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principles
This page highlights the shape of human rights principles.
It covers -
The
following page points to works that explore philosophies and
practicalities in more detail.
introduction
Characterisations of human rights - and respect for them in
practice, rather than merely as aspirational statements -
vary considerably, with disagreement for example about privacy,
censorship, freedom of religion and "cruel, inhuman or
degrading treatment". In 1943 Roosevelt and Churchill
proclaimed that "freedom means the supremacy of human
rights everywhere".
Slavoj Zizek bizarrely commented 65 years later in Violence
(London: Picador 2008) that "universal human rights"
are an ideological sham: "effectively the rights of white
male property owners to exchange freely on the market and
exploit workers and women".
Much of the legislation and debate highlighted throughout
this site is predicated on human rights as those rights which
which a person is endowed simply because he/she is a human
being. They are sometimes characterised as those entitlements
without which people cannot live in dignity. Violation of
human rights treats an individual as though he or she is not
a human being.
Landmark statements of principle such as the 1948 United Nations
Universal Declaration of Human Rights (UDHR) identifies
human rights as being held by all people equally, universally,
and forever. Those rights are interdependent, inalienable
and indivisible.
Interdependence, for example, means that an individual's right
to free expression and to participation in government is directly
affected by rights to the physical necessities of life, to
education, to free association and non-interference by police
or other agencies. Inalienability means that those rights
are innate: a person cannot lose those rights and cannot be
denied a right because it is "less important" or
"non-essential."
Human rights are aspirational and practical. Human rights
principles provide a vision of a just and peaceful world.
Human rights agreements establish minimum standards for how
organisations, individuals and societies should treat people.
They provide a framework that empowers action by civil society
advocates, governments and businesses when minimum standards
are not met, as people still have human rights even if national
laws and institutions do not recognise or respect those rights.
Rights are not isolated from responsibilities. The UDHR for
example specifies that Article 29
In the exercise of his rights and freedoms, everyone shall
be subject only to such limitations as are determined by
law solely for the purpose of securing due recognition and
respect for the rights and freedoms of others and of meeting
the just requirements of morality, public order and the
general welfare in a democratic society.
As statements of principle, national/international human rights
codes assume that there will be support for those whose rights
are abused or denied, a support that frequently leads to conflicts
between governments (or with NGOs and international bodies)
along with disagreement about expectations and mechanisms.
Human rights are also aspects of markets, with the European
Union for example highlighting five 'freedoms': free expression,
free movement of goods, labour, capital and services. That
is an echo of the US-Anglo declaration of 1941, which identified
four freedoms - free speech and expression, freedom of religion,
freedom from want and freedom from fear (initially through
restrictions on physical agression by states) - and identified
the individual as a legitimate object of international concern.
Michael Burleigh commented that "our societies stand
judged by the degree of tolerance we evince towards the most
distressed or weakest members"
civil, political and other rights
Disagreement about the nature of rights - or merely about
the priority to be given to particular rights - has been reflected
in the cascade of national and international statements of
principle, enactments and agreements.
It is common to differentiate between two classes of rights
(sometimes labelled as fundamental and complementary rights)
-
- civil
and political rights
- economic,
social and cultural rights
although
distinctions are often unclear and particular rights might
appear in either class.
Australian lawyer Peter Bailey commented that
if
civil and political rights can be described as the rights
which enable individuals to operate freely within the political
system and to be protected from arbitrary action in the
administration of the law, including particularly the criminal
law, then economic, social and cultural rights can be described
as allowing people to own property, to work in fair conditions
and to be guaranteed an adequate standard of living and
facilities for education and the enjoyment of life and of
the culture in which they live or have been brought up.
equity
The initial articles of the UDHR, a child of the Enlightenment,
indicate that
All
human beings are born free and equal in dignity and rights.
They are endowed with reason and conscience and should act
towards one another in a spirit of brotherhood
with
entitlement to rights and freedoms
without distinction of any kind, such as race, colour, sex,
language, religion, political or other opinion, national
or social origin, property, birth or other status
and
without distinction on the basis of the political, jurisdictional
or international status of the country or territory to which
a person belongs.
Everyone has the right to recognition everywhere as a
person before the law; no one should be subjected to arbitrary
arrest, detention or exile. Articles 7 and 8 of the UDHR declare
that
All
are equal before the law and are entitled without any discrimination
to equal protection of the law. All are entitled to equal
protection against any discrimination in violation of this
Declaration and against any incitement to such discrimination.
Everyone has the right to an effective remedy by the competent
national tribunals for acts violating the fundamental rights
granted by the constitution or by law.
As a corollary it indicates that all are entitled in full
equality to a fair and public hearing by an independent and
impartial tribunal, in the determination of rights, obligations
and any criminal charge. Those charged with a penal offence
have the right to be presumed innocent until proved guilty
according to law in a public trial at which he has had all
the guarantees necessary for his defence.
The emphasis on equity means it is unsurprising that Article
16 of the UDHR states that
Men
and women of full age, without any limitation due to race,
nationality or religion, have the right to marry and to
found a family. They are entitled to equal rights as to
marriage, during marriage and at its dissolution.
Some
states have inferred that equity and just provisions imply
civil recognition of same-sex relationships, eg the removal
of discrimination in access to partner superannuation in Australia.
The UDHR indicates that everyone, as a member of society,
has the right to social security and
is
entitled to realization, through national effort and international
co-operation and in accordance with the organization and
resources of each State, of the economic, social and cultural
rights indispensable for his dignity and the free development
of his personality.
Elyn
Saks' Refusing Care: Forced Treatment and the Rights of
the Mentally Ill (Chicago: Uni of Chicago Press 2002)
liberty
The UDHR indicates that everyone has the right to "life,
liberty and security of person", with explicit prohibition
of slavery. Article 5 indicates that no one shall "be
subjected to torture or to cruel, inhuman or degrading treatment
or punishment", although there is considerable disagreement
about what is cruel or inhumane and how the article is to
be put into effect. Everyone has the right to own property,
whether alone or in association with others, and no one should
be arbitrarily deprived of property.
Privacy - most traditionally
in the form of non-interference - is a salient human right.
Article 12 of the UDHR for example states that
No
one shall be subjected to arbitrary interference with his
privacy, family, home or correspondence, nor to attacks
upon his honour and reputation. Everyone has the right to
the protection of the law against such interference or attacks.
Freedom
of movement (including a rights-based passport
and travel regime) is also important, with UDHR Article 13
stating that everyone has a right to freedom of movement and
residence within the borders of each state, along with the
right to leave any country, including his own, and to return
to his country. Everyone has the right to a nationality and
under Article 15 should not be arbitrarily deprived of nationality
nor denied the right to change nationality. Everyone has the
right to seek and, more contentiously, to enjoy in other countries
asylum from persecution.
thought and expression
For visitors to this site two critical UDHR articles concern
thought and expression of that thought.
Article 18 indicates that
Everyone has the right to freedom of thought, conscience
and religion; this right includes freedom to change his
religion or belief, and freedom, either alone or in community
with others and in public or private, to manifest his religion
or belief in teaching, practice, worship and observance.
That
article is reflected in debate about censorship
and surveillance, which also draws on articulation in Article
19 of
the
right to freedom of opinion and expression; this right includes
freedom to hold opinions without interference and to seek,
receive and impart information and ideas through any media
and regardless of frontiers.
participation and association
Those rights are complemented by positive and negative rights
of association and participation. The UDHR indicates that
all have a right to freedom of peaceful assembly and association;
no one may be compelled to belong to an association.
Under Article 21 everyone has the right to
- take
part in the government of his country, directly or through
freely chosen representatives
-
equal access to public service in his country.
The
UDHR seeks expression of the will of the people as the basis
of government authority through "periodic and genuine
elections" on the basis of universal and equal suffrage.
That aspiration has not, alas, been met in roughly half the
world.
livelihood
Consistent with aspirations to realisation of "economic,
social and cultural rights" the UDHR indicates that everyone
has the right to
-
work, to free choice of employment, to just and favourable
conditions of work and to protection against unemployment.
-
equal pay for equal work
- form
and to join trade unions for the protection of his interests
- rest
and leisure, including reasonable limitation of working
hours and periodic holidays with pay
and
that everyone who works has the right to just and favourable
remuneration ensuring for that individual and family "an
existence worthy of human dignity". That remuneration
should be "supplemented, if necessary, by other means
of social protection", because
everyone
has the right to a standard of living adequate for the health
and well-being of himself and of his family, including food,
clothing, housing and medical care and necessary social
services, and the right to security in the event of unemployment,
sickness, disability, widowhood, old age or other lack of
livelihood in circumstances beyond his control.
A
perspective is provided in Freedom From Poverty As A Human
Right: Who Owes What To The Very Poor (Oxford: Oxford
Uni Press 2007) edited by Thomas Pogge.
education, culture, creativity
Article 26 of the UDHR identifies a salient right to education,
"directed to the full development of the human personality".
Critics of digital divides
hail the UDHR's statement that
Everyone
has the right freely to participate in the cultural life
of the community, to enjoy the arts and to share in scientific
advancement and its benefits.
Recognition
of the significance of intellectual
property for economic, community and personal development
is evident in the statement that
Everyone
has the right to the protection of the moral and material
interests resulting from any scientific, literary or artistic
production of which he is the author.
The
cultural rights of people belonging to minorities are not
explicitly recognised by the Universal Declaration of Human
Rights, which assumes that cultural participation will take
place in a single culture of a nation-state. They were belatedly
recognised by Article 27 of the International Covenant on
Civil & Political Rights in 1996 and by the 1948 Convention
on the Prevention and Punishment of the Crime of Genocide,
which covers deliberate acts with the intent to destroy the
language, religion or culture of a national, racial or religious
group on grounds of national or racial origin or religious
belief (including prohibiting use of a language in schools
or publications and destroying libraries, museums, schools,
historical monuments, places of worship or other cultural
institutions).
information access as a new right?
UNESCO has ambitiously argued (PDF)
that access to information (aka right to information or RTI)
is a fundamental human right in the 21st century, in line
with the 1948 UN Universal Declaration of Human Rights.
Article 19 of the UDHR concerns "freedom of expression
and the right to seek, receive and impart information",
characterised in 2003 as
particularly
important in the Information Society since it forms the
necessary condition for the realization of other internationally
recognized human rights.
It
encompasses
freedom
to hold opinions without interference and to seek, receive
and impart information and ideas through any media and regardless
of frontiers.
In
1997 the UN's Administrative Committee on Coordination (ACC)
issued a Statement
on Universal Access to Basic Communication and Information
Services, foreshadowing a 'Human Right for Universal
Access to Basic Communication & Information Services'.
The UNHCR argued in 2003 that
the right to access information would also entail the availability
of adequate tools to access information, and has implications
for the sharing of knowledge as well.
Although
cited at gatherings such as the 2003 World Summit on the Information
Society (WSIS), discussed here,
there has been little progress in moving beyond generalities.
Debate has centred on
- political
or other censorship as
a restriction on human rights, with disagreement between
the groups in advanced economies and the rest of the world,
along with disagreements within most states
- intellectual
property as an incentive for or impediment to development
in emerging economies (characterised by some as a North-South
IP Divide or disparity between the "Information Rich
and Information Poor")
- the
most effective mechanisms for bridging a variety of national
and international digital divides,
including barriers posed by disability, lack of education,
inadequate infrastructure, expectations and even lack of
a credit card (often a prerequisite for engaging in electronic
commerce)
Outside
the West there has arguably been less interest in - or merely
awareness of - a right for individuals to control what information
is collected about them and how that information is used,
an extension of the right of privacy
that has emerged over the past two centuries and is particularly
challenging because of pervasive ICT.
Article 27 (1) of the UDHR has been acclaimed
as establishing a global 'right to art' -
Everyone
has the right freely to participate in the cultural life
of the community, to enjoy the arts, and to share in scientific
advancement and its benefits.
In
practice it is unclear whether such aspirational statements
have much meaning.
practicalities
Andrew Williams' revisionist EU Human Rights Policies
A Study in Irony (Oxford: Oxford Uni Press 2004) comments
From
the arguably mythical basis that the EU was founded upon
a general principle of respect for human rights; policies
and practices have developed along two distinct paths. Internally,
within the EU, human rights are contingent. Scrutiny is
erratic and even casual, and enforcement is left to the
courts and independent agencies. Externally, in the EU's
interactions with non-members, however, the story is very
different: human rights are broad in concept. Collective
notions of rights are accepted and promoted. Scrutiny can
be intrusive and effective, and systems of enforcement,
increasingly severe in scope and strength, have been applied.
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