal principles, within the frame of Community law.

3. The individual's basic rights as developed by the Court of the European Communities
There is in this section an account of the diverse basic rights being recognized by the Court in its precedents: respect of the private sphere, of family life, protection of medical secret, inviolability of the home, the principle of equality and prohibition of discrimination, freedom of religion, freedom of association, freedom of profession, protection of property, free access to employment, free economic participation, freedom of opinion and of publication, prohibition of retroactivity, the requirement of judicial protection of rights and of due process, prohibition of retroactivity of criminal norms.

4. Direct application of the E.H.R.C. or the Communities' adherence to the E.H.R.C.
It is made clear that under article 66 of the European Convention on Human Rights that it remains open for its signature by the members of the Council of Europe. However, under the Statute's article 4, only those States respecting the basic principle of the rule of Law , human rights and basic freedoms may be members of the European Council.

There is a remark on the strong aspirations towards and adherence to the E.C.H.R. by the Communities; in recent years one may say the same thing with regard to the European Council: it is preparing the possible adherence to the European Union of the new Eastern Europe democracies. It is observed also that the Union Agreement's binding effect has made it clear once more that European integration is not limited to the demands of economic progress. The Council of Europe underlines, that also, and above all, a new space will have to be created in order that a political, economic, social and cultural vision may be developed, under the domain of freedom and the individual.

There are comments on the fact that, after and adherence of the Communities to the E.C.H.R., the Court of the European Communities, linked to the Strasbourg organs, could reach a position being similar to that of the Member States' highest courts. Through the adherence, the Court of the European Communities would be subordinated to human rights. It is added that such change of competencies of a main organ of the Communities could call for an amendment to the Convention, under article N of the European Union's Agreement.

IV.- The construction of the fundamental right by the European Parliament, Council and Commission

Use is made of the need to cite the set of the constructions of the law made by the European Parliament, Council and Commission. It is observed that the Community organs recognize the fundamental rights as the constitutional traditions of the member States' set of general legal systems. It is noted also that the Court of the European Communities has cited the interpretation of the set of fundamental rights as an assertion of the protection of the fundamental rights already existing in the Community.

V.- The Individual States' Fundamental Rights and the Community's Fundamental Rights

Professor Kokott observes that the fundamental rights within the sphere of the European Communities is a condition precedent to the advance of the integration process. This is so much so, that the member States, partially, have a highly developed system of protection to fundamental rights in their constitutions. It is added, however, that in the field of the member States, these may not govern in the void as enacted provisions, since the authority of sovereignty in essential zones is no longer determined on national basis but on a supranational one, hence more and more competencies will be transferred to the Union.

VI.- Concluding Thoughts

Professor Kokott concludes by saying that the law of the Community avails developed and effective protection of fundamental rights. The scope of an effective protection of these rights within the frame of the Communities grows as integration does. An intensive joint work with the Council of Europe and it human rights protection organs should prepare also the leading of Eastern European countries to their entry to the European Union. The adherence of the European Communities to the European Convention on Human Rights should also result into the availability of a binding European construction of human rights.

She closes by saying: "All this shows that the effective protection of the individual, through the Communities and through the member States, against violations of human rights is a central aspiration of the Community".