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WHAT ARE HUMAN RIGHTS?
Human rights are entitlements that every human being has by virtue of his or her human
dignity. The...
have rights even when the laws of their countries do not recognise them, or when they
violate them. For instance, when sla...
 So in as far as the purpose for the protection of human rights remains upholding human
dignity, then human rights are in...
judicial machinery and the establishment of laws aimed at protecting a certain right (e.g. the
right to life). But legisla...
 Political Rights (right to vote; equal access to public service; freedom to form a political
party; right to petition, e...




Right to marry and found a family
Prohibition of retroactive criminal laws
Prohibition of propaganda for war and of...
The obligation to protect requires States to protect individuals against abuses by non-State
actors.
3. Obligation to fulf...
adequate food and the capacity of vulnerable groups to feed themselves.
 It is, however, important to realize that the St...
 In times of war, rioting, natural disasters or other public emergencies that pose a serious
threat to the life of a nati...
all people. It is a vision for human dignity that goes beyond political boundaries and authority,
committing governments t...
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What are human rights

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What are human rights

  1. 1. WHAT ARE HUMAN RIGHTS? Human rights are entitlements that every human being has by virtue of his or her human dignity. They belong to any individual as a consequence of being human, independently of acts of law.  The focus of human rights is on the life and dignity of human beings. A person’s dignity is violated when they are subjected to torture, forced to live in slavery or poverty, i.e., without a minimum of food, clothing and housing.  The expression ‘human rights’ is relatively new, having come into everyday use only after the Second World War and the founding of the United Nations in 1945. 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. BASIC HUMAN RIGHTS PRINCIPLES (CHARACTERISTICS)  Human rights have certain characteristics that set them apart from other references to “rights”. 1. Human rights are ‘inherent and ‘inalienable’  Human rights and fundamental freedoms are regarded as ‘inherent’ because they are the birthright of all human beings. We are born with them. Human rights flow from human nature. VIENNA DECLARATION AND PROGRAMME OF ACTION (1993) “Human rights and fundamental freedoms are the birthright of all human beings; their protection and promotion is the first responsibility of governments.”  Thus, if human rights are the birthright of all human beings then it is correct to say that human rights exist even independently of the law. The law does not create the rights and freedoms that we have as human beings. Instead, the law recognises the existence of human rights and facilitates their enforcement through the creation of procedures and institutions. Human rights are not given, bought, earned or inherited. They belong to people simply because they are human. It means that a person does not have to do anything to prove that he or she is entitled to human rights. The only qualification needed is to be a human being.  Human rights are also regarded as ‘inalienable’ in so far as no person can be divested or deprived of his or her human rights, save under clearly defined legal circumstances. For instance, a person’s right to liberty may be restricted if he or she is found guilty of a crime by a court of law. It is also said that nobody can renounce these rights by himself. People still 1
  2. 2. have rights even when the laws of their countries do not recognise them, or when they violate them. For instance, when slavery is practised, slaves still have rights as human beings. A slave does not cease to be human by the fact of enslavement. Even though slave owners treat slaves like pieces of property or animals, in truth they are not property or animals but full human beings. They are people who are held against their will by evil minded people with intent of exploiting their labour. 2. Human rights are ‘universal’  Human rights are universal because they are based on every human being’s dignity, irrespective of race, sex, religion, ethnicity, political or other opinion, national or social origin. Human rights are universal because they apply to every human being in the world. Human beings everywhere are the same because human nature is the same everywhere. VIENNA DECLARATION AND PROGRAMME OF ACTION (1993) Section I Paragraph 1 The World Conference on Human Rights reaffirms the solemn commitment of all States to fulfill their obligations to promote universal respect for, and observance and protection of, all human rights and fundamental freedoms for all in accordance with the Charter of the United Nations, other instruments relating to human rights, and international law. The universal nature of these rights and freedoms is beyond question.  It has been argued, however, that regional or national peculiarities may be considered in the implementation of human rights standards. It is true that the world has in its various regions different cultures, traditions, religions and beliefs. People have got different ways of life depending on where they come from.  The position taken here is that human rights are not necessarily in conflict with the cultures or ways of life of people. In fact the International Covenant on Economic, Social and Cultural Rights protects cultural rights in Article 15. The problem comes when people want to use the excuse of culture to deny the enjoyment of individual rights and freedoms. For example, although some people regard female genital mutilation (female circumcision) as part of their tradition, the fact is that it has been proven to be harmful and a form of torture on the young girls or women who undergo this practice.  The African Charter on Human and Peoples’ Rights, whose adoption took into account the African peoples’ “virtues of their historical tradition and the values of African civilisation which should inspire and characterise their reflection on the concept of human and peoples’ rights”, also recognises that “fundamental human rights stem from the attributes of human beings, which justifies their national and international protection...” It is only the positive aspects of our traditions and culture that we must promote and not practices that violate human life and dignity. 2
  3. 3.  So in as far as the purpose for the protection of human rights remains upholding human dignity, then human rights are in that regard universal because human dignity is a universal value. 3. Human rights are indivisible, interdependent and interrelated  In addition to being universal, human rights are indivisible, interdependent and interrelated. This means that the protection of human rights depends on the effective promotion and protection of other rights. For instance, the right to life depends, among others, on the right to food, right to health and right to a clean and healthy environment. VIENNA DECLARATION AND PROGRAMME OF ACTION (1993) Section I Paragraph 5 ‘All human rights are universal, indivisible and interdependent and interrelated. The international community must treat human rights globally in a fair and equal manner, on the same footing, and with the same emphasis. While the significance of national and regional particularities and various historical, cultural and religious backgrounds must be borne in mind, it is the duty of States regardless of their political, economic and cultural systems, to promote and protect all human rights and fundamental freedoms’.  Human beings have various needs that need attention and fulfillment. These needs can be physical, psychological, moral, spiritual or social. These needs must be met at the same time. It is essential and indispensable, therefore, to ensure a minimum in one or more of the rights to avoid or prevent degradation in another. There are no human rights which are more important than others. All rights and freedoms deserve equal attention. CATEGORIES OR GROUPS OF HUMAN RIGHTS  Internationally recognized human rights are often divided into different categories or groups. These categories can further be divided into sub-categories depending on the nature of right and what it seeks to promote for the full development of a person. 1. Civil and Political Rights (First Generation Rights)  Civil and political rights emphasize the freedom of the individual and normally require the State to abstain from interfering in their enjoyment (duty of abstention). In that sense, civil and political rights impose what is termed a “negative obligation” on the State. Examples include the rights to life; liberty and security of person; freedom from torture and slavery; political participation; freedom of opinion, expression, thought, conscience and religion; freedom of association and assembly.  However, strict adherence to the notion of ‘abstention’ is in fact an oversimplification, since the State has a duty to protect those rights, which requires, on one hand, a functioning 3
  4. 4. judicial machinery and the establishment of laws aimed at protecting a certain right (e.g. the right to life). But legislative measures are not enough. The State is required to take actual steps of enforcement to prevent the violations of those rights or, if a violation nevertheless occurred, to punish its perpetrators. In short, although the government has a duty of abstention concerning the first generation rights, it has to take active steps to ensure that their obligation is complied with by all authorities. This includes also the duty of investigation if a fundamental human right has been violated. 2. Economic and Social Rights (Second Generation Rights)  The second generation category consists of rights that are termed economic, social and cultural rights. Their realization should bring about social justice and equity. They are said to mainly require “positive action” on the part of the State, meaning that the State should take deliberate or active steps to bring about conditions in which every person enjoys adequately his or her economic, social and cultural rights (duty of performance). This category includes the right to education, work and work related rights, adequate standard of living, food, health care and shelter. 3. Collective or Group Rights (Third Generation Rights)  Collective or group rights are by their nature asserted not by individuals as such, but by people as a group. Relatively recently recognized, these include the right of selfdetermination, the right to a clean and healthy environment, the right to peace and the right to development. The concept of collective rights is generally attributed to the contribution of the so-called Third World countries.  Third generation rights are very complex and also very vague. This makes enforcement, and even simple recognition, very difficult. States (mainly Western States) most often prefer to sidestep these rights. Human rights can also be further categorized as follows:  Existential Rights: The focus of human rights is on the life and dignity of human beings. A person’s dignity is violated when they are subjected to torture, forced to live in slavery or poverty, i.e., without a minimum of food, clothing and housing. Other economic, social and cultural rights, such as access to a minimum of education, medical care and social security, are as fundamentally important to a life in dignity as are respect for privacy and family life or personal freedom. (Form nucleus around which other rights have been created)  Freedom Rights (e.g., freedom of speech, conscience, religion, movement, assembly and association)  Equality Rights (equality before the law and equal protection of the law; protection against discrimination on the grounds of sex, race, colour, religion, ethnic or social origin, etc) 4
  5. 5.  Political Rights (right to vote; equal access to public service; freedom to form a political party; right to petition, etc)  Rights of Economic Life (right to own property; right to work and free choice of employment; freedom to provide services)  Collective Rights (the right of peoples to self-determination; protection of minorities and indigenous peoples; right to development; right to peace; right to a clean and healthy environment, etc)  Procedural Rights (especially for administration of criminal justice)  Specific Rights for Vulnerable Groups (children; women; elderly; sick; disabled; aliens; asylum seekers; refugees, etc) All of the above rights constitute legal claims whereby human beings are empowered to live in accordance with the principles of freedom, equality and human dignity. EXAMPLES OF HUMAN RIGHTS In the area of civil and political rights                   Right to life; Freedom from torture, inhuman or degrading treatment or punishment; Right to liberty and security of person; Right of detained persons to be treated with humanity Freedom of movement Freedom from slavery or servitude; Right to recognition everywhere as a person before the law; Right to a fair trial; Right to an effective national remedy; Right to equal protection of the law; Freedom from arbitrary interference with privacy, family, home or correspondence; Right to seek asylum; Right to nationality; Freedom of thought, conscience and religion; Freedom of opinion and expression Freedom of assembly Freedom of association Right to take part in the conduct of public affairs, vote, be elected and have access to public office 5
  6. 6.    Right to marry and found a family Prohibition of retroactive criminal laws Prohibition of propaganda for war and of incitement to national, racial or religious hatred In the area of economic, social and cultural rights          Right to work Right to just and favourable conditions of work Right to form and join trade unions Right to social security Protection of the family Right to an adequate standard of living, including adequate food, clothing and housing Right to health Right to education Right to participate in cultural life In the area of collective rights  Right of peoples to: - self-determination - development - free use of their wealth and natural resources - peace - a healthy environment BENEFICIARIES AND DUTY-HOLDERS OF HUMAN RIGHTS  Traditionally, human rights focus on the rights of the individual and the corresponding obligations of the State to protect human rights.  The State is primarily responsible for ensuring respect for and observance of human rights. It is the State which is a party to international human rights instruments and assumes direct obligations in relation to human rights. By becoming parties to international human rights treaties, States incur three broad obligations: the duties to respect, to protect and to fulfill. 1. Obligation to respect The State obligation to respect means that the State is obliged to refrain from interfering. It entails the prohibition of certain acts by Governments that may undermine the enjoyment of rights. 2. Obligation to protect 6
  7. 7. The obligation to protect requires States to protect individuals against abuses by non-State actors. 3. Obligation to fulfill Under the obligation to fulfill, States are required to take positive action to ensure that human rights can be exercised and realized. Examples: Right to life Respect: The police shall not intentionally take the life of a suspect to prevent his or her escape in the event of a minor offence, such as theft. Protection: Life-threatening attacks by an individual against other persons (attempted homicide) shall be crimes carrying appropriate penalties under domestic criminal law. The police shall duly investigate such crimes in order to bring the perpetrators to justice. Fulfillment: The authorities shall take legislative and administrative measures to reduce progressively infant mortality, maternal mortality and other types of mortality whose underlying causes can be combated. Right to vote Respect: The authorities shall not interfere with the voting procedure and shall respect the election results. Protection: The authorities shall organize voting by secret ballot to preclude threats by persons in power (such as politicians, heads of clan or family or employers). Fulfillment: The authorities shall organize free and fair elections and ensure that as many citizens as possible can vote. Right to food Respect: The authorities shall refrain from any measures that would prevent access to adequate food (for instance arbitrary eviction from land) Protection: The authorities shall adopt laws or take other measures to prevent powerful people or organizations from violating the right to food (e.g. a company polluting the water supply or a landowner evicting peasants). Fulfillment: The authorities shall implement policies to ensure the population’s access to 7
  8. 8. adequate food and the capacity of vulnerable groups to feed themselves.  It is, however, important to realize that the State is not the only entity that is obliged to respect human rights. Today, even individuals are held accountable for human rights violations. For example, the United Nations created the International Criminal Court specifically to deal with persons accused of serious crimes such as genocide, war crimes and crimes against humanity. These crimes always involve serious and mass violations of human rights. CAN STATES RESTRICT HUMAN RIGHTS?  International and constitutional law permit States to limit or suspend part of their legal obligations, and thus restrict some rights, under certain circumstances. To that end, the legal recourse available to States includes limitation clauses and derogation clauses. “Most constitutions contain emergency clauses that empower the Head of State or Government to take exceptional measures, including restrictions on or suspension of fundamental rights, with or without the consent of Parliament during time of war or other catastrophic situations. This constitutional right of emergency of the State is comparable to the individual’s right of self-defence under criminal law. In addition, it offers a State’s democratically legitimate, supreme constitutional organs a basis for avoiding exceptional, irreparable damages to the general public resulting from an international or civil war, the attempt to topple the constitutional order or particularly grave natural or environmental catastrophes.” “Article 4” in Manfred Nowak, UN Covenant on Civil and Political Rights – CCPR Commentary, 2nd revised edition, N.P. Engel, Publisher (2005), at page 84. 1. Limitation clauses  Many obligations to respect human rights are subject to limitation clauses. The exercise of freedoms and rights may be subject to certain formalities, conditions, restrictions and penalties in the interests of national security, territorial integrity or public safety, the prevention of disorder or crime, the protection of public health or morals, or the protection of the reputation or rights and freedoms of others.  As has been stated by the African Commission on Human and Peoples’ Rights, the justification of limitations must be strictly proportionate with and absolutely necessary for the advantages which follow. It is important that the limitation does note erode a right so as to render the right itself not real.1 2. Derogation in a state of emergency 1 See Constitutional Rights Project, Civil Liberties Oragnisation and Media Agenda vs Nigeria, Communication 140/94-141/94-145.95, para. 42. 8
  9. 9.  In times of war, rioting, natural disasters or other public emergencies that pose a serious threat to the life of a nation, governments may take measures derogating from their human rights obligations, provided the following conditions are met:  A state of emergency has been declared;  The specific measures derogating from an international treaty must be officially notified to the competent international organisations and other States parties;  Derogation is permissible only to the extent strictly required by the situation;  The derogation must be lifted as soon as the situation permits;  The rights subject to derogation must not be among those that admit no derogation.  Limitation and derogation clauses have a similar function in the sense that both provide legal avenues for States to break free of obligations that would ordinarily constrain their actions. They are also similar in that neither permits States to ignore their human rights obligations altogether.  However, one significant difference between the two is that derogations were designed to be applicable only in the exceptional case of a grave threat to the survival and security of a nation. The implication is that derogations were intended to be invoked as temporary measures. In contrast, limitation clauses apply across the spectrum, from everyday public order maintenance and policing strategies to national security and large-scale military actions.  Some human rights are absolute and not amenable to limitations or derogations, e.g., freedom from torture; freedom from slavery; or the right not to be subjected to enforced or involuntary disappearance. In Summary Human rights are basic rights and freedoms that all people are entitled to regardless of nationality, sex, national or ethnic origin, race, religion, language, or other status. Human rights include civil and political rights, such as the right to life, liberty and freedom of expression; and social, cultural and economic rights including the right to participate in culture, the right to food, and the right to work and receive an education. Human rights are protected and upheld by international and national laws and treaties. The Universal Declaration of Human Rights (UDHR) is the foundation of the international system of protection for human rights. It was adopted by the United Nations General Assembly on December 10th, 1948. This day is celebrated annually as International Human Rights Day. The 30 articles of the UDHR establish the civil, political, economic, social, and cultural rights of 9
  10. 10. all people. It is a vision for human dignity that goes beyond political boundaries and authority, committing governments to uphold the fundamental rights of each person. After this you can add those parts we tackled on specific rights of suspects/remandees 10

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