2008/9 Schools Wikipedia Selection. Related subjects: Law
|Negative & positive|
The idea of human rights descended from the philosophical idea of natural rights; some recognize virtually no difference between the two and regard both as labels for the same thing while others choose to keep the terms separate to eliminate association with some features traditionally associated with natural rights.
As is evident in the United Nations Universal Declaration of Human Rights, human rights, at least in the post-war period, are conceptualized as based on inherent human dignity, retaining their universal character.
The existence, validity and the content of human rights continue to be the subject to debate in philosophy and political science and many other forms. Legally, human rights are defined in international law and covenants, and further, in the domestic laws of many states. However, for many people the doctrine of human rights goes beyond law and forms a fundamental moral basis for regulating the contemporary geo-political order. For them, they are democratic ideals.
Human rights legislation
Where it has been adopted, legislation commonly contains:
- security rights that prohibit crimes such as murder, massacre, torture and rape
- liberty rights that protect freedoms in areas such as belief and religion, association, assembling and movement
- political rights that protect the liberty to participate in politics by expressing themselves, protesting, participating in a republic
- due process rights that protect against abuses of the legal system such as imprisonment without trial, secret trials and excessive punishments
- equality rights that guarantee equal citizenship, equality before the law and nondiscrimination
- welfare rights (also known as economic rights) that require the provision of, e.g., education, paid holidays, and protections against severe poverty and starvation
- group rights that provide protection for groups against ethnic genocide and for the ownership by countries of their national territories and resources
It is often argued that "welfare rights" are not human rights, since they cannot even in theory be provided to everyone in all conditions (e.g., if somebody is unemployed or self-employed, if the society is very poor or if there are too few doctors or teachers or if they are not willing to work), and that only the classical human rights that do not require any active provision by anyone, just the lack of violating actions by other humans, should be called human rights. However, the communist countries required "welfare rights" to be added to the UN Declaration of Human Rights, threatening not to sign the declaration otherwise (which they did anyway in the end). The communist's alleged motivation was to belittle any accusations on human rights violations by answering that the West does not completely provide all "welfare rights" either. There is an analogous discussion on some "group rights".
History of human rights legislation
Appalled by the barbarism of the Second World War, the United Nations General Assembly adopted the Universal Declaration of Human Rights in 1948. While not legally binding, it urged 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 behaviour of states and press upon them duties to their citizens following the model of the rights-duty duality.
Many states wanted to go beyond the declaration of rights and create legal covenants which would put greater pressure on states to follow human rights norms. Because some states disagreed over whether this international covenant should contain economic and social rights (which usually require a greater effort to fulfill on the part of individual states), two treaties were prepared.
In 1966 and 1976 respectively, the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights came into force. With the Universal Declaration of Human Rights these documents form the International bill of rights.
|“||...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
Since then several other pieces of legislation have been introduced at the international level:
- Convention on the Prevention and Punishment of the Crime of Genocide (entry into force: 1951)
- Convention against Torture (entry into force: 1984)
- Convention on the Elimination of All Forms of Racial Discrimination (entry into force: 1969)
- Convention on the Elimination of All Forms of Discrimination Against Women (entry into force: 1981) [http//www.un.org/womenwatch/daw/cedaw/frame.htm]
- Convention on the Rights of the Child (entry into force: 1989)
- Rome Statute of the International Criminal Court (entry into force: 2002)
With the exception of the non-deformable human rights (the four most important are 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), 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" . Conduct in war is governed by International Humanitarian Law.
The International Covenant on Civil and Political Rights created an agency, the Human Rights Committee to promote compliance with its norms. The 18 members of the committee express opinions as to whether a particular practice is a human rights violation, although its reports are not legally binding.
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 bodies to monitor and study human rights, under the leadership of the UN High Commissioner for Human Rights (UNHCHR).
There are also many regional agreements and organisations governing human rights including the European Court of Human Rights, which is the only international court with jurisdiction to deal with cases brought by individuals (rather than states); the African Commission on Human and Peoples' Rights; Inter-American Commission on Human Rights; Cairo Declaration on Human Rights in Islam; Inter-American Court of Human Rights; and Iran's Defenders of Human Rights Centre.
History of human rights
The Persian Empire (Iran) established unprecedented principles of human rights in the 6th century BC under the reign of Cyrus the Great. After his conquest of Babylon in 539 BC, the king issued the Cyrus Cylinder, discovered in 1879 and recognized by many today as the first human rights document. The cylinder declared that citizens of the empire would be allowed to practice their religious beliefs freely. It also abolished slavery, so all the palaces of the kings of Persia were built by paid workers in an era where slaves typically did such work. These two reforms were reflected in the biblical books of Chronicles and Ezra, which state that Cyrus released the followers of Judaism from slavery and allowed them to migrate back to their land. The cylinder now lies in the British Museum, and a replica is kept at the United Nations headquarters.
Ur-Nammu, the king of Ur created what was arguably the first legal codex in ca. 2050 BC. Several other sets of laws were created in Mesopotamia including the Code of Hammurabi, (ca. 1780 BC) which is one of the best preserved examples of this type of document. It shows rules and punishments if those rules are broken on a variety of matters including women's rights, children's rights and slave rights.
Three centuries later, the Mauryan Empire of ancient India established unprecedented principles of civil rights in the 3rd century BC under the reign of Ashoka the Great. After his brutal conquest of Kalinga in circa 265 BC, he felt remorse for what he had done, and as a result, adopted Buddhism. From then, Ashoka, who had been described as "the cruel Ashoka" eventually came to be known as "the pious Ashoka". During his reign, he pursued an official policy of nonviolence ( ahimsa). The unnecessary slaughter or mutilation of animals was immediately abolished, such as sport hunting and branding. Ashoka also showed mercy to those imprisoned, allowing them outside one day each year, and offered common citizens free education at universities. He treated his subjects as equals regardless of their religion, politics or caste, and constructed free hospitals for both humans and animals. Ashoka defined the main principles of nonviolence, tolerance of all sects and opinions, obedience to parents, respect for teachers and priests, being liberal towards friends, humane treatment of servants (slavery was non-existent in India at the time), and generosity towards all. These reforms are described in the Edicts of Ashoka.
Elsewhere societies have located the beginnings of human rights in religious documents. The Vedas, the Bible, the Qur'an and the Analects of Confucius are some of the oldest written sources which address questions of people’s duties, rights, and responsibilities. In the case of China, it is though clear that there were no human rights in the society at the time of Confucius (551-479 BC) because there was no natural right or Naturrecht: rights were only bestowed according to the position and role of man in society (cf. ritual, relationships and filial piety in Confucianism). This means that there were no individual rights man enjoyed by birth, nor were they unalienable (for more interested readers: cf. the writings of Hans-Georg Möller, Brock University, Canada, cf. references).
In 1215 King John of England issued the Magna Carta, a document forced upon him by the Pope and English barons, which required him to renounce certain rights, respect certain legal procedures and accept that the will of the king could be bound by law. It forbade arbitrary imprisonment and the collection of taxes without the approval of the people. Although the document did not itself limit the power of the king in the Middle Ages, its later reinterpretation in the Elizabethean and Stuart periods established it as a powerful document on which constitutional law was founded in Britain and elsewhere.
In 1222, the Manden Charter in Mali was a declaration of essential human rights, including the right to life, and opposed the practice of slavery.
The conquest of the Americas in the 16th century by the Spanish resulted in vigorous debate about human rights in Spain. The debate from 1550-51 between Las Casas and Juan Ginés de Sepúlveda at Valladolid was probably the first on the topic of human rights in European history.
Several 17th and 18th century European philosophers, most notably John Locke, developed the concept of natural rights, the notion that people possess certain rights by virtue of being human. Though Locke believed natural rights were derived from divinity since humans were creations of God, his ideas were important in the development of the modern notion of rights. Lockean natural rights did not rely on citizenship nor any law of the state, nor were they necessarily limited to one particular ethnic, cultural or religious group.
Two major revolutions occurred that century in the United States (1776) and in France (1789). The United States Declaration of Independence includes concepts of natural rights and famously states "that all men are created equal, that they are endowed by their creator with certain unalienable rights, that among these are life, liberty and the pursuit of happiness."
Similarly, the Declaration of the Rights of Man and of the Citizen defines a set of individual and collective rights of the people. These are held to be universal - not only to French citizens but to all men without exception.
Philosophers such as Thomas Paine, John Stuart Mill and Hegel expanded on the theme of universality during the 18th and 19th centuries. In 1831 William Lloyd Garrison wrote in a newspaper called The Liberator that he was trying to enlist his readers in "the great cause of human rights" so the term human rights probably came into use sometime between Paine's The Rights of Man and Garrison's publication. In 1849 a contemporary, Henry David Thoreau, wrote about human rights in his treatise On the Duty of Civil Disobedience which was later influential on human rights and civil rights thinkers. United States Supreme Court Justice Davis Davis, in his 1867 opinion for Ex Parte Milligan, wrote "By the protection of the law, human rights are secured; withdraw that protection and they are at the mercy of wicked rulers or the clamor of an excited people."
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.
Philosophy of human rights
|Negative & positive|
Human rights are sometimes divided into negative and positive rights. "Negative" human rights, which follow mainly from the Anglo-American legal tradition, are rights that a government and/or private entities may not take action to remove. For example, right to life and security of person; freedom from slavery; equality before the law and due process under the rule of law; freedom of movement; freedoms of speech, religion, assembly; the right to bear arms. These have been codified in documents including the Scottish Claim of Right, the English Bill of Rights the Canadian Charter of Rights and Freedoms and the United States Bill of Rights and Fourteenth Amendment.
"Positive" human rights mainly follow from the Rousseauian Continental European legal tradition and denote entitlements that the state is obliged to protect and provide. Examples of such rights include: the rights to education, to health care, to a livelihood. Positive rights have been codified in the Universal Declaration of Human Rights (Articles 22-28) and in many 20th-century constitutions.
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. Some theorists discredit these divisions by claiming that rights are interconnected. Arguably, for example, basic education is necessary for the right to political participation.
Some human rights are said to be " inalienable rights." This is not a term that has a precise meaning today, but is a term from English property law, used metaphorically, and is usually a reference to the United States Declaration of Independence, emphasizing the importance of a claimed right.
Justification of human rights
Several theoretical approaches have been advanced to explain how human rights become part of social expectations. The biological theory considers the comparative reproductive advantage of human social behaviour based on empathy and altruism in the context of natural selection. Other theories hold that human rights codify moral behaviour, which is a human, social product developed by a process of biological and social evolution (associated with Hume) or as a sociological pattern of rule setting (as in the sociological theory of law and the work of Weber). This approach includes the notion that individuals in a society accept rules from legitimate authority in exchange for security and economic advantage (as in Rawls).
On the other hand, natural law theories base human rights on the “natural” moral order that derives from religious precepts such as common understandings of justice and the belief that moral behaviour is a set of objectively valid prescriptions. Some have used religious texts such as the Bible and Qur'an to support human rights arguments. However, there are also more secular forms of natural law theory that understand human rights as derivative of the notion of universal human dignity.
Yet others have attempted to construct an " interests theory" defence of human rights. For example 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. Some interest-theorists also justify the duty to respect the rights of other individuals on grounds of self-interest (rather than altruism or benevolence). Reciprocal recognition and respect of rights ensures that one's own will be protected.
Ultimately, the term "human rights" is often itself an appeal to a transcendent principle, not based on existing legal concepts. The term "humanism" refers to the developing doctrine of such universally applicable values. 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.
Criticism of human rights
One of the arguments made against the concept of human rights is that it suffers from cultural imperialism. In particular, the concept of human rights is fundamentally rooted in a politically liberal outlook which, although generally accepted in Western Europe, Japan, India and North America, is not necessarily taken as standard elsewhere. 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. The cultural imperialism argument achieves even greater potency when it is made on the basis of religion. Some histories of human rights emphasise the Christian influence on the agenda and then question whether this is in keeping with the tenets of other world religions. 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..
Yet, some feel that the cultural imperialism argument is not entirely factual. While Western political philosophers like Locke, Hobbes and Mill made important contributions to the development of modern notions of human rights, the concept of human rights itself has origins in many world cultures and religions. Additionally, this argument leads to absolute relativism if taken too far. If all viewpoints and moral frameworks are equally valid then one cannot condemn any behaviour, however outrageous or horrific. In practice, human rights offer a basis to criticise such behaviour or conduct, including imperialism. As such, human rights can be a transformative tool for self-determination.
One way out of the cultural imperialism and relativism debate is to argue that the body of human rights exists in a hierarchy or can undergo derogation. The relationship between different rights is complex since it can be argued that some are mutually reinforcing or supportive. For example, political rights, such as the right to hold office, cannot be fully exercised without other social and cultural pre-requisites, such as a decent education. Whether the latter should therefore be included as a first-generation right is a debated point.
However, it can be argued that the idea of human rights is not entirely universal, and to impose them universally may have harmful consequences. Western developed states often stress the need for a negative rights construct while the developing world seeks a more positive rights construct. In regards to progress in human rights, "institutions are more written in the "hearts of the people" (which cannot be changed overnight) than in the pages of law books. Changing the de jure institutions does not by any means imply a transformative change in the de facto institutions and norms that govern long term behavor" (Ellerman 102-103). Without internal motivation, external leverage can hamper local human rights progress.
Another important philosophical criticism of human rights is their presumed basis in morality. If moral beliefs are fundamentally expressions of individuals' personally held preferences then the objective morality upon which human rights are founded is rejected. Richard Rorty has argued that human rights are not based upon the exercise of reason but a sentimental vision of humanity (even though he does support human rights in law on the basis of interests theory). Alasdair MacIntyre has written that a belief in rights is on a par with "belief in witches and unicorns". But without care this criticism can become an apology for all behaviour as it aligns closely with moral relativism. It offends some by claiming that moral beliefs are personally held preferences and that there are no objective criterion to deduce valid moral beliefs from.
A final set of debating points revolves around the question of who has the duty to uphold human rights. Human rights have historically arisen from the need to protect citizens from abuse by the state and this might suggest that all mankind has a duty to intervene and protect people wherever they are. Divisive national loyalties, which emphasise differences between people rather than their similarities, can thus be seen as a destructive influence on the human rights movement because they deny people's innately similar human qualities. But others argue that state sovereignty is paramount, not least because it is often the state that has signed up to human rights treaties in the first place. Commentators' positions in the argument for and against intervention and the use of force by states are influenced by whether they believe human rights are largely a legal or moral duty and whether they are of more cosmopolitan or nationalist persuasion.
Violations of human rights
Human rights Violation is abuse of people in a way that it abuses any fundamental human rights. It is a term used when a government violates national or international law related to the protection of human rights.
According to the Universal Declaration of Human Rights, fundamental human rights are violated when, among other things:
- A certain race, creed, or group is denied recognition as a "person". (Articles 2 & 6)
- Men and women are not treated as equal. (Article 2)
- Different racial or religious groups are not treated as equal. (Article 2)
- Life, liberty or security of person are threatened. (Article 3)
- A person is sold as or used as a slave. (Article 4)
- Cruel, inhuman or degrading punishment is used on a person (such as torture or execution). (Article 5) (See also Prisoners' rights)
- Victims of abuse are denied an effective judicial remedy. (Article 8)
- Punishments are dealt arbitrarily or unilaterally, without a proper and fair trial. (Article 11)
- Arbitrary interference into personal, or private lives by agents of the state. (Article 12)
- Citizens are forbidden to leave or return to their country. (Article 13)
- Freedom of speech or religion are denied. (Articles 18 & 19)
- The right to join a trade union is denied. (Article 23)
- Education is denied. (Article 26)
Human rights violations and abuses include those documented by 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.
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 violate at least some human rights significantly.
Some people believe human rights abuses are more common in dictatorships or theocracies than in democracies because freedom of speech and freedom of the press tend to uncover state orchestrated abuse and expose it. Nonetheless human rights abuses do occur in democracies. For example, the Macpherson report found that the British police had been institutionally racist in the handling of the death of Stephen Lawrence. Also Amnesty International has called the running of Guantanamo Bay detainment camp by the United States "a human rights scandal" in a series of reports .
In over 90 countries National human rights institutions (NHRIs) have been set up to protect, promote or monitor human rights in a given country. There are now over 90 such bodies. Not all of them are compliant with the United Nations standards as set out in the 1993 Paris Principles, but the amount and effect of these institutions is increasing.
HURIDOCS has developed extensive methodologies for monitoring and documenting human rights violations, and more resources can be found at Human Rights Tools.