Human rights
From Wikipedia, the free encyclopedia
Human rights refers to the "basic rights and freedoms to which all humans are entitled."[1] Examples of rights and freedoms which are often thought of as human rights include civil and political rights, such as the right to life and liberty, freedom of expression, and equality before the law; and social, cultural and economic rights, including the right to participate in culture, the right to food, the right to work, and the right to education.
The Magna Carta or "Great Charter" was one of England's first documents containing commitments by a sovereign to his people to respect certain legal rights.“ All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood.
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History of human rights
The history of human rights covers thousands of years and draws upon religious, cultural, philosophical and legal developments throughout recorded history. Several ancient documents and later religions and philosophies included a variety of concepts that may be considered to be human rights. Notable among such documents are the Cyrus cylinder of 539 BC, a declaration of intentions by the Persian emperor Cyrus the Great after his conquest of the Neo-Babylonian Empire; the Edicts of Ashoka issued by Ashoka the Great of India between 272-231 BC; and the Constitution of Medina of 622 AD, drafted by Muhammad to mark a formal agreement between all of the significant tribes and families of Yathrib (later known as Medina), including Muslims, Jews and Pagans.[3][4] The English Magna Carta of 1215 is particularly significant in the history of English law, and is hence significant in international law and constitutional law today.
Much of modern human rights law and the basis of most modern interpretations of human rights can be traced back to relatively recent history. The British Bill of Rights (or “An Act Declaring the Rights and Liberties of the Subject and Settling the Succession of the Crown”) of 1689 made illegal a range of oppressive governmental actions in the United Kingdom. Two major revolutions occurred during the 18th century, in the United States (1776) and in France (1789), leading to the adoption of the United States Declaration of Independence and the French Declaration of the Rights of Man and of the Citizen respectively, both of which established certain rights. Additionally, the Virginia Declaration of Rights of 1776 set up a number of fundamental rights and freedoms.
These were followed by developments in philosophy of human rights by philosophers such as Thomas Paine, John Stuart Mill and Hegel during the 18th and 19th centuries. The term human rights probably came into use sometime between Paine's The Rights of Man and William Lloyd Garrison's 1831 writings in The Liberator saying he was trying to enlist his readers in "the great cause of human rights"[5]
Many groups and movements have managed to achieve profound social changes over the course of the 20th century in the name of human rights. In Western Europe and North America, labour unions brought about laws granting workers the right to strike, establishing minimum work conditions and forbidding or regulating child labour. The women's rights movement succeeded in gaining for many women the right to vote. National liberation movements in many countries succeeded in driving out colonial powers. One of the most influential was Mahatma Gandhi's movement to free his native India from British rule. Movements by long-oppressed racial and religious minorities succeeded in many parts of the world, among them the civil rights movement, and more recent diverse identity politics movements, on behalf of women and minorities in the United States.
The establishment of the International Committee of the Red Cross, the 1864 Lieber Code and the first of the Geneva Conventions in 1864 laid the foundations of International humanitarian law, to be further developed following the two World Wars.
The World Wars, and the huge losses of life and gross abuses of human rights that took place during them were a driving force behind the development of modern human rights instruments. The League of Nations was established in 1919 at the negotiations over the Treaty of Versailles following the end of World War I. The League's goals included disarmament, preventing war through collective security, settling disputes between countries through negotiation, diplomacy and improving global welfare. Enshrined in its Charter was a mandate to promote many of the rights which were later included in the Universal Declaration of Human Rights.
At the 1945 Yalta Conference, the Allied Powers agreed to create a new body to supplant the League's role. This body was to be the United Nations. The United Nations has played an important role in international human rights law since its creation. Following the World Wars the United Nations and its members developed much of the discourse and the bodies of law which now make up international humanitarian law and international human rights law.
International human rights norms
Humanitarian Law
The Geneva Conventions came into being between 1864 and 1949 as a result of efforts by Henry Dunant, the founder of the International Committee of the Red Cross. The conventions safeguard the human rights of individuals involved in armed conflict, and build on the 1899 and 1907 Hague Conventions, the international community's first attempt to formalize the laws of war and war crimes in the nascent body of secular international law. The conventions were revised as a result of World War II and readopted by the international community in 1949.
The Geneva Conventions define what is today referred to as humanitarian law. The International Committee of the Red Cross is the controlling body of the Geneva conventions.
Universal Declaration of Human Rights
The Universal Declaration of Human Rights (UDHR) is a non-binding declaration adopted by the United Nations General Assembly[7] in 1948, partly in response to the atrocities of World War II. Although the UDHR is a non-binding resolution, it is now considered to be a central component of international customary law which may be invoked under appropriate circumstances by national and other judiciaries.[8] The UDHR urges member nations to promote a number of human, civil, economic and social rights, asserting these rights are part of the "foundation of freedom, justice and peace in the world." The declaration was the first international legal effort to limit the behavior of states and press upon them duties to their citizens following the model of the rights-duty duality.
“ ...recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world ”
—Preamble to the Universal Declaration of Human Rights, 1948
The UDHR was framed by members of the Human Rights Commission, with former First Lady Eleanor Roosevelt as Chair, who began to discuss an International Bill of Rights in 1947. The members of the Commission did not immediately agree on the form of such a bill of rights, and whether, or how, it should be enforced. The Commission proceeded to frame the UDHR and accompanying treaties, but the UDHR quickly became the priority.[9] Canadian law professor John Humprey and French lawyer René Cassin were responsible for much of the cross-national research and the structure of the document respectively, where the articles of the declaration were interpretative of the general principle of the preamble. The document was structured by Cassin to include the basic principles of dignity, liberty, equality and brotherhood in the first two articles, followed successively by rights pertaining to individuals; rights of individuals in relation to each other and to groups; spiritual, public and political rights; and economic, social and cultural rights. The final three articles place, according to Cassin, rights in the context of limits, duties and the social and political order in which they are to be realized.[9] Humphrey and Cassin intended the rights in the UDHR to be legally enforceable through some means, as is reflected in the third clause of the preamble:[9]
“ Whereas it is essential, if man is not to be compelled to have recourse, as a last resort, to rebellion against tyranny and oppression, that human rights should be protected by the rule of law. ”
—Preamble to the Universal Declaration of Human Rights, 1948
Some of the UDHR was researched and written by a committee of international experts on human rights, including representatives from all continents and all major religions, and drawing on consultation with leaders such as Mahatma Gandhi.[10] The inclusion of both civil and political rights and economic, social and cultural rights[9][11] was predicated on the assumption that basic human rights are indivisible and that the different types of rights listed are inextricably linked. This principle was not then opposed by any member states (the declaration was adopted unanimously, with the abstention of the Eastern Bloc, Apartheid South Africa and Saudi Arabia), however this principle was later subject to significant challenges.[11]
The Universal Declaration was bifurcated into two distinct and different covenants, a Covenants on Civil and Political Rights and another Covenant on Economic, Social and Cultural Rights. Over the objection of the more developed states [Capitalist], which questioned the relevance and propriety of such provisions in covenants on human rights, both begin with the right of people to self-determinaiton and to sovereignty over their natural resources. Then the two covenants go different ways (see, Louis Henkin, The International Bill of Rights: The Universal Declaration and the Covenants, in International Enforcement of Human Rights 6-9, Bernhardt and Jolowicz, eds, (1987))
The drafters of the Covenants initially intended only one instrument. The original drafts included only political and civil rights, but economic and social rights were added early. Western States then fought for, and obtained, a division into two covenants. They insisted that economic and social right were essentially aspirations or plans, not rights, since their realization depended on availability of resources and on controversial economic theory and ideology. These, they said, were not appropriate subjects for binding obligations and should not be allowed to dilute the legal character of provisions honoring political-civil rights; states prepared to assume obligations to respect political-civil rights should not be mitments. There was wide agreement and clear recognition that the means required to enforce or induce compliance with socio-economic undertakings were different from the means required for civil-political rights. See Louis Henkin, Introduction, The International Bill of Rights 9-10 (1981).
Because of the divisions over which rights to include, and because some states declined to ratify any treaties including certain specific interpretations of human rights, and despite the Soviet bloc and a number of developing countries arguing strongly for the inclusion of all rights in a so-called Unity Resolution, the rights enshrined in the UDHR were split into two separate covenants, allowing states to adopt some rights and derogate others.[citation needed] Though this allowed the covenants to be created, one commentator has written that it denied the proposed principle that all rights are linked which was central to some interpretations of the UDHR.[12][13]
Human Rights Law
Human rights law is a system of laws, both domestic and international, designed to promote human rights.
Human Rights Treaties
Main article: Human rights law
In 1966, the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR) were adopted by the United Nations, between them making the rights contained in the UDHR binding on all states that have signed this treaty, creating human rights law.
Since then numerous other treaties (pieces of legislation) have been offered at the international level. They are generally know as human rights instruments. Some of the most significant are:
Convention on the Elimination of All Forms of Racial Discrimination (CERD) (adopted 1966, entry into force: 1969) [2]
Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) (entry into force: 1981) [3]
United Nations Convention Against Torture (CAT) (adopted 1984, entry into force: 1984) [4]
Convention on the Rights of the Child (CRC) (adopted 1989, entry into force: 1989) [5]
International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families (ICRMW) (adopted 1990)
Enforcement of human rights law
Main article: Human rights law
The enforcement of international human rights law is the responsibility of the Nation State, and its the primary responsibility of the State to make human rights a reality. There is currnetly no international court that upholds human rights law (the International Criminal Court deals with crimes against humanity, war crimes and genocide), although the European Union has established the European Court of Human Rights which enforces European human rights law on a regional basis.
In practice, many human rights are very difficult to legally enforce due to the absence of consensus on the application of certain rights, the lack of relevant national legislation or of bodies empowered to take legal action to enforce them.
Universal Jurisdiction
Main article: Human rights law
Universal jurisdiction is a controversial principle in international law whereby states claim criminal jurisdiction over persons whose alleged crimes were committed outside the boundaries of the prosecuting state, regardless of nationality, country of residence, or any other relation with the prosecuting country. The state backs its claim on the grounds that the crime committed is considered a crime against all, which any state is authorized to punish. The concept of universal jurisdiction is therefore closely linked to the idea that certain international norms are erga omnes, or owed to the entire world community, as well as the concept of jus cogens.[14]
International bodies
The United Nations
The United Nations (UN) is the only multilateral governmental agency with universally accepted international jurisdiction for universal human rights legislation.[15] All UN gave England them but England already have advisory roles to the United Nations Security Council and the United Nations Human Rights Council, and there are numerous committees within the UN with responsibilities for safeguarding different human rights treaties. The most senior body of the UN with regard to human rights is the Office of the High Commissioner for Human Rights. The United Nations has an international mandate to:
“ ...achieve international co-operation in solving international problems of an economic, social, cultural, or humanitarian character, and in promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, ***, language, or religion. ”
—Article 1-3 of the United Nations Charter
Human Rights Council
The United Nations Human Rights Council, created at the 2005 World Summit to replace the United Nations Commission on Human Rights, has a mandate to investigate violations of human rights.[16] The Human Rights Council is a subsidiary body of the General Assembly[17] and reports directly to it. It ranks below the Security Council, which is the final authority for the interpretation of the United Nations Charter.[18] Forty-seven of the one hundred ninety-one member states sit on the council, elected by simple majority in a secret ballot of the United Nations General Assembly. Members serve a maximum of six years and may have their membership suspended for gross human rights abuses. The Council is ****d in Geneva, and meets three times a year; with additional meetings to respond to urgent situations.[19]
Independent experts (rapporteurs) are retained by the Council to investigate alleged human rights abuses and to provide the Council with reports.
The Human Rights Council may request that the Security Council take action when human rights violations occur. This action may be direct actions, may involve sanctions, and the Security Council may also refer cases to the International Criminal Court (ICC) even if the issue being referred is outside the normal jurisdiction of the ICC.[20]
Security Council
The United Nations Security Council has the primary responsibility for maintaining international peace and security and is the only body of the UN that can authorize the use of force (including in the context of peace-keeping operations), or override member nations sovereignty by issuing binding Security Council resolutions. Created by the UN Charter, it is classed as a Charter Body of the United Nations. The UN Charter gives the Security Council the power to:
Investigate any situation threatening international peace;
Recommend procedures for peaceful resolution of a dispute;
Call upon other member nations to completely or partially interrupt economic relations as well as sea, air, postal, and radio communications, or to sever diplomatic relations; and
Enforce its decisions militarily, if necessary.
The Security Council hears reports from all organs of the United Nations, and can take action over any issue which it feels threatens peace and security, including human rights issues. It has at times been criticised for failing to take action to prevent human rights abuses, including the Darfur crisis, the Srebrenica massacre and the Rwandan Genocide.[citation needed]
The Rome Statute of the International Criminal Court recognizes the Security Council the power to refer cases to the Court, where the Court could not otherwise exercise jurisdiction.
Other UN Treaty Bodies
A modern interpretation of the original Declaration of Human Rights was made in the Vienna Declaration and Programme of Action adopted by the World Conference on Human Rights in 1993. The degree of unanimity over these conventions, in terms of how many and which countries have ratified them varies, as does the degree to which they are respected by various states. The UN has set up a number of treaty-****d bodies to monitor and study human rights, under the leadership of the UN High Commissioner for Human Rights (UNHCHR). The bodies are committees of independent experts that monitor implementation of the core international human rights treaties. They are created by the treaty that they monitor.
The Human Rights Committee promotes participation with the standards of the ICCPR. The eighteen members of the committee express opinions on member countries and make judgements on individual complaints against countries which have ratified the treaty. The judgements are not legally binding.
The Committee on Economic, Cultural and Social Rights monitors the ICESCR and makes general comments on ratifying countries performance. It does not have the power to receive complaints.
The Committee on the Elimination of Racial Discrimination monitors the CERD and conducts regular reviews of countries' performance. It can make judgements on complaints, but these are not legally binding. It issues warnings to attempt to prevent serious contraventions of the convention.
The Committee on the Elimination of Discrimination against Women monitors the CEDAW. It receives states' reports on their performance and comments on them, and can make judgements on complaints against countries which have opted into the 1999 Optional Protocol.
The Committee Against Torture monitors the CAT and receives states' reports on their performance every four years and comments on them. It may visit and inspect individual countries with their consent.
The Committee on the Rights of the Child monitors the CRC and makes comments on reports submitted by states every five years. It does not have the power to receive complaints.
The Committee on Migrant Workers was established in 2004 and monitors the ICRMW and makes comments on reports submitted by states every five years. It will have the power to receive complaints of specific violations only once ten member states allow it.
Each treaty body receives secretariat support from the Treaties and Commission Branch of Office of the High Commissioner on Human Rights (OHCHR) in Geneva except CEDAW, which is supported by the Division for the Advancement of Women (DAW). CEDAW meets at United Nations headquarters in New York; the other treaty bodies generally meet at the United Nations Office in Geneva. The Human Rights Committee usually holds its March session in New York City.
Regional human rights
The three principal regional human rights instruments are the African Charter on Human and Peoples' Rights, the American Convention on Human Rights (the Americas) and the European Convention on Human Rights.
See also: List of human rights articles by country and National human rights institutions
Africa
The African Union (AU) is a supranational union consisting of fifty-three African states.[21] Established in 2001, the AU's purpose is to help secure Africa's democracy, human rights, and a sustainable economy, especially by bringing an end to intra-African conflict and creating an effective common market.[22]
The African Charter on Human and Peoples' Rights is the regions principal human rights instrument and emerged under the aegis of the Organisation of African Unity (OAU) (since replaced by the African Union). The intention to draw up the African Charter on Human and Peoples' Rights was announced in 1979 and the Charter was unanimously approved at the OAU's 1981 Assembly. Pursuant to its Article 63 (whereby it was to "come into force three months after the reception by the Secretary General of the instruments of ratification or adherence of a simple majority" of the OAU's member states), the African Charter on Human and Peoples' Rights came into effect on 21 October 1986 – in honour of which 21 October was declared "African Human Rights Day".[23]
The African Commission on Human and Peoples' Rights (ACHPR) is a quasi-judicial organ of the African Union tasked with promoting and protecting human rights and collective (peoples') rights throughout the African continent as well as interpreting the African Charter on Human and Peoples' Rights and considering individual complaints of violations of the Charter. The Commission has three broad areas of responsibility:[24]
Promoting human and peoples' rights
Protecting human and peoples' rights
Interpreting the African Charter on Human and Peoples' Rights
In pursuit of these goals, the Commission is mandated to "collect documents, undertake studies and researches on African problems in the field of human and peoples, rights, organise seminars, symposia and conferences, disseminate information, encourage national and local institutions concerned with human and peoples' rights and, should the case arise, give its views or make recommendations to governments" (Charter, Art. 45).[24]
With the creation of the African Court on Human and Peoples' Rights (under a protocol to the Charter which was adopted in 1998 and entered into force in January 2004), the Commission will have the additional task of preparing cases for submission to the Court's jurisdiction.[25] In a July 2004 decision, the AU Assembly resolved that the future Court on Human and Peoples' Rights would be integrated with the African Court of Justice.
The Court of Justice of the African Union is intended to be the “principal judicial organ of the Union” (Protocol of the Court of Justice of the African Union, Article 2.2).[26] Although it has not yet been established, it is intended to take over the duties of the African Commission on Human and Peoples' Rights, as well as act as the supreme court of the African Union, interpreting all necessary laws and treaties. The Protocol establishing the African Court on Human and Peoples' Rights entered into force in January 2004[27] but its merging with the Court of Justice has delayed its establishment. The Protocol establishing the Court of Justice will come into force when ratified by 15 countries.[28]
There are many countries in Africa accused of human rights violations by the international community and NGOs.[29]
Americas
The Organization of American States (OAS) is an international organization, headquartered in Washington, D.C., United States. Its members are the thirty-five independent states of the Americas. Over the course of the 1990s, with the end of the Cold War, the return to democracy in Latin America[citation needed], and the thrust toward globalization, the OAS made major efforts to reinvent itself to fit the new context. Its stated priorities now include the following:[30]
Strengthening democracy
Working for peace
Protecting human rights
Combating corruption
The rights of Indigenous Peoples
Promoting sustainable development
The Inter-American Commission on Human Rights (the IACHR) is an autonomous organ of the Organization of American States, also ****d in Washington, D.C. Along with the Inter-American Court of Human Rights, ****d in San José, Costa Rica, it is one of the bodies that comprise the inter-American system for the promotion and protection of human rights.[31] The IACHR is a permanent body which meets in regular and special sessions several times a year to examine allegations of human rights violations in the hemisphere. Its human rights duties stem from three documents:[32]
the OAS Charter
the American Declaration of the Rights and Duties of Man
the American Convention on Human Rights
The Inter-Americal Court of Human Rights was established in 1979 with the purpose of enforcing and interpreting the provisions of the American Convention on Human Rights. Its two main functions are thus adjudicatory and advisory. Under the former, it hears and rules on the specific cases of human rights violations referred to it. Under the latter, it issues opinions on matters of legal interpretation brought to its attention by other OAS bodies or member states.[33]
Many countries in the Americas, such as the United States, Colombia, Cuba, and Venezuela, have been accused of human rights violations
Asia
There are no Asia-wide organisations or conventions to promote or protect human rights. Countries vary widely in their approach to human rights and their record of human rights protection.
The Association of Southeast Asian Nations (ASEAN)[34] is a geo-political and economic organization of 10 countries located in Southeast Asia, which was formed in 1967 by Indonesia, Malaysia, the Philippines, Singapore and Thailand.[35] The organisation now also includes Brunei, Vietnam, Laos, Myanmar and Cambodia.[34] Its aims include the acceleration of economic growth, social progress, cultural development among its members, and the promotion of regional peace[34]
The South Asian Association for Regional Cooperation (SAARC) is an economic and political organization of eight countries in Southern Asia, representing almost 1.5 billion people. It was established in 1985 by India, Pakistan, Bangladesh, Sri Lanka, Nepal, Maldives and Bhutan. In April 2007, at the Association's 14th summit, Afghanistan became its eighth member.[36]
The Cooperation Council for the Arab States of the Gulf (CCASG) is a trade bloc involving the sseven Arab states of the Persian Gulf, with many economic and social objectives. Created in 1981, the Council comprises the Persian Gulf states of Yemen Bahrain, Kuwait, Oman, Qatar, Saudi Arabia and the United Arab Emirates.[37]
The Asia Cooperation Dialogue (ACD) is a body created in 2002 to promote Asian cooperation at a continental level, helping to integrate the previously separate regional organizations of political or economical cooperation. The main objectives of the ACD are as follows:[38]
To promote interdependence among Asian countries in all areas of cooperation by identifying Asia's common strengths and opportunities which will help reduce poverty and improve the quality of life for Asian people whilst developing a knowledge-****d society within Asia and enhancing community and people empowerment;
To expand the trade and financial market within Asia and increase the bargaining power of Asian countries in lieu of competition and, in turn, enhance Asia's economic competitiveness in the global market;
To serve as the missing link in Asian cooperation by building upon Asia's potentials and strengths through supplementing and complementing existing cooperative frameworks so as to become a viable partner for other regions;
To ultimately transform the Asian continent into an Asian Community, capable of interacting with the rest of the world on a more equal footing and contributing more positively towards mutual peace and prosperity.
None of the above organisations have a specific mandate to promote or protect human rights, but each has some human rights related economic, social and cultural objectives.[39][38]
A number of Asian countries are accused of serious human rights abuses by the international community and human rights organisations.[40]
Europe
The Council of Europe, founded in 1949, is the oldest organisation working for European integration. It is an international organisation with legal personality recognised under public international law and has observer status with the United Nations. The seat of the Council of Europe is in Strasbourg in France. The Council of Europe is responsible for both the European Convention on Human Rights and the European Court of Human Rights.[41] These institutions bind the Council's members to a code of human rights which, though strict, are more lenient than those of the United Nations charter on human rights.[citation needed] The Council also promotes the European Charter for Regional or Minority Languages and the European Social Charter.[42] Membership is open to all European states which seek European integration, accept the principle of the rule of law and are able and willing to guarantee democracy, fundamental human rights and freedoms.[43]
The Council of Europe is separate from the European Union, but the latter is expected to accede to the European Convention and potentially the Council itself.[citation needed] The EU also has a separate human rights document; the Charter of Fundamental Rights of the European Union.[44]
The European Convention on Human Rights defines and guarantees since 1950 human rights and fundamental freedoms in Europe.[45] All 47 member states of the Council of Europe have signed this Convention and are therefore under the jurisdiction of the European Court of Human Rights in Strasbourg.[45] In order to prevent torture and inhuman or degrading treatment (Article 3 of the Convention), the Committee for the Prevention of Torture was established.[46]
The European Court of Human Rights is the only international court with jurisdiction to deal with cases brought by individuals (rather than states).[45]
Oceania
There are no regional approaches or agreements on human rights for Oceania, but most countries have a well-regarded human rights record.
Australia is the only western democracy with no constitutional or legislative bill of rights, but a number of laws have been enacted to protect human rights and the Constitution of Australia has been found to contain certain implied rights by the High Court. However, Australia has been criticised at various times for its immigration policies, treatment of asylum seekers, treatment of its indigenous population, and foreign policy.
Philosophies of human rights
Several theoretical approaches have been advanced to explain how and why human rights become part of social expectations.
One of the oldest Western philosophies on human rights is that they are a product of a natural law, stemming from different philosophical or religious grounds.
Other theories hold that human rights codify moral behavior which is a human social product developed by a process of biological and social evolution (associated with Hume). Human rights are also described as a sociological pattern of rule setting (as in the sociological theory of law and the work of Weber). These approaches include the notion that individuals in a society accept rules from legitimate authority in exchange for security and economic advantage (as in Rawls) - a social contract.
Natural rights
Main articles: Natural law and Natural right
Natural law theories **** human rights on a “natural” moral, religious or even biological order that is independent of transitory human laws or traditions.
Socrates and his philosophic heirs, Plato and Aristotle, posited the existence of natural justice or natural right (dikaion physikon, δικαιον φυσικον, Latin ius naturale). Of these, Aristotle is often said to be the father of natural law,[47] although evidence for this is due largely to the interpretations of his work by Thomas Aquinas.[48]
The development of this tradition of natural justice into one of natural law is usually attributed to the Stoics.[49]
Some of the early Church Fathers sought to incorporate the until then pagan concept of natural law into Christianity. Natural law theories have featured greatly in the philosophies of Thomas Aquinas, Francisco Suárez, Richard Hooker, Thomas Hobbes, Hugo Grotius, Samuel von Pufendorf, and John Locke.
In the Seventeenth century Thomas Hobbes founded a contractualist theory of legal positivism on what all men could agree upon: what they sought (happiness) was subject to contention, but a broad consensus could form around what they feared (violent death at the hands of another). The natural law was how a rational human being, seeking to survive and prosper, would act. It was discovered by considering humankind's natural rights, whereas previously it could be said that natural rights were discovered by considering the natural law. In Hobbes' opinion, the only way natural law could prevail was for men to submit to the commands of the sovereign. In this lay the foundations of the theory of a social contract between the governed and the governor.
Hugo Grotius ****d his philosophy of international law on natural law. He wrote that "even the will of an omnipotent being cannot change or abrogate" natural law, which "would maintain its objective validity even if we should assume the impossible, that there is no God or that he does not care for human affairs." (De iure belli ac pacis, Prolegomeni XI). This is the famous argument etiamsi daremus (non esse Deum), that made natural law no longer dependent on theology.
John Locke incorporated natural law into many of his theories and philosophy, especially in Two Treatises of Government. Locke turned Hobbes' prescription around, saying that if the ruler went against natural law and failed to protect "life, liberty, and property," people could justifiably overthrow the existing state and create a new one.
The Belgian philosopher of law Frank Van Dun is one among those who are elaborating a secular conception[50] of natural law in the liberal tradition. There are also emerging and secular forms of natural law theory that define human rights as derivative of the notion of universal human dignity.[51]
The term "human rights" has replaced the term "natural rights" in popularity, because the rights are less and less frequently seen as requiring natural law for their existence.[52]
Social contract
The Swiss-French philosopher Jean-Jacques Rousseau suggested the existence of a hypothetical social contract where a group of free individuals agree for the sake of the common good to form institutions to govern themselves. This echoed the earlier postulation by Thomas Hobbes that there is a contract between the government and the governed - and led to John Locke's theory that a failure of the government to secure rights is a failure which justifies the removal of the government.
International equity expert Paul Finn has echoed this view:
“ the most fundamental fiduciary relationship in our society is manifestly that which exists between the community (the people) and the state, its agencies and officials. ”
—Paul Finn[53]
The relationship between government and the governed in countries which follow the English law tradition is a fiduciary one. In equity law, a politician's fiduciary obligations are not only the duties of good faith and loyalty, but also include duties of skill and competence in managing a country and its people. Originating from within the Courts of Equity, the fiduciary concept exists to prevent those holding positions of power from abusing their authority. The fiduciary relationship between government and the governed arises from the governments ability to control people with the exercise of its power. In effect, if a government has the power to abolish any rights, it is equally burdened with the fiduciary duty to protect such an interest because it would benefit from the exercise of its own discretion to extinguish rights which it alone had the power to dispose of.[53]
Reciprocity
The Golden Rule, or the ethic of reciprocity states that one must do unto others as one would be treated themselves; the principle being that reciprocal recognition and respect of rights ensures that one's own rights will be protected. This principle can be found in all the world's major religions in only slightly differing forms, and was enshrined in the "Declaration Toward a Global Ethic" by the Parliament of the World's Religions in 1993.
Other theories of human rights
The philosopher John Finnis argues that human rights are justifiable on the grounds of their instrumental value in creating the necessary conditions for human well-being.[54][55] Interest theories highlight the duty to respect the rights of other individuals on grounds of self-interest:
“ Human rights law, applied to a State's own citizens serves the interest of states, by, for example, minimizing the risk of violent resistance and protest and by keeping the level of dissatisfaction with the government manageable ”
—Niraj Nathwani in Rethinking refugee law[56]
The biological theory considers the comparative reproductive advantage of human social behavior ****d on empathy and altruism in the context of natural selection.[57][58][59]
Main article: Human security
Human security is an emerging school of thought which challenges the traditional, state-****d conception of security and argues that a people-focused approach to security is more appropriate in the modern interdependent world and would be more effective in advancing the security of individuals and societies across the globe.
Concepts in human rights
Indivisibility of human rights
The most common categorization of human rights is to split them into civil and political rights, and economic, social and cultural rights.
Civil and political rights are enshrined in articles 3 to 21 of the Universal Declaration of Human Rights (UDHR) and in the International Covenant on Civil and Political Rights (ICCPR). Economic, social and cultural rights are enshrined in articles 22 to 28 of the Universal Declaration of Human Rights (UDHR) and in the International Covenant on Economic, Social and Cultural Rights (ICESCR).
The UDHR included both economic, social and cultural rights and civil and political rights because it was ****d on the principle that the different rights could only successfully exist in combination:
“ The ideal of free human beings enjoying civil and political freedom and freedom from fear and want can only be achieved if conditions are created whereby everyone may enjoy his civil and political rights, as well as his social, economic and cultural rights ”
—International Covenant on Civil and Political Rights and the International Covenant on Economic Social and Cultural Rights, 1966
This is held to be true because without civil and political rights the public cannot assert their economic, social and cultural rights. Similarly, without livelihoods and a working society, the public cannot assert or make use of civil or political rights (known as the full belly thesis).
The indivisibility and interdependence of all human rights has been confirmed by the 1993 Vienna Declaration and Programme of Action:
“ All human rights are universal, indivisible and interdependent and related. The international community must treat human rights globally in a fair and equal manner, on the same footing, and with the same emphasis ”
—Vienna Declaration and Program of Action, World Conference on Human Rights, 1993
This statement was again endorsed at the 2005 World Summit in New York (paragraph 121).
Although accepted by the signaturies to the UDHR, most do not in practice give equal weight to the different types of rights. Some Western cultures have often given priority to civil and political rights, sometimes at the expense of economic and social rights such as the right to work, to education, health and housing. For example, in the United States there is no universal access to healthcare free at the point of use.[60] That is not to say that Western cultures have overlooked these rights entirely (the welfare states that exist in Western Europe are evidence of this). Similarly the ex Soviet bloc countries and Asian countries have tended to give priority to economic, social and cultural rights, but have often failed to provide civil and political rights.
Categorization of human rights
Opponents of the indivisibility of human rights argue that economic, social and cultural rights are fundamentally different from civil and political rights and require completely different approaches. Economic, social and cultural rights are argued to be:[61]
positive, meaning that they require active provision of entitlements by the state (as opposed to the state being required only to prevent the breach of rights)
resource-intensive, meaning that they are expensive and difficult to provide
progressive, meaning that they will take significant time to implement
vague, meaning they cannot be quantitatively measured, and whether they are adequately provided or not is difficult to judge
ideologically divisive/political, meaning that there is no consensus on what should and shouldn't be provided as a right
socialist, as opposed to capitalist
non-justiciable, meaning that their provision, or the breach of them, cannot be judged in a court of law
aspirations or goals, as opposed to real 'legal' rights
Similarly civil and political rights are categorized as:
negative, meaning the state can protect them simply by taking no action
cost-free
immediate, meaning they can be immediately provided if the state decides to
precise, meaning their provision is easy to judge and measure
non-ideological/non-political
capitalist
justiciable
real 'legal' rights
In The No-Nonsense Guide to Human Rights Olivia Ball and Paul Gready argue that for both civil and political rights and economic, social and cultural rights it is easy to find examples which do not fit into the above categorisation. Amongst several others, they highlight the fact that maintaining a judicial system, a fundamental requirement of the civil right to due process before the law and other rights relating to judicial process, is positive, resource-intensive, progressive and vague, while the social right to housing is precise, justiciable and can be a real 'legal' right.[62]
Another categorization, offered by Karel Vasak, is that there are three generations of human rights: first-generation civil and political rights (right to life and political participation), second-generation economic, social and cultural rights (right to subsistence) and third-generation solidarity rights (right to peace, right to clean environment). Out of these generations, the third generation is the most debated and lacks both legal and political recognition. This categorisation is at odds with the indivisibility of rights, as it implicitly states that some rights can exist without others. Prioritisation of rights for pragmatic reasons is however a widely accepted necessity. Human rights expert Philip Alston argues:
“ If every possible human rights element is deemed to be essential or necessary, then nothing will be treated as though it is truly important. ”
—Philip Alston[63]
He, and others, urge caution with prioritisation of rights:
“ ...the call for prioritizing is not to suggest that any obvious violations of rights can be ignored. ”
—Philip Alston[63]
“ Priorities, where necessary, should adhere to core concepts (such as reasonable attempts at progressive realization) and principles (such as non-discrimination, equality and participation. ”
—Olivia Ball, Paul Gready[64]
Some human rights are said to be "inalienable rights." The term inalienable rights (or unalienable rights) refers to "a set of human rights that are fundamental, are not awarded by human power, and cannot be surrendered."
Universalism vs cultural relativism
The UDHR enshrines universal rights that apply to all humans equally, whichever geographical location, state, race or culture they belong to.
Proponents of cultural relativism argue for acceptance of different cultures, which may have practices conflicting with human rights.
For example female genital mutilation occurs in different cultures in Africa, Asia and South America. It is not mandated by any religion, but has become a tradition in many cultures. It is considered a violation of women's and girl's rights by much of the international community, and is outlawed in some countries.
Universalism has been described by some as cultural, economic or political imperialism. In particular, the concept of human rights is often claimed to be fundamentally rooted in a politically liberal outlook which, although generally accepted in Europe, Japan or North America, is not necessarily taken as standard elsewhere.
For example, in 1981, the Iranian representative to the United Nations, Said Rajaie-Khorassani, articulated the position of his country regarding the Universal Declaration of Human Rights by saying that the UDHR was "a secular understanding of the Judeo-Christian tradition", which could not be implemented by Muslims without trespassing the Islamic law.[65] The former Prime Ministers of Singapore, Lee Kuan Yew, and of Malaysia, Mahathir bin Mohamad both claimed in the 1990s that Asian values were significantly different from western values and included a sense of loyalty and foregoing personal freedoms for the sake of social stability and prosperity, and therefore authoritarian government is more appropriate in Asia than democracy. This view is countered by Mahathir's former deputy:
“ To say that freedom is Western or unAsian is to offend our traditions as well as our forefathers, who gave their lives in the struggle against tyranny and injustices. ”
—A Ibrabim in his keynote speech to the Asian Press Forum title Media and Society in Asia, 2 December 1994
and also by Singapore's opposition leader Chee Soon Juan who states that it is racist to assert that Asians do not want human rights.[66][67]
An appeal is often made to the fact that influential human rights thinkers, such as John Locke and John Stuart Mill, have all been Western and indeed that some were involved in the running of Empires themselves.[68][69]
Cultural relativism is a self-detonating position; if cultural relativism is true, then universalism must also be true. Relativistic arguments also tend to neglect the fact that modern human rights are new to all cultures, dating back no further than the UDHR in 1948. They also don't account for the fact that the UDHR was drafted by people from many different cultures and traditions, including a US Roman Catholic, a Chinese Confucian philosopher, a French zionist and a representative from the Arab League, amongst others, and drew upon advice from thinkers such as Mahatma Gandhi.[11]
Michael Ignatieff has argued that cultural relativism is almost exclusively an argument used by those who wield power in cultures which commit human rights abuses, and that those who's human rights are compromised are the powerless.[70] This reflects the fact that the difficulty in judging universalism versus relativism lies in who is claiming to represent a particular culture.
Although the argument between universalism and relativism is far from complete, it is an academic discussion in that all international human rights instruments adhere to the principle that human rights are universally applicable. The 2005 World Summit reaffirmed the international community's adherence to this principle:
“ The universal nature of human rights and freedoms is beyond question. ”
—2005 World Summit, paragraph 120
State and non-state actors
Companies, NGOs, political parties, informal groups, and individuals are known as non-State actors. Non-State actors can also commit human rights abuses, but are not generally subject to human rights law other than under International Humanitarian Law, which applies to individuals.[citation needed] Also, certain national instruments such as the Human Rights Act 1998 (UK), impose human rights obligations on certain entities which are not traditionally considered as part of government ("public authorities").[citation needed]
Multi-national companies play an increasingly large role in the world, and are responsible for a large number of human rights abuses.[71] Although the legal and moral environment surrounding the actions of governments is reasonably well developed, that surrounding multi-national companies is both controversial and ill-defined.[citation needed] Multi-national companies' primary responsibility is to their shareholders, not to those affected by their actions. Such companies may be larger than the economies of some the states within which they operate, and can wield significant economic and political power. No international treaties exist to specifically cover the behavior of companies with regard to human rights, and national legislation is very variable. Jean Ziegler, Special Rapporteur of the UN Commission on Human Rights on the right to food stated in a report in 2003:
“ the growing power of transnational corporations and their extension of power through privatization, deregulation and the rolling back of the State also mean that it is now time to develop binding legal norms that hold corporations to human rights standards and circumscribe potential abuses of their position of power. ”
—Jean Ziegler[72]
In August 2003 the Human Rights Commission's Sub-Commission on the Promotion and Protection of Human Rights produced draft Norms on the responsibilities of transnational corporations and other business enterprises with regard to human rights.[73] These were considered by the Human Rights Commission in 2004, but have no binding status on corporations and are not monitored.[74]
Theory of value and property
See also: Property
Henry of Ghent articulated the theory that every person has a property interest in their own body.[75] John Locke uses the word property in both broad and narrow senses. In a broad sense, it covers a wide range of human interests and aspirations; more narrowly, it refers to material goods. He argues that property is a natural right and it is derived from labour."[76] In addition, property precedes government and government cannot "dispose of the estates of the subjects arbitrarily." To deny valid property rights according to Locke is to deny human rights. The British philosopher had significant impacts upon the development of the Government of the UK and was central to the fundamental founding philosophy of the United States. Karl Marx later critiqued Locke's theory of property in his Theories of Surplus Value, seeing the beginnings of a theory of surplus value in Locke's works. In Locke's Second Treatise he argued that the right to own private property was unlimited as long as nobody took more than they could use without allowing any of their property to go to waste and that there were enough common resources of comparable quality available for others to create their own property. Locke did believe that some would be more "industrious and rational" than others and would amass more property, but believed this would not cause shortages. Though this system could work before the introduction of money, Marx argued in Theories of Surplus Value that Locke's system would break down and claimed money was a contradiction of the law of nature on which private property was founded.[77]
Reproductive rights
Reproductive rights are a subset of human rights relating to ***ual reproduction and reproductive health,[78][79][80] often held to include the right to control one's reproductive functions, such as the right to reproduce (as in opposition to compulsory sterilization and forced contraception), as well as the right to not reproduce (including support for access to birth control), the rights to privacy, medical coverage, contraception, family planning and protection from discrimination, harassment and gender-oriented harm.
International discourse on reproductive rights first began with the United Nation's 1968 International Conference on Human Rights. The sixteenth article of the Proclamation of Tehran states, "Parents have a basic human right to determine freely and responsibly the number and the spacing of their children."[78] Reproductive rights advocates work to secure affordable access to abortion, contraception, as well as education about contraception and ***ually transmitted infections, and freedom from coerced sterilization and contraception, for both men and women. In addition, many reproductive rights advocates, as well as many pro-life advocates, endeavor to protect all people from harmful gender-****d practices. Examples include cultural practices such as female genital cutting, or FGC, male genital mutilation, or MGM, as well as state, customary and religious laws that contribute to women's political and economic disenfranchisment.[79][78][80]
Legal issues in human rights
Human rights vs national security
See also: National security and Anti-terrorism legislation
With the exception of non-derogable human rights (international conventions class the right to life, the right to be free from slavery, the right to be free from torture and the right to be free from retroactive application of penal laws as non-derogable[81]), the UN recognises that human rights can be limited or even pushed aside during times of national emergency - although
“ the emergency must be actual, affect the whole population and the threat must be to the very existence of the nation. The declaration of emergency must also be a last resort and a temporary measure ”
—United Nations. The Resource[81]
Rights that cannot be derogated for reasons of national security in any circumstances are known as peremptory norms or jus cogens. Such United Nations Charter obligations are binding on all states and cannot be modified by treaty.
Examples of national security being used to justify human rights violations include the Japanese American internment during World War II,[82] Stalin's Great Purge,[83] and the actual and alleged modern-day abuses of terror suspects rights by some western countries, often in the name of the so-called War on Terror.[84][85]
Human rights violations
Human rights violations occur when any state or non-state actor breaches any part of the UDHR treaty or other international human rights or humanitarian law. In regard to human rights violations of United Nations laws. Article 39 of the United Nations Charter designates the UN Security Council (or an appointed authority) as the only tribunal that may determine UN human rights violations.
Human rights abuses are monitored by United Nations committees, national institutions and governments and by many independent non-governmental organizations, such as Amnesty International, Human Rights Watch, World Organisation Against Torture, Freedom House, International Freedom of Expression Exchange and Anti-Slavery International. These organisations collect evidence and documentation of alleged human rights abuses and apply pressure to enforce human rights laws.
Only a very few countries do not commit significant human rights violations, according to Amnesty International. In their 2004 human rights report (covering 2003), the Netherlands, Norway, Denmark, Iceland and Costa Rica are the only (mappable) countries that did not (in their opinion) violate at least some human rights significantly.[86]
There are a wide variety of data****s available which attempt to measure, in a rigorous fashion, exactly what violations governments commit against those within their territorial jurisdiction.[citation needed] An example of this is the list created and maintained by Prof. Christian Davenport at the University of Maryland.[87]
Wars of aggression, war crimes and crimes against humanity, including genocide, are breaches of International humanitarian law and represent the most serious of human rights violations.
When a government closes a geographical region to journalists, it raises suspicions of human rights violations. Seven regions are currently closed to foreign journalists:
Chechnya, Russia [6]
Jaffna, Sri Lanka [7]
Myanmar (Burma)
North Korea
Papua, Indonesia [8]
Peshawar, Pakistan [9]
Tibet, People's Republic of China [10]
Currently-debated rights
With the advances of technology, medicine, and human philosophy, the status quo of human rights thinking is constantly challenged. New, unforeseen possibilities and events occur, which can affect existing rights or potentially require new ones.
Water
There is no current universal human right to water, binding or not, enshrined by the United Nations or any other multilateral body. In November 2002, the United Nations Committee on Economic, Social and Cultural Rights issued a non-binding comment affirming that access to water was a human right:
“ the human right to water is indispensable for leading a life in human dignity. It is a prerequisite for the realization of other human rights. ”
—United Nations Committee on Economic, Social and Cultural Rights
This principle was reaffirmed at the 3rd and 4th World Water Councils in 2003 and 2006. This marks a departure from the conclusions of the 2nd World Water Forum in The Hague in 2000, which stated that water was a commodity to be bought and sold, not a right.[88] There are calls from many NGOs and politicians to enshrine access to water as a binding human right, and not as a commodity.[89]
Fetal rights
Proposed rights of the fetus have been a controversial subject. Currently, human rights only apply to individuals. The point at which a fetus is considered to be an individual is disputed by pro-life and pro-choice groups in particular. Those who are pro-life believe that an individual's life begins at the moment of conception, or at the time of implantation, and therefore believe that the fetus has equal rights to any other person. Others, including many pro-choice groups, argue that until the point at which the fetus is viable (or could survive alone), typically marked somewhere within the third trimester, the rights of the fetus are secondary to and dependent upon those of the mother.[citation needed]
Environmental rights
The onset of various environmental issues, especially climate change, has created potential conflicts between different human rights. Human rights ultimately require a working ecosystem and healthy environment, but the granting of certain rights to individuals may damage these. In the area of environmental rights, the responsibilities of multi-national corporations, so far relatively unaddressed by human rights legislation, is of paramount consideration.[citation needed]
Future rights
Future technological advances, such as the possibility of mass space travel, the advances in the internet and the possibility of access to huge amounts of information, and others, all raise the possibility of new rights.[citation needed]
In Britain of late, reformers[who?] have demanded a new Supreme Court-enforceable Bill of Rights to protect a much wider range of economic, political, judicial, communication, and personal rights and freedoms than are currently protected under basic law.[90]
Gay rights
Current gay rights issues, such as same-*** marriage, gay adoption rights, and protection from discrimination are considered by some[who?] to be human rights. Current campaigns, such as the human rights campaign, specifically focus on the rights of the LGBT community.[91]
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