Human Rights

Different Kinds of Rights Legal rights – These are rights laid down in law and because they can be defended in a national court of law, they are most solid of all rights. Moral rights – These arise out of general principles of fairness and justice. A moral rights may or may not be enforced and supported by the law of the land. FACT vs ASPIRATIONS/ IDEALS

Human Rights There is a higher category of moral rights called human rights. These are rights which apply to all people at all times in all situations. We all have duties imposed upon us by these HRs, that is to say that we have a duty to recognise, respect and uphold the rights of our fellow human beings.

Basic Rights Some rights are more important and basic than others. Examples include: the right to life freedom of speech the right to be recognised as a person before the law the right to equal protection in law freedom from arbitrary arrest and detention

Importance of Basic Rights These rights provide the foundation on which the enjoyment of other rights depends. They cannot be restricted or taken away without affront to human dignity which society has a fundamental duty to protect at all times. All notes up to this point are taken from “GP Power” by R Wilks.

Philosophical Foundations Human Rights have their origins in the liberal democratic tradition of Western Europe (a tradition itself a product of Greek philosophy, Roman law and Judeo-Christian tradition, the humanism of the Reformation and the Age of Reason). The parliamentary democracies of Western Europe are the direct heirs of the tradition. This can be seen in the French Declaration of the Rights of Man and the Citizen 1789 which states in its second article: “The aim of all political association is the conservation of the natural and inalienable rights of man. These rights are: liberty, property, security and resistance to oppression.”

What is meant by “natural”, “inalienable” and “self-evident”? 10 Commandments 1. You shall have no other gods before Me. 2. You shall not make for yourself a carved image 3. You shall not take the name of the Lord your God in vain 4. Remember the Sabbath day, to keep it holy. 5. Honor your father and your mother 6. You shall not murder. 7.You shall not commit adultery. 8. You shall not steal. 9. You shall not bear false witness against your neighbor. 10. You shall not covet

Natural Law Positive Law refers to man-made laws

Inalienable Self-evident means without the need for proof.

Other Antecedents Magna Carta (Great Charter of Freedom) 1215 of England: guaranteed freedom from imprisonment or from dispossession of man’s property and freedom from prosecution or exile “unless by the lawful judgment of his peers or by the law of the land” (fair trial) Habeas Corpus Acts and the Bill of Rights of 1689: Responding to abusive detention of persons without legal authority, public pressure on the English Parliament caused them to adopt this act, which established a critical right that was later written into the Constitution for the United States.

Other Antecedents Virginia Declaration of Rights (US) 1776 The United States Declaration of Independence, 1776 (post-independence) French Declaration of the Rights of Man and if the Citizen 1789 (post-French Revolution) Influences from political thinkers: John Locke, Montesquieu, Jean Jacque Rousseau, Thomas Jefferson Universal Declaration of Human Rights adopted on 10 Dec, 1948 (post WWII) – Rene Cassin, father of UDHR

Texts I That all men are by nature equally free and independent, and have certain inherent rights, of which, when they enter into a state of society, they cannot, by any compact, deprive or divest their posterity; namely, the enjoyment of life and liberty, with the means of acquiring and possessing property, and pursuing and obtaining happiness and safety. II That all power is vested in, and consequently derived from, the people; that magistrates are their trustees and servants, and at all times amenable to them. We hold these truths to be self-evident, 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. That to secure these rights … The United States Declaration of Independence 1776 Virginia Declaration of Rights 1776

Universal Declaration of Human Rights Preamble Whereas 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, Whereas disregard and contempt for human rights have resulted in barbarous acts which have outraged the conscience of mankind, and the advent of a world in which human beings shall enjoy freedom of speech and belief and freedom from fear and want has been proclaimed as the highest aspiration of the common people, 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, Whereas it is essential to promote the development of friendly relations between nations, Whereas the peoples of the United Nations have in the Charter reaffirmed their faith in fundamental human rights, in the dignity and worth of the human person and in the equal rights of men and women and have determined to promote social progress and better standards of life in larger freedom, Whereas Member States have pledged themselves to achieve, in co-operation with the United Nations, the promotion of universal respect for and observance of human rights and fundamental freedoms, Whereas a common understanding of these rights and freedoms is of the greatest importance for the full realization of this pledge,

Now, Therefore THE GENERAL ASSEMBLY proclaims THIS UNIVERSAL DECLARATION OF HUMAN RIGHTS as a common standard of achievement for all peoples and all nations, to the end that every individual and every organ of society, keeping this Declaration constantly in mind, shall strive by teaching and education to promote respect for these rights and freedoms and by progressive measures, national and international, to secure their universal and effective recognition and observance, both among the peoples of Member States themselves and among the peoples of territories under their jurisdiction.

Are Human Rights Universal? Similar expressions of the rights of man have been found in the “Charter of Cyrus”, “Code of Hammourabi” King of Babylon, in 2000 B.C, India, China, Japan, Persia, Russia, Turkey, African countries, pre-Columbian civilizations of South America

Kinds of Rights Civil, political, social, economic, cultural There is no hierarchy of rights and all rights should be regarded as being of equal priority. Denial of one right invariably impedes enjoyment of others, leading to the recognition by UN Member States that human rights are indivisible, interdependent and inter-related (Source: Vienna Declaration and Programme of Action, 1993)

Fundamental Rights Human rights necessary for survival and dignified living include: The rights to life and liberty The right to a standard of living adequate for health and wellbeing of the individual and his/her family, including food, water and housing, and the right to continuous improvements of living conditions The right to social protection in times of need The right to the highest attainable standard of physical and mental health The right to work and to just and favourable conditions of work The rights to privacy and to family life

Try expressing these rights in your own words. Fundamental Rights Human rights also cover those rights and freedoms necessary for human dignity, creativity and intellectual and spiritual development, namely: The right to education and to access to information Freedoms of religion, opinion, speech, and expression Freedom of association The right to participate in the political process The right to participate in cultural life Try expressing these rights in your own words.

Try expressing these rights in your own words. Fundamental Rights Human rights necessary for liberty and physical security include: Freedom from slavery or servitude The right to security of person (physical integrity) The right to be free from arbitrary arrest or imprisonment, and to a fair trial Freedom from torture and from cruel, inhuman or degrading treatment or punishment (Source: Häusermann, J, Rights and Humanity, A Human Rights Approach to Development, Discussion Paper commissioned by DFID in preparation of the UK Government’s White Paper on International Development 1997.) Try expressing these rights in your own words.

Problems with the UDHR It’s a document which is not enforceable, has no binding power but merely a moral value. It is deliberately politically neutral but that also means that it doesn’t occupy a clearly defined position on the scale of political values. It is imbalanced in its reference to economic, social and cultural rights.

Problems with the UDHR It makes no reference to the counterpart of the rights of man, namely the duties of man This is problematic because how can the State agree to assume obligations towards persons who, for their part, accept no obligation, no duty, in regard to the community and the State? Therefore, the UD as a source of law, has a value no greater than that of custom, albeit international custom.

Strengthening the UDHR The declarations are statements of moral and ethical intent but they are not ethically binding instruments, hence covenants (or conventions) were built into the framework to carry the weight of international law; in 1976, the International Convenants on Civil and Political Rights & Economic, Social and Cultural Rights came into effect; in Nov 1978 the Convention on the Rights of the Child was adopted by the UN General Assembly.

How effective is the UDHR for the protection of the INDIVIDUAL? The individual cannot lodge a complain direct with the UN against the State, but exceptions may be made for cases of genocide and the policy of apartheid The individual is not recognized as a subject of international law – he must exhaust all the national procedures of appeal available before he is afforded the possibility of having recourse to an international organ for the purpose of notifying it that a particular right, which concerns him directly, has been violated. An individual cannot do the same on behalf on another individual.

Of what use is the UDHR then? 3 principles of fundamental important for the protection of HR equality of human beings before the law principle of non-discrimination self-determination (the freedom to choose without external compulsion)

What’s in it for Governments? They are genuinely concerned to improve conditions within their own territories, especially if they are democratically elected. Some have interest in improving conditions in other countries. Some believe that respect for human rights contributes to a more peaceful world. For many, the principal incentive is a cosmetic one: to improve their own image – an even more important reason in the globalised world characterized by interdependence, improved communications and a powerful media.

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