Unit - 1 - Introduction to Human Rights

8/10/2019 Unit - 1 - Introduction to Human Rights

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Human Rights

Human rights refer to the "basic rights and freedoms to which all

humans are entitled .

It is t he inherent rights o f a man.

"Inalienable fundamental rights to which a person is inherently

entitled simply because she or h e is a h uman being.

Human rights include civil and political rights, such as the right to

life and liberty, freedom of exp ression, an d equality before the law;

and social, cu ltural an d economic rights, including the right to

participate in culture, the right t o food, the right t o work, and the

right to education.

Denitions of Human Rights

According to Jeremy Bentham, human rights refer to the basic

rights an d freedoms t hat all humans sh ould have the right to life and

liberty, freedom of thought and expression, equality b efore t he law.

Admi Hedly points ou t that, Human rights are as si mply those, most

political claims which by contemporary consensus, every human

being has deemed to have upon his society and government.

In the words of Abraham Lincoin , nation conceived in liberty, and

dedicated to the proposition that all man are cr eated equal

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Characteristics of Human Rights

Human Rights a re u niversal legal guarantees p rotecting individuals a nd

groups against actions which interfere with fundamental freedoms and

human dignity. Some of the most important characteristics of human

rights a re th at they are:

Human Rights are Guaranteed by international standards and the

state

Human Rights are l egally protected

Human Rights are focus on the dignity of the human being

Human Rights force states an d state actors

Human Rights cannot be ignored or taken away

Human Rights ar e Interdependent and interrelated Human Rights are universal

Human Rights are available not only to a few person but to all

Human Rights are not rigid and have a t endency to grow according

to the circumstances

Human Rights are not absolute to reasonable restrictions in the

larger i nterest of the s ociety

A state does not create rights, it merely recognizes .

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Human Rights Principles

Human rights are universal and inalienable; indivisible;

interdependent and interrelated.

They are universal because everyone is born with and possesses

the sa me ri ghts, regardless o f where t hey live, their gen der or r ace,

or t heir r eligious, cultural or et hnic b ackground.

Inalienable because p eoples ri ghts ca n never be t aken away.

Indivisible and interdependent b ecause all rights political, civil,

social, cultural and economic a re equal in importance an d none

can be fully en joyed without the others.

They apply to all equally, and all have the right to partici

decisions that affect their l ives.

They are upheld by the rule of law and strengthened through

legitimate claims for duty-bearers to be accountable to

international standards.

1. Universality and Inalienability: Human rights are universal and

inalienable . All people everywhere in the world are en titled to them. The

universality of human rights is en compassed in the words of Article 1 of

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the Universal Declaration of Human Rights : All human beings are born

free a nd equal in dignity and rights.

2. I ndivisibility: Human rights are indivisible . Whether t hey relate to

civil, cu ltural, econ omic, p olitical or social issues, h uman rights are

inherent to the dignity of every human person. Consequently, all human

rights have equal status, and cannot be positioned in a hierarchical

order. Denial of one right invariably impedes enjoyment of other ri ghts.

Thus, the right of everyone to an adequate standard of

compromised at t he expense of other r ights, such as the right to health

or t he ri ght to education.Interdependence and Interrelatedness: Human rights are interdependent

and interrelated . Each one contributes to the realization of a persons

human dignity through the satisfaction of his or her developmental,

physical, psychological and spiritual needs. The fullment of one right

often depends, wholly or in part, upon the fullment of ot hers. For

instance, fullment of the right to health may depend, in certain

circumstances, on fullment of the right to development, to education or

to information.

3. Equality and Non-discrimination: All individuals are equal as

human beings and by virtue of the inherent dignity of each human

person. No one, therefore, should suffer discrimination on the basis of

race, colour, ethnicity, gender, age, language, sexual orientation, religion,

political or other opinion, national, social or geographical origin,

disability, property, birth or oth er st atus a s est ablished by human rights

standards.

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4. Participation and Inclusion: All people have the right to participate

in and access i nformation relating to the decision-making processes t hat

affect their lives a nd well-being. Rights-based approaches require a high

degree o f participation by communities, civil society, minorities, women,

young people, indigenous peoples and other identied groups

5. Accountability and Rule of Law: States a nd other du ty-bearers a re

answerable for t he observance of human rights. In this r egard, they have

to comply with the legal norms a nd standards en shrined in international

human rights instruments. Where they fail to do so, aggrieved rights-

holders are entitled to institute proceedings for appropriate redress before a competent court or other adjudicator in accordance with

rules and procedures provided by law. Individuals, the media, civil

society and the international community play important roles in holding

governments a ccountable for t heir obl igation to uphold human rights.

Theories of Human Rights The Theory of Natural Rights

One of the oldest theory h aving origins from the writings of Greek

and Roman

Natural rights a re frequently described as God-given, and as such

provide a protection against governments tendency to become

authoritarian. Natural r ights have been seen as gifts of God, as correlative to

duties imposed on man by God, and as concomitants of human

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nature or reason. We might distinguish: (1) natural r ights; (2)

moral rights; and (3) legal rights.

Human beings are granted upon creation certain rights that they

are guaranteed regardless of w hat t heir government is, and they

are ( always) life a nd liberty a nd usually p roperty a s w ell.

Historical Theory

The Historical theory of Human Rights deals with the creation

and development of the theories of human rights in different

periods.

The theory also speaks about the protection human rights in

Islam and Christian religions in ancient and middle a ges p eriods.

According to the theory, human rights is a manifestation of

social history and it was long delayed in the cultural history

of humanity for perceiving the social values of human rights.

Legal Theory

Legal rights are those bestowed onto a person by the law of a

particular political an d legal syst em, and therefore relative to

specic cultures an d governments.

This theory deals with matters which are vital to life

It is more i dealistic

Social Welfare Theory

The Social Welfare Theory holds that rights are conditions of socia

welfare.

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They are the creation of society, and law, customs, traditions and

the natural r ights should all yield to what i s socially useful or

socially desirable.

The Utilitarians, Bentham and Mill, are the real exponents of the

Social Welfare T heory of Rights. They set up the principle of the

greatest happiness of the greatest number and made it the

criterion of u tility.

Idealist Theory

The Idealistic Theory of Rights is also known as the Personality

Theory.

According to this theory, rights are the external conditions

essential to m ans internal and real development.

The Idealistic Theory of Rights appeals to the moral and

democratic mind of man, as it relates rights to morality rather

than legality.

Secondly, it does not subordinate the self-development of man to

the social whole. Both act and react upon each other.

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Classication of Human Rights

Human rights can be classied in a number of different ways. One of the

most w idely used classications distinguishes two general cat egories:

They are (1) and (2) Legal Rights. The lega

into Civil and Political Rights.

1. Moral Rights

Natural r ights, al so called moral r ights or unchallengeable rights, ar e

rights which are not dependent upon the laws, customs, or beliefs or a

particular soci ety or government. These ri ghts are b ased on the ethical

and moral section of the society and do not possess any legal backing.

This implies that they cannot be enforced

2. Legal Rights

These rights are recognized by the state

law of courts. Legal rights or S tatutory Rights are ri ghts conveyed by a

HumanRights

MoralRights

LegalRights

Civil RightsPoliticalRights

EconomicRights

SocialRights

CulturalRights

FundamentalRights

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particular government, codied into legal statutes by some form of

legislature, and as such are contingent u pon local laws, customs, or

beliefs. Legal rights are cul

can be further d ivided into Civil and Political rights.

Civil and Political Rights

Civil and political rights are a class of rights en suring things su ch as

the protection of peoples' physical integrity; procedural fairness in law;

protection from discrimination based on gender, religion, race, sexual

orientation, etc; individual freedom of belief, speech, association, and the

press ; and political participation. Civil and political rights a re i ncluded in

the Universal Declaration of Human Rights and elaborated upon in the

International Covenant on Civil and Political Rights.

2. (A). Civil Rights

It p rovides conditions of a civilized life and facilitates the all round

development of an individuals p ersonality. Civil rights a re con sidered to

be unquestionable and enforced by the law; deserved by al

all circumstances, especi ally without regard to race, cr eed, color or

gender.

2. (B) Political Rights

The political rights are the privileges of cithen enable t

participate in the political affairs of the state. M ostly political rights are

available u nder democratic system of government.

Economic, Social and Cultural Rights

Economic, social and cultural rights a re socio-economic human rights;

contrast w ith civil an d political ri ghts. E conomic, soci al a nd cultural

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rights are included in the Universal Declaration of Human Rights and

elaborated upon in the International Covenant on Economic, Social and

Cultural Rights. Examples of such rights include the right t o food, the

right to housing a nd the ri ght to health.

Fundamental Rights

Fundamental Rights governs the relationship between the state and the

individuals. These Fundamental Rights are covered in Part I II of the

Indian Constitution, in which Article 12 to 35 of the Indian Constitution

covers the Fundamental Rights of the citizen of the country. All these

Fundamental Rights indicate that all the citizens are equally treated by

the nation irrespective of caste, sex a nd creed. Some of the fundamental

rights a re Right to Equality, Right to Freedom, Right against exploitation,

Right to Freedom of Religion.

The Universal Declaration of Human Rights ( UDHR )

What is UDHR? The Universal Declaration of Human Rights (Universal Declaration)

is an international document that states the basic rights and

fundamental freedoms to which all human beings are entitled.

The Universal Declaration is not a treaty, so it does not directl

create legal obligations for co untries.

It is a n expression of the fundamental values which are sh ared byall members of the international community.

And it has had a profound inuence on the development of

international human rights law and it has become binding as a

part of customary international law.

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The Universal Declaration has given rise to a wide range of other

international agreements which are legally binding on the

countries t hat ratify them.

The Universal Declaration was adopted by the General Assembly of

the United Nations on 10 December 1948. Motivated by the

experiences o f the p receding world wars, the Universal Declaration

was the rst time that countries agreed on a comprehensive

statement of inalienable h uman rights.

Importance of UDHR

The Universal Declaration creates a standard of human rights

respect that all the world's n ations m ust uphold.

The Declaration broadly denes basic human rights, prohibiting

governments from resorting to certain actions in their efforts to

coerce o r con trol people.

It also presents positive steps that governments should take to

advance p eople's well-being and to ensure that al l people are able

to exercise their ri ghts.

The Declaration prepared the way for two legally binding treaties,

the International Covenant on Civil and Political Rights and the

International Covenant on Economic, Social and Cultural Rights.

Together, the Declaration and the Covenants based on it constitute

the "I nternational Bill of Rights."

The Universal Declaration continues to serve as a model for

national constitutions, l aws, an d policies. Provi sions of som e 90

national constitutions drafted since 1948 can be traced to the

Declaration.

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In addition, the principles of the Declaration are increasingly

evident in governments' foreign policy decisions, including

decisions on aid packages directed abroad. Violating human rights

can prove costly to governments.

Text of the DeclarationArticle 1 Equality of Human BeingArticle 2 No Discrimination on any groun sArticle ! Right to life" li#erty an securityArticle $ No one shall #e in slavery or servitu e

Article % No one shall #e su#&ecte to inhuman or egra ing treatment or'unishmentArticle ( Everyone has the right to recognitionArticle ) All are equal #efore the la*Article + Everyone has the right to an effective reme y

Article , No one shall #e su#&ecte to ar#itrary arrest" etention or exile-Article 1. Everyone is entitle in full equality to a fair an 'u#lic hearingArticle 11 Right to #e 'resume innocent until 'rove guiltyArticle 12 Right to 'rivacy" family" homeArticle 1! Right to free om of movementArticle 1$ Right to see/ an to en&oy in other countriesArticle 1% Right to a nationality-Article 1( Rights to marriageArticle 1) Right to o*n 'ro'ertyArticle 1+ Right to free om of thought" conscience an religionArticle 1, Right to free om of o'inion an ex'ressionArticle 2. Right to free om of 'eaceful assem#ly an associationArticle 21 Right to ta/e 'art in the government of his countryArticle 22 Right to social securityArticle 2! Right to *or/" to free choice of em'loyment

Article 2$ Right to rest an leisure" inclu ing reasona#le limitation of *or/inghours an 'erio ic holi ays *ith 'ayArticle 2% Right to a stan ar of livingArticle 2( Right to e ucationArticle 2) Right to freely 'artici'ate in the cultural life of the communityArticle 2+ Rights an free oms to reali0e this Declaration

Article 2, Duties to the community in *hich alone the free an fullevelo'ment of his 'ersonality is 'ossi#le-Article !. romise to enforce this eclaration

ignificance an 3egal Effect of the Universal Declaration of HumanRights

Signicance

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The Guinness Book of Records describes the UDHR as the "Most

Translated Document" in the world.

In the preamble, governments commit themselves an d their people

to progressive measures which secure the universal and effective

recognition and observance of the human rights set out in the

Declaration.

It has also served as the foundation for a growing number of

national laws, international laws, and treaties, as w ell as regi onal,

national, and sub-national institutions protecting and promoting

human rights.

Legal effect The Declaration was explicitly adopted for the purpose of dening

the meaning of the words "fundamental freedoms" and "human

rights" appearing in the United Nations Charter, which is binding

on all member s tates. For t his re ason the Universal Declaration is

a fundamental constitutive document of the United Nations.

Many international lawyers believe that the Declaration forms part

of customary international law and is a powerful tool in applying

diplomatic and moral pressure to governments t hat violate any of

its arti cles.

The 1968 United Nations International Conference on HumanRights a dvised that i t "constitutes a n obligation for t he m embers o f

the international community" to a ll persons.

The declaration has served as the foundation for two binding UN

human rights covenants, the International Covenant on Civil

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and Political Rights , and the International Covenant on

Economic, Social and Cultural Rights and the principles of the

Declaration are elaborated in international treaties such as the

International Convention on the E limination of All Forms o f Racial

Discrimination, the International Convention on the Elimination of

Discrimination Against Women, the United Nations Convention on

the Rights of the Child, the United Nations Convention Against

Torture and many more.

The Declaration continues to be widely cited by governments,

academics, advocates and constitutional courts and individual

human beings who appeal to its principles for the protection oftheir recognized human rights.

Criticism on the Universal Declaration of Human Rights

1. Muslim countries

In 1948, Saudi Arabia did not sign the declaration, arguing it

violated Islamic law.

In 1982, the Iranian representative to the United Nations, said that

the UDHR was "a secular understanding of the Judeo-Christian

tradition", which could not be implemented by Muslims withouttrespassing th e Islamic law.

2. The Right to Refuse to Kill

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Groups such as Amnesty International and War Resisters

International have advocated for "The Right to Refuse to Kill" to be

added to the UDHR.

War Resisters International has stated that the right to

conscientious objection to military service is primarily derived

from, but n ot yet explicit in, Article 18 the UDHR: the right to

freedom of thought, conscience a nd religion.

International Bill of Human Rights

The International Bill of Human Rights is an infal e

international treaties and one General Assembly resolution established by the United Nations. It consists of

Rights (adopted in 1948), the International Covenant on Civil and

Political Rights (1966) with its two Optional Protocols and the

International Covenant on Economic, Social and Cultural Rights (1966).

The two covenants entered into force in 1976,

countries h ad ratied them.

International Covenant (Agreement) on Economic, Socialand Cultural Rights

The International Covenant on Economic, Social and Cultural

Rights (ICESCR) is a multilateral agreement adopted by the United

Nations General Assembly on December 16, 1966, and in force from

January 3, 1976.

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The International Covenant on Economic, Social and Cultural Rights

entered into force on 3 January 1 976.

It commits states parties to promote and protect a wide range of

economic, social and cultural rights, including rights rel ating to work

in just and favourable conditions, to social protection, to an adequate

standard of living, to the h ighest attainable st andards o f physical and

mental health, to education and to enjoyment of t he benets of

cultural freedom and scientic progress.

It o bliges states parties to respect a nd ensure that all individuals

subject t o their jurisdiction enjoy all the rights included in theICESCR, without discrimination.

Important Aspects of the Covenant

This covenant describes the basic economic, social

individuals a nd nations, including th e ri ght to:

Self-determination

Wages sufficient to support a minimum standard of living

Equal pay for equal work

Equal opportunity for advancement

Form trade unions

Strike

Paid or otherwise com pensated maternity leave

Free p rimary ed ucation, and accessible ed ucation at all levels Copyright, patent, and trademark protection for intellectual

property

In addition, this c onvention forbids e xploitation of children, and requires

all nations to cooperate to end world hunger. Each nation which has

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o The First Optional Protocol creates an individual

complaints mechanism whereby individuals in member

States can submit complaints, known as communications, to

be reviewed by the Human Rights Committee.

o Its ru lings u nder t he rst optional protocol have created the

most complex jurisprudence in the UN international human

rights law system.

o The Second Optional Protocol abolishes t he death penalty.

Classication of International Covenant on Civil andPolitical Rights

The Covenant is divided into six parts a

I. reaffirms t he r ight of self-determination

II. formulates countries' general obligations, mainly to put the

Covenant into effect as law, to give victims effective remedies a nd

to guarantee gender equality; it a lso restricts the possibility of

verbal or written abuse

III. spells o ut the cl assical civil and political rights, including

the right t o life the p rohibition of torture

the ri ght to liberty and security of person

the right to freedom of movement

the ri ght to a fair h earing

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the ri ght to privacy

the right to freedom of religion, expression, an d peaceful

assembly

the right to family life

the ri ghts o f children to special protection the ri ght to participate in the co nduct of public affairs

the over-arching right to equal treatment, and

the special rights of members of ethnic, religious and

linguistic minorities

IV. regulates the election of members of the Human Rights Committee,

the State reporting procedure and the inter-State complaintsmechanism

V. says that nothing in the Covenant should be understood as

infringing on the inherent right of all peoples t o enjoy and fully u se

their n atural resources

VI. Provides that the Covenant shall extend to all parts of federal

States and sets out the amendment procedure.

Documents

Unit - 1 - Introduction to Human Rights