THE ORIGIN AND MEANING OF HUMAN RIGHTS UN HABITAT Nairobi, Kenya 23-25 October 2013 Urban Jonsson

OUTLINE The moral origin of human rights The legal origin of human rights The meaning of human rights Different types of human rights duties The difference between a Right and a Privilege

What is more important: The Origin or The Meaning?

The Origin of Human Rights

Human Rights = Morality + Legality HUMAN RIGHTS TODAY Human Rights = Morality + Legality

The Moral Origin of Human Rights

THE MORAL FOUNDATION OF HUMAN RIGHTS Moral codes have existed and do exist in all societies on what is right or wrong, permissible or not permissible, legitimate or not legitimate etc.

“The Golden Rule” In Religions

THE GOLDEN RULE - BUDDHISM “Hurt not others in ways that you yourself would find hurtful”

THE GOLDEN RULE - CHRISTIANITY “Do unto others as you would have them do unto you”

THE GOLDEN RULE - HINDUISM “Do naught to others, if done to thee, would cause thee pain; this is the sum of duty”

THE GOLDEN RULE - ISLAM “No one of you is a believer until he desires for his brother that which he desires for himself”

THE GOLDEN RULE - JUDAISM “What is hateful to you, do not to your fellow man. That is the entire law; all the rest is commentary”

How is this possible?

I argue that this is the result of the individual human being's ‘humanitarian instinct’

Human rights reflect the very nature of Human Beings

THE INFLUENCE BY WESTERN THOUGHT It was the influence of the Western ‘Enlightenment’ with concepts of: Secularism Equality Universality that influenced the development of today’s human rights

DISCUSSION

Human Rights = Morality + Legality

The Legal Origin of Human Rights

The United Nations and Human Rights

THE ORIGINAL PILLARS OF THE UN SYSTEM ACCORDING TO THE UN CHARTER 1945 PEACE JUSTICE FREEDOMS HUMAN RIGHTS

THE UNIVERSAL DECLARATION OF HUMAN RIGHTS (1948) “The 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”

THE TWO INTERNATIONAL HUMAN RIGHTS COVENANTS The International Covenant on Civil and Political Rights (ICCPR) The International Covenant on Economic, Social and Cultural Rights (ICESCR)

CIVIL AND POLITICAL RIGHTS Right to life Right to freedom from slavery, servitude, forced or compulsory labor Liberty and security Freedom of movement

CIVIL AND POLITICAL RIGHTS 5. Equality before the law 6. Freedom of thought, conscience and religion 7. Freedom of expression and peaceful assembly 8. Right to vote and be elected

ECONOMIC, SOCIAL AND CULTURAL RIGHTS Right to work and to form trade unions Right to social security Right to food Right to health

ECONOMIC, SOCIAL AND CULTURAL RIGHTS 5. Right to education 6. Right to shelter 7. Right of children to be protected from all forms of exploitation

Is there any fundamental difference between CPR and ESCR? CONTROVERSIAL ISSUE Is there any fundamental difference between CPR and ESCR?

THE CORE UN HUMAN RIGHTS TREATIES UNITED NATIONS CHARTER UNIVERSAL DECLARATION OF HUMAN RIGHTS INTERNATIONAL CONVENANT ON CIVIL AND POLITICAL RIGHTS (ICCPR) + 2 Optional Protocols Individual Complaints Death Penalty Ratified by 149 States (9 December 2002) INTERNATIONAL CONVENANT ON ECONOMIC, SOCIAL AND CULTURAL RIGHTS (ICESCR) Ratified by 146 States (9 December 2002 International Convention on the Elimination of All Forms of Racial Discrimination - Ratified 165 States Convention on the Elimination of All Forms of Discrimination Against Women + Optional Protocol - Ratified 170 States Convention Against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment Optional Protocol (prison inspections) Ratified 132 States. Convention on the Rights of the Child + 2 Optional Protocols Armed conflict Sale of children, child prostitution and child pornography - Ratified 191 States Convention on the Rights of all Migrant Workers and their Families

The Convention on the Rights of Persons with Disabilities (2007) NEW CONVENTION! The Convention for the Protection of All Persons from Enforced Disappearance (2006) The Convention on the Rights of Persons with Disabilities (2007)

FROM NATURAL RIGHTS TO HUMAN RIGHTS In ‘natural rights’ duties of some people are recognized, which results in privileges or ‘rights’ of others In International Humanitarian Law (Geneva Conventions) duties of military commanders are stipulated, which means that civilians have some kind of claims In International Human Rights Law claims of individuals are recognised, which results in duties of others

DISCUSSION

The Meaning of Human Rights

A SIMPLE ‘DEFINITION’ OF HUMAN RIGHTS Human rights are those things that ought to be done to everybody and those things that ought not to be done to anybody

THE MEANING OF HUMAN RIGHTS CORRELATIVE DUTY VALID CLAIM Claim (Right) Holder Duty Bearer (Subject) (Object) (content) “A school-aged child has a valid claim (right) to education – others have duties (or obligations) to ensure that the right is realized.”

RIGHT-HOLDERS AND CLAIM-HOLDERS All individual human beings are RIGHT-HOLDERS of those rights codified in UN International Covenants and Conventions If the individual lives in a country that has ratified the International Covenant or Convention with the specific right codified, the individual becomes a CLAIM-HOLDER

The Pattern of Human Rights

PATTERN OF HUMAN RIGHTS (1) Children have a right to adequate food Parents have a duty to provide food for their children (primary duty-bearers) Parents may fail to meet their duties to provide food, because they have no land or job. They have as secondary claim-holders their rights to land or a job not realised

PATTERN OF HUMAN RIGHTS (2) Their rights may not be realised because the community or the state cannot meet their correlative duties (secondary duty-bearers) A pattern of claim-duty relationships in society

Claim-Holders and Duty-Bearers are ROLES Claim(Right)-Holders and Duty-Bearers are roles into which individuals or groups of individuals enter depending on the context Example Tenants - Landlord

Different Types of Human Rights Duties

DIFFERENT TYPES OF DUTIES OR OBLIGATIONS The Duty to Respect The Duty to Protect The Duty to Facilitate The Duty to Provide

DUTIES AND OBLIGATIONS The Obligation / Duty to Respect requires the duty-bearer to refrain from interfering directly or indirectly with the enjoyment of the right Example States should refrain from carrying out forced evictions; denying security of tenure to particular groups; or denying restitution to particular groups

DUTIES AND OBLIGATIONS The Obligation / Duty to Protect requires the duty-bearer to take measures that prevent third parties from interfering with the enjoyment of the right Example Ensure that private actors comply with human rights standards related to the Right to Adequate Housing, incl. regulating the housing and rent markets

DUTIES AND OBLIGATIONS The Obligation / Duty to Facilitate requires the duty-bearers to adopt appropriate legislative, administrative, budgetary, judicial, promotional, and other measures towards the full realization of the right Example Adopt a national housing policy and national housing plan, with a focus on disadvantaged or marginalized groups

DUTIES AND OBLIGATIONS The Obligation / Duty to Provide requires the duty-bearers to directly provide assistance or services for the realization of the right Example Prevent and address homeless-ness; provide the physical infrastructure required for housing; and provide housing subsidies: and stop all illegal forced evictions

DISCUSSION

The Difference between a Right and a Privilege

What is the difference between a right and a privilege? Table Group Work What is the difference between a right and a privilege?

THE DIFFERENCE BETWEEN A RIGHT AND A PRIVILEGE Right: As a human being I am born with all human rights. If my country ratifies a Convention with a specific right, I have a valid claim to have the right realised. I become a claim-holder Privilege: I am not born with any privilege. I cannot claim a privilege. Any privilege can be withdrawn at any time

DISCUSSION