Human Rights are rights that belong to an individual or group of individuals as a consequence of being human. They refer to a wide continuum of values or capabilities thought to enhance human agency and declared to be universal in character, in some sense equally claimed for all human beings.
It is a common observation that human beings everywhere demand the realization of diverse values or capabilities to ensure their individual and collective well-being. It also is a common observation that this demand is often painfully frustrated by social as well as natural forces, resulting in exploitation, oppression, persecution, and other forms of deprivation. Deeply rooted in these twin observations are the beginnings of what today are called “human rights” and the national and international legal processes that are associated with them.
The expression “human rights” is relatively new, having come into everyday parlance only since World War II, the founding of the United Nations in 1945,and the adoption by the UN General Assembly of the Universal Declaration of Human Rights in 1948. It replaced the phrase “natural rights,” which fell into disfavour in part because the concept of natural law (to which it was intimately linked) had become a matter of great controversy; and it replaced as well the later phrase “the rights of Man,” which was not universally understood to include the rights of women.
ORIGINS IN ANCIENT GREECE AND ROME
Most students of human rights trace the origins of the concept to ancient Greece and Rome, where it was closely tied to the doctrines of the Stoics, who held that human conduct should be judged according to, and brought into harmony with, the law of nature. A classic example of this view is given in Sophocles’ play Antigone, in which the title character, upon being reproached by King Creon for defying his command not to bury her slain brother, asserted that she acted in accordance with the immutable laws of the gods.
In part because Stoicism played a key role in its formation and spread, Roman law similarly allowed for the existence of a natural law and with it–pursuant to the jus gentium (“law of nations”)–certain universal rights that extended beyond the rights of citizenship. According to the Roman jurist Ulpian, for example, natural law was that which nature, not the state, assures to all human beings, Roman citizens or not.
It was not until after the middle Ages, however, that natural law became associated with natural rights. In Greco-Roman and medieval times, doctrines of natural law concerned mainly the duties, rather than the rights, of “Man.” Moreover, as evidenced in the writings of Aristotle and St. Thomas Aquinas, these doctrines recognized the legitimacy of slavery and serfdom and, in so doing, excluded perhaps the most important ideas of human rights as they are understood today–freedom (or liberty) and equality.
For the idea of human rights qua natural rights to gain general recognition, therefore, certain basic societal changes were necessary, changes of the sort that took place gradually, beginning with the decline of European feudalism from about the 13th century and continuing through the Renaissance to the Peace of Westphalia (1648). During this period, resistance to religious intolerance and political and economic bondage; the evident failure of rulers to meet their obligations under natural law; and the unprecedented commitment to individual expression and worldly experience that was characteristic of the Renaissance all combined to shift the conception of natural law from duties to rights.
The teachings of Aquinas and Hugo Grotius on the European continent, and the Magna Carta (1215), the Petition of Right of 1628, and the English Bill of Rights (1689) in England, were proof of this change. Each testified to the increasingly popular view that human beings are endowed with certain eternal and inalienable rights that never were renounced when humankind “contracted” to enter the social from the primitive state and never diminished by the claim of the “divine right of kings.”
NATURAL LAW TRANSFORMED INTO NATURAL RIGHTS
The modern conception of natural law as meaning or implying natural rights was elaborated primarily by thinkers of the 17th and 18th centuries. The intellectual–and especially the scientific–achievements of the 17th century (including the materialism of Hobbes, the rationalism of Descartes and Leibniz, the pantheism of Spinoza, and the empiricism of Bacon and Locke) encouraged a belief in natural law and universal order; and during the 18th century, the so-called Age of Enlightenment, a growing confidence in human reason and in the perfectibility of human affairs led to the more comprehensive expression of this belief. Particularly important were the writings of John Locke, arguably the most important natural-law theorist of modern times, and the works of the 18th-century philosophies centred mainly in Paris, including Montesquieu, Voltaire, and Jean-Jacques Rousseau.
Locke argued in detail, mainly in writings associated with the English Revolution of 1688 (the “Glorious Revolution”), that certain rights self-evidently pertain to individuals as human beings (because these rights existed in “the state of nature” before humankind entered civil society); that chief among them are the rights to life, liberty (freedom from arbitrary rule), and property; that, upon entering civil society, humankind surrendered to the state–pursuant to a “social contract”–only the right to enforce these natural rights and not the rights themselves; and that the state’s failure to secure these rights gives rise to a right to responsible, popular revolution. The philosophies, building on Locke and others and embracing many and varied currents of thought with a common supreme faith in reason, vigorously attacked religious and scientific dogmatism, intolerance, censorship, and social and economic restraints. They sought to discover and act upon universally valid principles governing nature, humanity, and society, including the inalienable “rights of Man,” which they treated as a fundamental ethical and social gospel.
Not surprisingly, this liberal intellectual ferment exerted a profound influence in the Western world of the late 18th and early 19th centuries. Together with the Revolution of 1688 in England and the resulting Bill of Rights, it provided the rationale for the wave of revolutionary agitation that swept the West, most notably in North America and France. Thomas Jefferson, who had studied Locke and Montesquieu, gave poetic eloquence to the plain prose of the 17th century in the Declaration of Independence, proclaimed by the 13 American colonies on July 4, 1776: “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.”
Similarly, the marquis de Lafayette, who won the close friendship of George Washington and who shared the hardships of the U.S. War of Independence, imitated the pronouncements of the English and American revolutions in the Declaration of the Rights of Man and of the Citizen of August 26, 1789, proclaiming that “men are born and remain free and equal in rights” and that “the aim of every political association is the preservation of the natural and imprescriptible rights of man.”
In sum, the idea of human rights, though known by another name, played a key role in late 18th- and early 19th-century struggles against political absolutism. It was, indeed, the failure of rulers to respect the principles of freedom and equality that was responsible for this development.
DEFINING HUMAN RIGHTS
To say that there is widespread acceptance of the principle of human rights is not to say that there is complete agreement about the nature and scope of such rights–which is to say, their definition. Among the basic questions that have yet to receive conclusive answers are the following: whether human rights are to be viewed as divine, moral, or legal entitlements; whether they are to be validated by intuition, culture, custom, social contract, principles of distributive justice, or as prerequisites for happiness; whether they are to be understood as irrevocable or partially revocable; and whether they are to be broad or limited in number and content.
THE CONTENT OF HUMAN RIGHTS: THREE “GENERATIONS” OF RIGHTS
Like all normative traditions, the human rights tradition is a product of its time. Therefore, to understand better the debate over the content and legitimate scope of human rights and the priorities claimed among them, it is useful to note the dominant schools of thought and action that have informed the human rights tradition since the beginning of modern times.
Particularly helpful in this regard is the notion of three “generations” of human rights advanced by the French jurist Karel Vasak. Inspired by the three themes of the French Revolution, they are: the first generation of civil and political rights (liberté); the second generation of economic, social, and cultural rights (égalité); and the third generation of solidarity rights (fraternité). Vasak’s model is, of course, a simplified expression of an extremely complex historical record, and it is not intended to suggest a linear process in which each generation gives birth to the next and then dies away. Nor is it to imply that one generation is more important than another. The three generations are understood to be cumulative, overlapping, and, it is important to note, interdependent and interpenetrating.
v Liberté: Civil and political rights
The first generation of civil and political rights derives primarily from the 17th- and 18th-century reformist theories noted above (i.e., those associated with the English, American, and French revolutions). Infused with the political philosophy of liberal individualism and the related economic and social doctrine of laissez-faire, the first generation conceives of human rights more in negative terms (“freedoms from”) than positive ones (“rights to”); it favours the abstention over the intervention of government in the quest for human dignity.
Belonging to this first generation, thus, are rights such as those set forth in Articles 2-21 of the Universal Declaration of Human Rights, including freedom from gender, racial, and equivalent forms of discrimination; the right to life, liberty, and security of the person; freedom from slavery or involuntary servitude; freedom from torture and from cruel, inhuman, or degrading treatment or punishment; freedom from arbitrary arrest, detention, or exile; the right to a fair and public trial; freedom from interference in privacy and correspondence; freedom of movement and residence; the right to asylum from persecution; freedom of thought, conscience, and religion; freedom of opinion and expression; freedom of peaceful assembly and association; and the right to participate in government, directly or through free elections. Also included are the right to own property and the right not to be deprived of it arbitrarily–rights that were fundamental to the interests fought for in the American and French revolutions and to the rise of capitalism.
Yet it would be wrong to assert that these and other first-generation rights correspond completely to the idea of “negative” as opposed to “positive” rights. The right to security of the person, to a fair and public trial, to asylum from persecution, and to free elections, for example, manifestly cannot be assured without some affirmative government action. What is constant in this first-generation conception is the notion of liberty, a shield that safeguards the individual–alone and in association with others–against the abuse of political authority. This is the core value. Featured in the constitution of almost every country in the world and dominating the majority of international declarations and covenants adopted since World War II, this essentially Western liberal conception of human rights is sometimes romanticized as a triumph of the individualism of Thomas Hobbes and John Locke over Hegelian statism.
v Égalité: Economic, social, and cultural rights
The second generation of economic, social, and cultural rights originated primarily in the socialist tradition, which was foreshadowed among adherents of the Saint-Simonian movement of early 19th-century France and variously promoted by revolutionary struggles and welfare movements that have taken place since. In large part, it is a response to the abuses of capitalist development and its underlying and essentially uncritical conception of individual liberty, which tolerated, and even legitimized, the exploitation of working classes and colonial peoples.
Historically, it is a counterpoint to the first generation of civil and political rights, conceiving of human rights more in positive terms (“rights to”) than in negative ones (“freedoms from”) and requiring more the intervention than the abstention of the state for the purpose of assuring the equitable production and distribution of the values or capabilities involved. Illustrative are some of the rights set forth in Articles 22-27 of the Universal Declaration of Human Rights, such as the right to social security; the right to work and to protection against unemployment; the right to rest and leisure, including periodic holidays with pay; the right to a standard of living adequate for the health and well-being of self and family; the right to education; and the right to the protection of one’s scientific, literary, and artistic production.
But in the same way that all the rights embraced by the first generation of civil and political rights cannot properly be designated “negative rights,” so all the rights embraced by the second generation of economic, social, and cultural rights cannot properly be labelled “positive rights.” For example, the right to free choice of employment, the right to form and to join trade unions, and the right to participate freely in the cultural life of the community (Articles 23 and 27) do not inherently require affirmative state action to ensure their enjoyment. Nevertheless, most of the second-generation rights do necessitate state intervention because they subsume demands more for material than for intangible goods according to some criterion of distributive justice. Second-generation rights are, fundamentally, claims to social equality.
However, partly because of the comparatively late arrival of socialist-communist and compatible “Third World” influence in international affairs, the internationalization of these rights has been relatively slow in coming, and with free-market capitalism in ascendancy under the banner of globalization at the turn of the 21st century, it is not likely that these rights will come of age any time soon. On the other hand, as the social inequities created by unregulated national and transnational capitalism become more and more evident over time and are not accounted for by explanations based on gender or race, it is probable that the demand for second-generation rights will grow and mature, and in some instances even lead to violence. This tendency is apparent already in the evolving European Union and in wider efforts to regulate intergovernmental financial institutions and transnational corporations to protect the public interest.
v Fraternité: Solidarity rights
Finally, the third generation of solidarity rights, while drawing upon and reconceptualizing the demands associated with the first two generations of rights, is best understood as a product of both the rise and the decline of the nation-state in the last half of the 20th century. Foreshadowed in Article 28 of the Universal Declaration of Human Rights, which proclaims that “everyone is entitled to a social and international order in which the rights set forth in this declaration can be fully realized,” this generation appears so far to embrace six claimed rights.
Three of these rights reflect the emergence of Third World nationalism and its “revolution of rising expectations” (i.e., its demand for a global redistribution of power, wealth, and other important values or capabilities): the right to political, economic, social, and cultural self-determination; the right to economic and social development; and the right to participate in and benefit from “the common heritage of mankind” (shared Earth and space resources, scientific, technical, and other information and progress, and cultural traditions, sites, and monuments). The other three third-generation rights–the right to peace, the right to a healthy and sustainable environment, and the right to humanitarian disaster relief–suggest the impotence or inefficiency of the nation-state in certain critical respects.
All six of these rights tend to be posed as collective rights, requiring the concerted efforts of all social forces, to a substantial degree on a planetary scale. However, each of them also manifests an individual dimension. For example, while it may be said to be the collective right of all countries and peoples (especially developing countries and non-self-governing peoples) to secure a “new international economic order” that would eliminate obstacles to their economic and social development, so also may it be said to be the individual right of every person to benefit from a developmental policy that is based on the satisfaction of material and nonmaterial human needs. It is important to note too that the majority of these solidarity rights are more aspirational than justiciable in character and that their status as international human rights norms remains ambiguous.
Thus, at various stages of modern history, the content of human rights has been broadly defined not with any expectation that the rights associated with one generation would or should become outdated upon the ascendancy of another, but expansively or supplementally. The history of the content of human rights reflects evolving perceptions of which values or capabilities stand, at different times, most in need of responsible attention and, simultaneously, humankind’s recurring demands for continuity and stability.
INTERNATIONAL HUMAN RIGHTS: PRESCRIPTION AND ENFORCEMENT
· Developments before World War II
Ever since ancient times, but especially since the emergence of the modern state system, the Age of Discovery, and the accompanying spread of industrialization and European culture throughout the world, there has developed, for economic and other reasons, a unique set of customs and conventions regarding the humane treatment of foreigners. This evolving International Law of State Responsibility for Injuries to Aliens, as these customs and conventions came to be called, represents the beginning of active concern–however much they served the interests of colonial expansion–for human rights on the international plane. The founding fathers of international law–particularly Francisco de Vitoria, Grotius, and Emmerich de Vattel–were quick to observe that all persons, outlander as well as other, were entitled to certain natural rights, and they emphasized, consequently, the importance of according aliens fair treatment.
With the exception of occasional treaties to secure the protection of Christian denominations, it was not until the start of the 19th century, however, that active international concern for the rights of nationals began to make itself felt. Then, in the century and a half before World War II, several noteworthy efforts to encourage respect for nationals by international means began to shape what today is called the International Law of Human Rights (which for historical but no theoretically convincing reasons was treated separately from the International Law of State Responsibility for Injuries to Aliens).
Throughout the 19th and early 20th centuries, numerous military operations and diplomatic representations, not all of them with the purest of motives but performed nonetheless in the name of “humanitarian intervention” (a customary international law doctrine), undertook to protect oppressed and persecuted minorities in the Ottoman Empire, Syria, Crete, various Balkan countries, Romania, and Russia. Paralleling these actions, first at the Congress of Vienna (1814-15) and later between the two world wars, a series of treaties and international declarations sought the protection of certain racial, religious, and linguistic minorities in central and Eastern Europe and the Middle East. During the same period, the movement to combat and suppress slavery and the slave trade found expression in treaties sooner or later involving the major commercial powers, beginning with the Treaty of Paris (1814) and culminating in the International Slavery Convention (1926).
In addition, beginning in the late 19th century and continuing well beyond World War II, the community of nations, inspired largely by persons associated with what is now the International Committee of the Red Cross, concluded a series of multilateral declarations and agreements designed to temper the conduct of hostilities, protect the victims of war, and otherwise elaborate the humanitarian law of war (now commonly referred to as International Humanitarian Law).
At about the same time, first with two multilateral labour conventions concluded in 1906 and subsequently at the initiative of the International Labour Organisation (ILO; established in 1919), a reformist-minded international community embarked upon a variety of collaborative measures directed at the promotion of human rights. These measures addressed not only concerns traditionally associated with labour law and labour relations (e.g., industrial health and safety, hours of work, and annual paid holidays), but also–mainly after World War II–such core human rights concerns as forced labour, discrimination in employment and occupation, freedom of association for collective bargaining, and equal pay for equal work.
Finally, during the interwar period, the covenant establishing the League of Nations (1919)–though not formally recognizing “the rights of Man” and failing to lay down a principle of racial nondiscrimination as requested by Japan (owing mainly to the resistance of Great Britain and the United States)–nevertheless committed its members to several human rights goals: fair and humane working conditions, the execution of agreements regarding trafficking in women and children, the prevention and control of disease in matters of international concern, and the just treatment of indigenous colonial peoples. Also, the victorious powers–that as “mandatory” were entrusted by the League with the tutelage of colonies formerly governed by Germany and Turkey–accepted responsibility for the well-being and development of the inhabitants of those territories as “a sacred trust of civilization.” This arrangement was later carried over into the trusteeship system of the United Nations.
As important as these efforts were, however, it was not until after the war–and the Nazi atrocities accompanying it–that active concern for human rights truly came of age internationally. In the proceedings of the International Military Tribunal at Nürnberg in 1945-46 (the Nürnberg trials), German high officials were tried not only for “crimes against peace” and “war crimes,” but also for “crimes against humanity” committed against civilian populations, even if the crimes were in accordance with the laws of the country in which they were perpetrated. Although the tribunal, whose establishment and rulings subsequently were endorsed by the UN General Assembly, applied a cautious approach to allegations of crimes against humanity, it nonetheless made the treatment by a state of its own citizens the subject of international criminal process.
The ad hoc international criminal tribunals established in 1993-94 for the prosecution of serious violations of International Humanitarian Law in the former Yugoslavia and Rwanda were its first heirs on the international plane. Both courts were empowered to impose sentences of life imprisonment (though not the death penalty), and both focused their efforts, with some success, on political leaders who had authorized human rights abuses. Most conspicuous was the arrest and detention in June 2001 of former Yugoslav president Slobodan Milosevic by the International Criminal Tribunal for Yugoslavia, representing the first time a former head of state has been placed in the physical custody of an international judicial authority. The tribunal charged him with war crimes and crimes against humanity allegedly committed by Serbian forces in Kosovo in 1999 and subsequently with the crime of genocide allegedly committed by Serbian forces during the war in Bosnia and Herzegovina in 1992-95.
Also heir to the Nürnberg tribunal is the International Criminal Court, authorized by the adoption by 160 countries of the Rome Statute of the International Criminal Court in July 1998. The statute creates a permanent international criminal court whose jurisdiction includes crimes against humanity, crimes of genocide, war crimes, and crimes of “aggression” (pending the adoption of an acceptable definition of that term). However, some countries resisted the creation of the court, which depends on the ratification of the statute by at least 60 signatory states,, notably the United States, on the ground that it would unduly infringe upon their national sovereignty. The long-term future of the court is therefore uncertain.
HUMAN RIGHTS IN THE UNITED NATIONS
The Charter of the United Nations (1945) begins by reaffirming a “faith in fundamental human rights, in the dignity and worth of the human person, in the equal rights of men and women and of nations large and small.” It states that the purposes of the UN are, among other things:
To develop friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples … [and] to achieve international co-operation … in promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language, or religion.
In addition, in two key articles all members “pledge themselves to take joint and separate action in co-operation with the Organization” for the achievement of these and related purposes. It must be noted, however, that a proposal to ensure the protection as well as the promotion of human rights was explicitly rejected at the Charter-drafting San Francisco conference establishing the UN. Also, the Charter expressly provides that nothing in it “shall authorize the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any state,” except upon a Security Council finding of a “threat to the peace, breach of the peace, or act of aggression.” Furthermore, though typical of major constitutive instruments, the Charter is conspicuously given to generality and vagueness in its human rights clauses, among others.
Thus, not surprisingly, the reconciliation of the Charter’s human rights provisions with the history of its drafting and its “domestic jurisdiction” clause has given rise to legal and political controversy. Some authorities have argued that, in becoming parties to the Charter, states accept no more than a nebulous promotional obligation toward human rights and that, in any event, the UN has no standing to insist on human rights safeguards in member states. Others have insisted that the Charter’s human rights provisions, being part of a legally binding treaty, clearly involve some element of legal obligation; that the “pledge” made by states upon becoming party to the Charter consequently represents more than a moral statement; and that the domestic jurisdiction clause does not apply because human rights no longer can be considered a matter “essentially within the domestic jurisdiction” of states.
When all is said and done, however, it is clear from the actual practice of the UN that the problem of resolving these opposing contentions has proved less formidable than the statements of governments and the opinions of scholars would suggest. Neither the Charter’s drafting history nor its domestic jurisdiction clause–nor, indeed, its generality and vagueness in respect of human rights–has prevented the UN from investigating, discussing, and evaluating specific human rights situations. Nor have they prevented it from taking concrete action in relation to them–at least not in the case of “a consistent pattern of gross violations,” as in the Security Council’s imposition of a mandatory arms embargo against South Africa in 1977 and its authorization of the use of military force to end human rights abuses in Somalia and Haiti in the early 1990s. Of course, governments usually are protective of their sovereignty, or domestic jurisdiction.
Also, the UN organs responsible for the promotion and protection of human rights suffer from most of the same disabilities that afflict the UN as a whole, in particular the absence of supranational authority, the presence of divisive power politics, and the imposition of crippling financial constraints by member states (most notably the United States). Hence, it cannot be expected that UN actions in defence of human rights will be, normally, either swift or categorically effective.
Indeed, many serious UN efforts at human rights implementation have been deliberately thwarted by the major powers. In 1999, for example, opposition by China and Russia prevented the Security Council from agreeing on forceful measures to end the persecution by Serbia of ethnic Albanians in the province of Kosovo, prompting the United States and other members of the North Atlantic Treaty Organization (NATO) to take matters into their own hands through a massive bombing campaign against Serbian targets. Nevertheless, assuming some political will, the legal obstacles to UN enforcement of human rights are not insurmountable.
Primary responsibility for the promotion and protection of human rights under the UN Charter rests in the General Assembly and, under its authority, in the Economic and Social Council (ECOSOC), the Commission on Human Rights, and the UN High Commissioner for Human Rights (UNHCHR). The UN Commission on Human Rights, an intergovernmental subsidiary body of ECOSOC that met for the first time in 1947, serves as the UN’s central policy organ in the human rights field. The UNHCHR, a post created by the General Assembly in 1993, is the official principally responsible for implementing and coordinating UN human rights programs and projects, including overall supervision of the UN’s Geneva-based Centre for Human Rights, a bureau of the UN Secretariat.
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