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Human Rights


									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.

                  Human Rights
• There is a higher category of
  moral rights called human
• These are rights which apply
  to all people at all times in all
• 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
• 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
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

without the
need for
          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
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       We hold these truths to be self-
posterity; namely, the enjoyment of life      evident, that all men are created
and liberty, with the means of acquiring      equal, that they are endowed by their
and possessing property, and pursuing         Creator with certain unalienable
and obtaining happiness and safety.           Rights, that among these are Life,
II That all power is vested in, and           Liberty and the pursuit of Happiness.
consequently derived from, the people;        That to secure these rights …
that magistrates are their trustees and
servants, and at all times amenable to                            The United States
them.                                                  Declaration of Independence
   Virginia Declaration of Rights
Universal Declaration of Human Rights
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,
  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
        Fundamental Rights
Human rights also cover those rights and
freedoms necessary for human dignity, creativity
and intellectual and spiritual development,
 The right to education and to access to information
 Freedoms of religion, opinion, speech, and
 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.
                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

      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
• It is deliberately politically neutral but that
  also means that it doesn’t occupy a clearly
  defined position on the scale of political
• 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
• 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
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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