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    Avrupa – Çin İnsan Hakları Enstitüsü Merkez olarak İstanbul Kültür Üniversitesi Ceza Hukuku

    Avrupa – Çin İnsan Hakları Enstitüsü, merkez olarak İstanbul Kültür Üniversitesi Ceza Hukuku Uygulama ve Araştırma Merkezi”ni seçti

    Draft for the establishment of a Chinese-European Human Rights Institute


    Elisabeth Steiner, Bahri Öztürk und Hans-Heiner Kühne
    I Human Rights, their historical development and their concept
    1 Introduction
    Human Rights have formally been widely recognized since the end of WW II. The UN Convention on Human Rights, the International Covenant on Civil and Political Rights, the EU Human Rights Charta, the Human Rights Charta of the American States, to name just some of the most important texts, not to speak of the manifold protocols and conventions which are targeting specific Human Rights issues as torture, protection of minorities or gender equality or war crimes.
    The implementation of all of these rights in general has globally improved although there are still many deficiencies. Even within the member states of the European Council where 47 states have subscribed to the ECHR by signing and ratifying it, annually a huge number of violations are being alleged - and many of them recognized and criticised by the ECourtHR.
    In countries where such a stringent legal supervision does not exist, the extent of Human Rights violations must be even higher. Unnecessary to mention that in the context of fighting international terrorism, the protection of Human Rights mostly is no longer a primary concern.
    Moreover, there seems to be a controversy between the west and the east, especially China, regarding the existence, the substance and the extent of necessary protection of Human Rights.
    In this context the assumption has to be tested whether the differences of philosophy and cultural traditions between - to put it shortly- the West and the East is hampering a common understanding.
    2 The historical development of Human Rights: a “western” approach as basis for a global phenomenon
    When tribal groups started to grow, the need of rules to guarantee a peaceful co-existence became evident. Basic moral concepts, mostly from  religious sources, were transferred into ordinances and laws to protect daily life positions of the members, to care for their safety. Societies grew bigger and the extent of necessary regulations was growing accordingly. Governments came into existence to specialize in the care of these structures for the society. Yet, the accumulation of power which came along with governments, gradually changed the focus of the legal interest. The interests of those in power prevailed and laws degenerated into rules to protect their position. These were the times of feudal governments. Their self-committed concern became evident just by their own denomination. They called themselves absolute sovereigns, which explicitly meant that the reigning representatives of the state were absolved from the authority of the law (de legibus absolutus). Law had become an instrument to control the underlings, the citizens and to keep up the privileges of the reigning few. To cover up this dominating self-interest, the security of the state became the important catch-word for justification and basis for a still existing ideology: For the sake of each and everybody’s security the individual citizen has to endure restrictions of his/her individual rights. Defining the security of the state by the well being of the reigning few, this concept was pretty successful and found philosophical support (Macchiavelli, Hobbes).
    Only the philosophy of Enlightenment was opposed to this concept and tried to exonerate the citizen from the reign of an oppressive, self-centred state. These ideas have caused in continental Europe of the 18th century and English colonies in North America (on the British islands as early as the mid-17th century) a revolutionary development which put the state back to the position of a servant to its citizens.
    Most important for this development was the concept of Human Rights. These special rights have been put beyond the legislative power of any state. Although this idea in a certain way was contradictory to the newly discovered democratic sovereignty of the people, yet, it helped to prevent any future abuse from the side of a state, thus drawing definite limits to the power of any institution of a state.
    The origin of these Human Rights can be found in the Judaic-Christian tradition of Europe. The corner stone of the concept of each Human being created by God in His resemblance was the ancient Greek philosophy from the 5th century BC on, taken up by Judaic and Christian .philosophers and believers. The individual’s equality with God together with the gift of free decision-making has made even the weakest or the worst individual a being endowed with unalienable basic rights. In consequence, each and any individual had to have his/her place not only in society but as well within the power structures of the state. This implies a pre-eminence of the individual relative to the state.
    These concepts only came back to a general public awareness during the times of the philosophy of Enlightenment and gained political power for a while in the 18th and early 19th century. After this period of time Human Rights were buried under the manifold European Wars and the two World Wars. 
    Only after the appalling experiences of WW II the World seemed to be ready to reconsider the concept of Human Rights. Especially the UN Universal Declaration of Human Rights and the European Convention of Human Rights were agreed upon to make the protection of Human Rights a global concern. This was, indeed, a decisive step forward. Yet, the issue of state security – together with the catchwords of first general criminality, then organized criminality followed by economic criminality and lately terrorism – has started to reduce  the power of Human Rights arguments.
    This taken apart, we have to state three more facts. First of all, the concept of Human Rights, although agreed upon by all UN Member States, is a product of European philosophy, religion and tradition. Secondly, the Islamic traditions, as developed in Turkey from the 12th century on, as well as all “Eastern” philosophies, religions and traditions have not been explicitly considered so far. Thirdly, the Asian States seem to have more difficulties to accept and implement Human Rights than states based on European traditions.
    There might be a relation between these facts, which can be described in a nutshell as : the cultural and philosophical differences of “East and West”.
    3 The Eastern approach and its philosophical/religious traditions
    Putting aside the Judaic-Christian understanding of a Human, from the Eastern perspective Buddhism, Taoism and Confucianism have to be considered to come to a valid description of the nature of man. It would be definitely wrong, indeed, to think that only European history has developed important concepts of the nature of a Human Being. The Nobel Price Winner Amartya Senn, for example, has pointed out that early Indian and Chinese history, long before this became a topic in Europe, has developed concepts of Human Rights . If we look into Chinese Mythology, we do find a number of parallels to seemingly western paradigms, when, for example, the Goddess Niwa has formed man from clay according to her picture and established the institution of marriage. 
    Yet, there are differences. Whereas the Judaic-Christian concept has underlined the individuality even against the interests of the group/state, eastern philosophies prefer to emphasize a value system in which the group has priority against the individual. Group harmony seems to be the central turning point of such ethics. Hence, Human Rights are not that much of a defensive nature against the group/state as they are under western perspective. Accordingly the Foreign Minister of the PRC at the occasion of the UN Human Rights Conference in Vienna (1993) pointed out that “Asian priorities” ask for the individual to subordinate his/her interests to those of the state . Similar sounding, at the same occasion the Foreign Minister of Singapore drew the attention to the fact that the universal acceptance of Human Rights may be detrimental if used to mystify the reality of existing disparities .
    In the light of these differences of common understanding, even the concept of democracy and democratic representation may lead to non converging results. The PRC, just like the revolutionary French State at the end of the 18th century, defines itself as embodiment of the people’s will. This makes the state a natural protector of its people and their rights, whereas the imagination of protection against the state is far-out. We have to note that for just this reason the French revolutionary constitution of 1791/1793 did not contain the guaranty of an independent judiciary! Yet, we know from long standing unhappy experiences that notwithstanding the democratic legitimation of a state, the judiciary is a highly important institution to limit the power of any executive in favour of citizens’ rights.
    4 Conclusions
    From all this follows:
    1 The concept of Human Rights as defined in International and European Conventions is formed according to “western” traditions of Judaic-Christian origin.
    2 Islamic traditions  can make contributions to this concept as well to complete the European” perspective.
    3 There do exist “eastern” philosophies and traditions regarding Human Rights.
    4 In comparison these sources at least partially are differing from each other.
    5 The global discussion of Human Rights cannot ignore these differences and is called on to integrate these “Eastern” perspectives as well. This will enhance the recognition and implementation of Human Rights world wide. The PRC as one of the most important occidental states, encompassing valuable cultural traditions for millenniums, is an utmost important partner to take a leading role in such a discussion.
    II The Institute
    1 The task
    The task of the “Chinese-European Human Rights Institute” will be to start and conduct this bilateral discussion . Three core areas will be mainly focused on:
     - the various philosophical, religious and political ideas forming the background of the concept of Human Rights with special regard to Judaic-Christian, Islamic and Buddhist as well as Confucian traditions.
     - the substance, and legal validity (national and international) of existing Human Rights’ codes
     - the judicial practice of granting Human Rights to citizens.
    The three Chairpersons of the Institute (see below No 2) will 
     - give presentations and complete lectures in the PRC
     - invite Chinese colleagues from Universities and from the Judiciary to lecture at the Institute
     - conduct joint seminars in the PRC and in Europe
     - initiate and monitor research work, dissertations and others to enlighten specific problem areas.
    The results of these discussions and the research conducted accordingly will not only lead to a broader understanding of what Human Rights in a global perspective do mean, but they will improve as well the communication in this field between western and eastern societies, states and institutions.
    2 The persons
    The Institute will be jointly directed by Judge of the ECourtHR Prof. Dr. Dr. Elisabeth Steiner (Strasbourg/Vienna), Prof. Dr. Bahri Öztürk (Dean of the Law Faculty of Kültür University and Director of CEHAMER) and Prof Dr. Dr. h.c. mult. Hans- Heiner Kühne (University of Trier, Law Faculty). All three of these persons have a long standing experience in Human Rights from a practical as well as from a scientific point of view.
    All of them have well developed relations with Chinese academic and judicial institutions and are accordingly perfectly versed in this special east-western dialogue. 
    Turkey has been selected as the place of the Institute as this country, so to say, is an intersection of western and eastern traditions. Being the cradle of the European culture from the 3rd Millennium BC on, living under christian ideas during the late Roman Empire, the Seljukian kings in the 12th century and the Osmanic Empire from the 13th century on formed Islamic traditions and value systems.
    3 The Institute
    The Institute will be based jointly at the CEHAMER of Kültür University in Istanbul. It will co-opt the Human Rights Institute (in the course of formation) of the Beijing State University/Pinyin Beida as a standing partner.
    4 Equipment and costs
    In the first two years there will be two assistants and two secretaries to assist the work of the Institute. The yearly expenses roughly will be
    for an assistant: 50.000,00 €
    for a secretary: 30.000,00 €
    Remuneration of the two directors, each per annum: ………..
    In Trier there will no costs incur for renting rooms at the University.
    In Vienna the Institute will need three rooms as a local basis. Related costs will be per  annum
    around 14.000,00 €.
    Telecommunication and office requirements in Vienna per annum 5.000,00 €
                     in Trier   per annum  5.000,00 €
    Travel expenses for the two directors per annum: 30.000,00 €
    Travel and accommodation for invited guests per annum: 15.000,00 €
    Office equipment (non recurring):
    in Vienna full equipment: furniture and technical equipment:  40.000,00 €
    in Trier just technical equipment: 10.000,00 €
    Hence, for the first year, there will incur costs of: ……….
    In the following 4 Years costs will be per annum ………
    Total costs for the period of 5 Years: …………………



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