IDEA OF HUMAN RIGHTS

Introduction:
The Idea of Human Rights

The era of globalization is also the era of the individual. Revolutionary innovations in technology and telecommunications have empowered the individual, for better or worse, to exercise a previously unthinkable degree of self-expression. The same age that has seen the advent of the threat of global terror networks is also the one that has given birth to YouTube.

This focus on the individual is part of a broader trend that has been underway for centuries and has only intensified since the end of the Second World War. One of its most important manifestations in the twentieth – and now twenty-first – century has been the development of a conceptual and legal framework for human rights as well as a new dimension of civil society dedicated to ensuring that these rights are protected.

Human rights recognize the dignity inherent in every person as a human being, regardless of his or her particular nationality, race, ethnicity, religion, gender, sexuality, class or any other group affiliation or characteristic. As a result, they assert the moral and legal primacy of the individual over other entities that have “rights,” such as the family and the state.

This Brief will examine the history of human rights and survey some of the key debates about how these rights should be applied in current real-world situations. Two areas of special focus will be human rights and violence ( genocide and torture) and human rights and groups (children, women, indigenous peoples).

Several of the issues raised in the Brief will touch on topics covered in other issue briefs and news analyses on the Globalization101.org website. Cross-references to these resources will be provided throughout the Brief.

Genocide:
the systematic, planned, and deliberate extermination, attempt to exterminate, or conspiracy to exterminate an entire national, racial, ethnic, or religious group.
Indigenous:
peoples who inhabited a land before it was conquered by colonial societies and who consider themselves distinct from the societies currently governing those territories.

Enlightment:
a philosophical movement in the 18th century that advocated the use of reason and individualism to scrutinize previously accepted traditions; the movement resulted in political, religious, and educational reforms.
Natural Rights:
rights deriving from natural law, a body of law believed to be derived from nature, and therefore to be binding on human actions in addition to law established by human authority.
Classical Liberalism:
a doctrine stressing the importance of human rationality, property rights, natural rights, individual freedom, free markets, and limited government.
Divine Rights:
the notion that monarchs are endowed with their authority to rule by God, not by the people.
Declaration of Independence:
the document that proclaimed the independence of the American colonies from England, adopted by the Second Continental Congress on July 4, 1776.
U.S. Constitution:
the document that provides the fundamental principles and laws that prescribe the structure, functions, and limits of the U.S. government.
Bill of Rights:
the first ten amendments to the U.S. Constitution that guarantee certain fundamental rights of the people, such as the right to free speech and freedom of religion.
Fraternity:
the quality of being brotherly or of having a common purpose. Similar in meaning to ‘solidarity.’

Human Rights vs. Natural Rights

The modern conception of rights can be traced back to Enlightenment political philosophy and the movement, primarily in England, France, and the United States, to establish limited forms of representative government that would respect the freedom of individual citizens.

John Locke, in his Second Treatise on Government (1690), described a “state of nature” prior to the creation of society in which individuals fended for themselves and looked after their own interests. In this state, each person possessed a set of natural rights, including the rights to life, liberty and property. When individuals came together in social groups, the main purpose of their union was to secure these rights more effectively. Consequently, they ceded to the governments they established “only the right to enforce these natural rights and not the rights themselves” (35).

Locke’s philosophy, known as classical liberalism, helped initiate a new way of thinking about individuals, governments, and the rights that link the two. Previously, heads of state had claimed to rule by divine right, tracing their authority through genealogy to the ultimate source of authority in divine power. This was as true for Roman emperors as it was Chinese and Japanese emperors. The theory of divine right was most forcefully asserted during the Renaissance by monarchs across Europe, most notoriously James I of England (1566-1625) and Louis XIV of France (1638-1715).

Locke’s principles were adopted by the founding fathers of the United States in the Declaration of Independence (1776), which stated:

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, Governments are instituted among Men, deriving their just powers from the consent of the governed… (36)

The echoes of Locke and foreshadowing of the Universal Declaration are unmistakable in the language of the Declaration. These principles would be further developed and enshrined in the U.S. Constitution (1787) and Bill of Rights (1789).

The English had attained their own Bill of Rights following the Glorious Revolution of 1688, just as the French later would with the Declaration of the Rights of Man and the Citizen that was drafted after the French Revolution in 1789. This document would famously reformulate Locke’s three fundamental freedoms—life, liberty and property—as liberty, equality and fraternity. The differences between the Anglo-American and continental legal, political and social traditions may be neatly summed up by this seemingly minor difference in language (see section on “Three Generations of Rights”).

The doctrine of natural rights, which deals with civil and political rights exclusively, established the rights of citizens in a national context. The innovation of human rights in the twentieth century extended the idea of individual rights to include all human beings, regardless of citizenship or state affiliation. Human rights helped reconstitute individual identity and freedom as something transcending national borders. As the atrocities of the World Wars made clear, there were times when the state became the citizen’s greatest enemy and outside protection was his or her best and only hope.

New Deal:
the programs advocated by and created by U.S. President Franklin D. Roosevelt that were designed to promote economic recovery from the Great Depression as well as social reform.
Cold War:
a term used to describe the relationship between the United States and Soviet Union from World War II until 1990 that was characterized by intense political opposition and military rivalry that never developed into a full-scale, armed war.

Negative vs. Positive Rights

The division in the International Bill of Rights between the two Covenants, which cover civil and political rights and economic, social and cultural rights separately, hints at a more fundamental difference between these two sets of rights and raises questions about the nature of rights itself.

The first set is essentially a group of negative prohibitions, a list of ways in which individual liberty cannot be restricted or impeded; the second set lays out a group of positive prescriptions as to what actions should and must be taken to allow for the free exercise of that individual liberty.

In a famous lecture delivered at Oxford University in 1958, titled “Two Concepts of Liberty,” the political philosopher Isaiah Berlin clarified this distinction, which he framed in terms of positive and negative liberty. If negative liberty is concerned with the freedom to pursue one’s interests according to one’s own free will and without “interference from external bodies,” then positive liberty takes up the “degree to which individuals or groups” are able to “act autonomously” in the first place. In other words, what are the conditions under which individuals shape their understandings of their own free will? (37) What gives individuals a positive idea about how they should act, rather than negative limitations on how they may not act?

Civil and political rights are concerned with negative liberty,1 while economic, social and cultural rights are grounded in positive liberty; hence the need for two Conventions. There was some disagreement about the relative importance of these two conceptions during the debates over the Universal Declaration and its Conventions.

While the U.S. had adopted a welfare state model under the New Deal reforms of President Franklin Delano Roosevelt, economic and social rights were not part of the American political tradition in the same way they had been for many continental European governments (or the increasingly powerful Soviet Union, for that matter).

The brewing Cold War between the U.S. and the Soviet Union would spill over into the arena of human rights (38). The Soviets gave a high place to the collective over the individual. This meant priority for positive liberty, which they believed empowered the state to take sweeping action to provide for the well-being and “self-realization” of its citizens, sometimes at the expense of individual civil and political rights, such as the right to political participation (39).

Many in the West, however, viewed the Soviet position skeptically as a veiled attempt to return to the excesses of authoritarianism that the United Nations had been set up to prevent. Great injustices have often been committed for the benefit of the collective good. Berlin and others were wary of “the way in which the apparently noble ideal of freedom as self-mastery or self-realization had been twisted and distorted by the totalitarian dictators of the twentieth century” (40).

In the end, the Soviet bloc would abstain from approving the Universal Declaration. An understanding on human rights between the Soviet Union and the West was finally reached in the Helsinki Accords of 1975, though disputes about the limitations of government authority in cracking down on human rights continued to linger until the Soviet Union’s collapse in 1991 (41).

Ultimately, it remains an open question whether the positive and negative forms of liberty are two aspects of a common conception of rights or two distinct types of rights that are closely related without being identical.

Human Rights and Violence

At their most fundamental, human rights seek to protect an individual’s right to life. Such protections range from the basic freedom from physical harm to highly complex forms of welfare assurance that encompass health, education, and the environment.
The very idea of human rights, as opposed to natural rights, emerged as a response to historical events that threatened the very right to exist for millions of vulnerable people. The horrors of the Holocaust led the people of the world to reassert the value of every human life and to create the international legal framework that ensured such atrocities would never occur again.

The practice of multilateral cooperation in matters involving violence had been well-established since the nineteenth century. A series of traditions and international agreements had evolved to address the treatment of prisoners and soldiers on the battlefield. What was new about the genocides of the twentieth century was that they were perpetrated against noncombatant civilians who were largely defenseless.

Often, these extreme acts of violence were committed by governments against the very citizens whose rights those governments were meant to safeguard. International values and standards about the humane treatment of people in times of war needed to be extended to apply to all people in all circumstances. It was clear that the rights of citizenship and strictly national enforcement mechanisms were no longer sufficient.

At first, the set of issues clustering around the topic of human rights and violence might not seem as controversial as some of the other issues this Brief will be considering later on. After all, who would object to the notion that governments and private citizens alike should not be allowed to kill or torture people? While such principles may seem to be clear cut in theory, they can become far more complicated when brought to bear on real-world situations. We will now turn to some of these debates.

United Nations Efforts To Secure Freedom from Torture

A dedicated Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment; was completed in 1984 and entered into force in 1987 (5). Article 1 of the Convention Against Torture defines torture, inhuman or degrading treatment in the following way:

An act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent of or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions (6).

This definition is extremely broad, and the nature and limits of behavior covered by this language has been much debated. The key properties of torture, however, are clearly presented: (a) the infliction of severe pain or suffering, (b) the presence of an intention to torture, (c) a purpose to extract information or a confession or to punish, and (d) some form of authorization by officials in power.

The Convention established a UN Committee on Torture and appointed a Special Rapporteur on Torture to coordinate the UN’s efforts and to investigate individual complaints through country visits and annual reports (7). It should be noted that torture is also discussed in the International Bill of Rights in Article 5 of the Universal Declaration and Article 7 of the ICCPR.

on Torture to coordinate the UN’s efforts and to investigate individual complaints through country visits and annual reports (7). It should be noted that torture is also discussed in the International Bill of Rights in Article 5 of the Universal Declaration and Article 7 of the ICCPR.
The ban on torture encompasses four separate human rights. The first is the right to be protected from torture, whether carried out by states or private individuals, by all legal, administrative and judicial means available (Convention Against Torture, Articles 2 and 4) (8).

The second is the right to have those accused of torture prosecuted, wherever they may be (Convention Against Torture 5, 6, and 8). This is a good example of the blurred line between a right and duty, because the right to prosecution enjoyed by individuals also imposes an obligation on all states either to extradite suspects to the proper jurisdiction or to prosecute them themselves (9).

The third is the right of a person to not “be expelled, returned or extradited to another state” if there is suspicion that that person might be subject to torture, inhuman or degrading treatment (Convention Against Torture, Article 3). This principle of non-refoulement will be examined more closely later in this section (see “Non-Refoulement: Extraordinary Renditions and Outsourcing Torture”) (10).

The fourth is the “right of victims to obtain redress, fair compensation, including rehabilitation and the right of victims to make a complaint, to have it impartially investigated, and to be protected from retaliation for making complaints.” Forms of compensation can include financial awards, medical care, and other measures to restore a victim’s “dignity and reputation” in both the private and public spheres (11).