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Nature, Sources & Types of Human Rights

Self-determination also provides a framework for human rights, as depicted the 5th row in Table 1. Here, we discuss what human rights are and their sources, and identify the different types of human rights.

Nature of Human Rights

A human right is defined somewhat tautologically as a right an individual enjoys simply because he/she is human. The word 'right' in human rights has moral, legal and political connotations:

1. Moral: Rights in this sense imply rectitude – i.e. that something is 'correct', 'right', 'proper', or 'good' in a moral sense.

2. Legal: This addresses the status of the person claiming the right, and the obligations/duties of others in their relationship with the right-bearer. Legal rights ground rights-claims in a legal framework. They do two things: a) they give the rights-claimant the procedural capacity to defend his/her rights (i.e. the ability to go to court to defend the right); and b) impose duties on others to respect that right. Rights that are entitlements are obligatory and carry the force of law. A legal right grounds duties and provides reasons for that duty.

3. Political: This addresses procedures and mechanisms that empower rights-claimers to be assertive in defence of rights.

As we shall see a major challenge for human rights in international law is that the three components identified above often do not go together (i.e., there is a gap between the moral, legal and political dimensions of human rights).

Sources of Human Rights

Here, we address the question, where do human rights come from? The explicit recognition of human rights in international law is a fairly recent development. Although ideas concerning protection of individuals and groups have been around for some time, it was not until the post WWII period, that human rights were recognized explicitly in international law.

The philosophical origins of the contemporary human rights lie in 18th century European Enlightenment thinking. Philosophically, the source of HR represents a moral vision of the minimum requirements of a life of dignity, and the content of these rights are defined in terms of what a society believes its people must enjoy in order to realize their full potential as human beings. Thus, at one level, HR are essentially extra-legal rights. If legal rights are based on existing social practices (the "is" in legal positivism), human rights are based on notions of what "ought to be" (natural law). Their principal aim is to challenge/change existing institutions and practices, including legal institutions.

Thus, as we shall see when we discuss the issues of debate, one of the greatest obstacles to strengthening human rights internationally lies in disagreements and competing moral visions of what a 'life of dignity' entails and how the 'full potential' of human beings is to be realized.

Types of Human Rights

Human Rights are usually classified into the following categories:

1. First-Generation rights: These are the Civil and Political rights and liberties such as the right to free speech, freedom from arbitrary arrest, freedom of association and assembly, and so on.

2. Second-Generation Rights: These are the Social and Economic Rights such as the right to food, shelter, clothing, employment, and so on.

3. Third-Generation Rights: These are collective or group rights and include language rights, cultural rights, minority rights, aboriginal rights, and women's rights.

This classification primarily reflects the temporal order in which the types of rights appeared, with the first generation rights as the earliest set of rights. The classification also reflects the degree of priority accorded the different types of rights in each category, where civil and political rights have generally been accorded a higher priority than rights in the other categories. Others attempt to prioritize human rights by distinguishing so-called 'basic rights' (e.g., right to life, food, and shelter) from non-basic rights. Debates over the content of human rights underscore the priority accorded different types of rights.

Issues of Debate Over the Content of Human Rights

Two main sets of debates have informed the global discourse on human rights: First, the debate over Negative and Positive rights; second the debate over Universalism and Cultural Relativism. We discuss each in turn.

Negative and Positive Rights

Negative Rights are rights you enjoy when someone else (usually the government and its enforcement apparatus) refrains from doing something to you. These rights deal with personal liberties and require that others refrain/abstain from certain courses of action (i.e. they require acts of omission and that is why they are 'negative' rights). Negative rights are usually expressed as 'freedom from' (negative liberty) and entail the acquisition of immunities. In terms of content, the first generation civil and political rights are in the form of negative rights, e.g. freedom from torture, arbitrary arrest and detention, etc.

Positive Rights are rights you enjoy when others provide certain services/goods in order that the right may be claimed, or create the conditions such that you can provide them yourself (i.e. they require acts of commission). They thus entail the 'freedom to' do something (positive liberty) or the acquisition of capacities to do something and that is why they are positive rights. Positive rights correspond to the second-generation Economic and Social rights.

The debate here is over whether negative rights take priority over positive rights (or vice versa). This issue arises because many western societies, led by the USA, give priority to negative civil and political rights as true human rights. The USA in particular has strongly resisted recognizing of positive economic and social rights. Many non-western developing states in the Global South, in contrast, argue that positive economic and social rights are logically prior to negative rights.

Developing countries point to the so-called 'liberty-growth trade-off' in support of their argument for prioritizing positive rights. The argument goes like this: premature recognition of civil and political liberties (i.e. democratization) would lead to economic chaos because distributional coalitions (e.g. interest groups) would lobby for their own selfish interests to the detriment of the wider society. In other words, prioritizing negative rights would impede the socio-economic development of their states. Chinese leaders, for example, are quoted as saying, "what use is free speech if you are starving?"

The counter-argument is that "if you had free speech, you would not be starving" which rejects the 'liberty-growth trade-off, and suggests that recognition of negative rights would actually facilitate not impede socio-economic development.

To date, the debate between negative rights and positive rights remains unresolved. But it is worth noting that the Universal Declaration of Human Rights, passed by the UN General Assembly in 1948 contains both positive and negative rules (articles. 3-22 are negative rights; and articles 23-26 are positive rights).

Universalism and Cultural Relativism

Proponents of Universalism argue that human rights apply to all human beings as individuals. There are universal standards of 'right' and 'wrong' to which all human beings subscribe and hence culture differences are largely irrelevant to the validity of moral rights and rules. Standards of morality and hence human rights are universally applicable, irrespective of cultural differences.

Proponents of Cultural Relativism stress the importance of regarding social and cultural phenomena from the perspective of the participants/adherents of that culture. No culture's values/beliefs dominate all others, and that all moral standards, including human rights are culturally determined. They further argue that adopting a universal standard of human rights would undermine their cultures. There are certain cultural practices that are worth preserving. Cultures are so varied that it is impossible to evolve a shared moral vision of what constitutes a life of dignity and of the means to realize full human potential.

A key aspect of the debate has centered on disagreements on the relationship between the individual and the community in recognition of human rights. A brief summary of some key issues of debate is as follows:

The Individual

In the individualistic conception of human rights that underpins Universalism, which is informed by western liberalism, the individual is prior to society. Liberalism argues that individuals, not communities, are autonomous sources of moral ends. From a moral point of view, communities are abstractions, individuals are concrete entities, and territorial boundaries are legal fictions.

1. If states have any rights, these are derived from the moral attributes of the individuals who comprise the collective. Excessive focus on the community may obscure instances of the violations of individual rights. Human Rights, therefore, are inherent rights enjoyed by individuals prior to the creation of society – the true state of nature. Society and government are artifacts created by individuals. The rights of individuals, therefore, are prior to the rights of society/community. When the rights of the individual and the rights of the community clash, the rights of the individual should prevail. For liberals, there is no need to recognize special rights for groups. Group rights would be protected indirectly by guaranteeing basic civil and political liberties to all regardless of group membership.

2. Guided by this individualistic philosophy, the UN Commission on Human Rights established in 1946 under the leadership of Eleanor Rosevelt, deleted all references to group rights (minority rights) in the UNDHR in 1948. Instead, the doctrine of human rights put forward in the UDHR is based on the premise that groups/minorities whose members enjoy individual equality cannot legitimately demand facilities for the maintenance of group rights.

3. If any arrangements are to be made to recognize group rights these are to be considered temporary. Liberals argue that recognizing group rights can be used to justify all kinds of abuses such as apartheid. The problem is group-differentiated rights cannot easily be subsumed under traditional HR.

The Community & Culture

The argument here is that the community is prior to the individual. Although individuals create communities the community as a whole acquires an identity that is separate from the identities of the individuals that comprise it. Communities are embodiments of cultural values. The identity of the individual cannot be defined separately from the community, and hence when the rights of the individual and the community clash, the rights of the community should prevail. Communitarian perspectives make the following kinds of arguments in their rejection of individualism:

1. It reflects the atomistic and possessive individualism of liberalism in the West.

2. The focus on individuals could result in outcomes that are detrimental to the society as a whole.

3. A focus on individuals obscures and obfuscates instances where the abuse of rights applies not necessarily to individuals, but to collectives as in the examples of racism, sexism, and heterosexism. In these instances, the source of the abuse/discrimination is not individualistic but collective, and thus dealing effectively with these issues requires an approach that recognizes group rights.

4. Fallacy of composition: "The whole is greater than the sum of its parts" hence although communities are created by individuals, once created, the community has an identity that cannot be reduced to that of its individual members.

5. Liberal views of deny relevance of constitutive attachments that help to define an individual's identity. Constitutive attachments, such as cultural values, enable and constrain the capacity of individuals to make choices – they influence the options available, and the values attached to those options – which are pre-conditions for choices.

The debate over universalism and relativism continues, with many non-western developing countries in Africa and Asia emphasizing community (as a primary source of culture), whereas as individualism is championed by western countries.

The International Human Rights Regime

The International Human Rights Regime (IHRR) consists of substantive component – the body of principles, norms and rules; and a procedural component – the institutions and procedures developed to implement international standards of human rights and to promote respect for human rights on a worldwide basis. These institutions exist within the United Nations Organization, and in regional organizations, and include several prominent INGOs such as the ICRC and Amnesty International. We first outline the broad features of this regime before discussing some key challenges to enforcing human rights.

Substantive Human Rights Laws: The Principles, Norms and Rules

Table 2 summarizes some of the main sources of human rights standards in descending order of importance:

Table 2: Major Sources of Human Rights in International Law
1	Peremptory Norms (Jus Cogens)	These are norms accepted and recognized by the international community as whole as norms from which no derogation is permitted, and which can be modified only by a subsequent norm of general international law having the same character. While some disagreement exists regarding the precise content of these norms, most observers agree they include prohibitions against genocide, slavery, and institutionalized racial discrimination (apartheid).
2	General Customary Law	Rules that afford protection for individuals (e.g., state responsibility and the rights of aliens).
3	Multilateral Treaties	The UN Charter	Specific UN Charter provisions that deal with human rights are found in the following articles: · 1(2) and 1(3) – purposes of the UN · 13(1) – the General Assembly · 55(c) and 56 – pledge for joint and separate action · 62 – the ECOSOC · 68 – the ECOSOC Commissions · 73 – non self-governing territories · 76(c) – trusteeship system
		Other Treaties	A brief sample includes: · 1948 – Convention on Genocide · 1952 – Convention on the Rights of Women · 1957 – Standard Minimum Rules for the Treatment of Prisoners · 1961 – Convention on the Elimination of all forms of Racial Discrimination · 1966 – Covenant on Civil and Political Rights · Optional Protocol a (1966): allows for individual complaints. · Optional Protocol b (1989): abolishes the death penalty. · 1966 – Covenant on Economic, Social and Cultural Rights · 1967 – Protocol Relating to the Status of Refugees · 1979 – Convention on the Elimination of all forms of Discrimination against Women · 1984 – Convention against Torture and other Cruel and Inhumane or Degrading Punishment · 1989 – Convention on the Rights of the Child · 1990 – Convention on Migrant Workers
		Regional Treaties	· 1953 – European Convention for the Protection of Human Rights · 1961 – European Social Charter · 1969 – American Convention on Human Rights · 1981 – African Charter on Human and People's Rights
4	Resolutions and Declarations of International Organizations	These are characterized as 'soft law' (non-binding). For example: · 1948 – Universal Declaration of Human Rights (UN General Assembly). Some argue that the UDHR is part of general customary law.

Procedural Human Rights Law: The Institutional & Decision Making Procedures

Table 3 summarizes some of the major IGOs and procedures for implementing Human Rights in international law.

Table 3:Institutions & Procedures on Human Rights
International Tribunals	For example, the ICJ's rulings on Namibia, and South Africa; Decisions on War Crimes and Crimes against Humanity by various tribunals
International Criminal Court	(ICC) est. 2002 by Rome Statute, the first permanent, treaty based, international criminal court established to help end impunity for the perpetrators of the most serious crimes of concern to the international community. The ICC is an independent international organization, and is not part of the United Nations system. Its HQ is at The Hague in the Netherlands.
UN System	UN Security Council	Although the Security Council is not a human rights body some of its resolutions have important human rights implications, such as its resolutions on apartheid in South Africa; and on Rhodesia unilateral declaration of independence.
	General Assembly	The General Assembly has played a significant role in the development of human rights through various resolutions the most well-known being the 1948 UDHR and resolutions against apartheid in South Africa
Non-Treaty based Bodies in the UN	Human Rights Council (HRC) – established in 2006. The HRC replaces the Commission on Human Rights (UNCHR) which was established in 1946. The HCR is the most important human rights body in UN system. It has two mechanisms for monitoring human rights: Resolution 1235 (1967) and 1503 (1970) procedures for investigating and reporting HR violations. HRC also has Special Procedures and Mandate Procedures to promote HR and rationalize mandates of various HR initiatives. · (UN) CSD – Commission for Social Development. · (UN) CSW – Commission for the Status of Women.
Treaty-based Committees in the UN	· (UN) CAT – Committee Against Torture (est. by the 1984 Convention Against Torture) · (UN) HRC – Human Rights Committee (est. by the 1966 Convention on Civil and Political Rights) · (UN) CESR – Committee on Economic and Social Cultural Rights. (est. by the 1966 Convention on Economic, Social and Cultural Rights) · (UN) CEDAW – Committee on the Elimination of Discrimination against Women. (est. by the 1979 Convention on the Elimination of all forms of Discrimination Against Women).
UN Functional Offices and Agencies	· UNHRC – UN High Commissioner for Refugees · ILO – International Labour Organization · UNESCO – UN Educational, Scientific and Cultural Organization. · UNICEF – UN International Children's Emergency Fund · WHO – World Health Organization

The Enforcement of International Human Rights

We conclude with a brief discussion of some key challenges to the enforcement of international human rights. The goal of the International Human Rights Regime is to make states meet certain internationally defined standards in the treatment of their own nationals, and make them do so from outside that state's domestic political and legal system. This creates two sets of problems:

First, any attempt to enshrine protection of international human rights essentially involves exceptions to, or derogations from, state sovereignty. Traditionally, only states are subjects of international law entitled to enjoy rights enforceable by law, as distinct from mere benefits. International law is generally only applicable to states, and does not normally create rights directly enforceable by individuals in courts. The question then is how can human rights be enforceable when individuals are not subjects of international law? Currently it is only within the human system of the Council of Europe (est. 1949) where individuals within the 47 member states have rights they can directly enforce in court. In all other regions of the world, individuals have to rely on states/governments to enforce international human rights, but in many cases it is these very states/governments themselves that are the violators of human rights. The irony is that international human rights standards can only be effective if each state makes these rules part of its own domestic laws. Thus, whatever human rights exist in international law, as with other aspects of the law that deal with individuals, these rights are at best derivative rights that can only be conferred by states (through treaty/custom).

However, the difficulties sovereignty creates for the enforcement of human rights should not be overstated. We have also noted in this course that the concept of sovereignty is not an absolute concept. A notion of sovereignty that treats it as absolute makes that concept useless. Sovereignty is a constitutive principle that defines the state, confers certain rights, and imposes certain obligations on states. To understand how sovereignty does this, we have to break the concept up into the specific rights and obligations it confers on states. We have noted how the concept of sovereign statehood on one hand created certain rights for states including the right to be free from external interference in matters that were essentially within their domestic jurisdiction. We also noted, on the other hand, that within this body of international law (customs and treaties) there were important exceptions that derogate from the notion of exclusive sovereignty by limiting what states could do within their domestic jurisdiction, including

a. jus cogens;

b. state responsibility;

c. treatment of aliens;

d. collective security measures authorized by the UN.

Thus, even within traditional international law, rules of law recognized important limitations on a state's right to exclusive sovereign jurisdiction.

The reality is that any state that ratifies a treaty is by the very fact of ratification derogating part of its sovereign authority to make unilateral decisions, and grants its treaty partners a right to intervene in the event that it fails to uphold its treaty obligations. Thus, even within the confines of traditional international law, there is room for international human rights. As noted in section 2.1, the real issues are political and moral -- whether human rights treaties provide enough incentives for states to take necessary actions against other states that violate the provisions of human rights treaties they have ratified.

The second set of challenges to the enforcement of human rights arises because human rights claims pit the individual against the state and against society. Human rights abuses, therefore, can be committed by the state or can result from societal/cultural practices that may not necessarily be endorsed or controlled by the state/government. International human rights law, however, focuses on the state as the medium through which human rights legislation and protections are to be upheld, and this may not always be effective, even if the state in question is willing to comply and makes human rights rules part of its own domestic laws.

The problem is, if human rights abuses result from societal/cultural beliefs and practices, the fact that a state enacts legislation prohibiting those practices may not achieve the desired effect. In such cases, is that state in violation of international law? For example, certain beliefs and practices such as the preference for male children in some parts of the world, have led to abuses of young girls including acts of infanticide. In many of the countries where these practices occur, governments have passed legislation banning the practice (e.g., India). Yet the practice still occurs. The point here is that in discussing the issue of enforcement of international human rights, attention needs to be paid to those acts that are state-sanctioned, and those acts that are society-sanctioned. Yet there is nothing in international human rights law that draws this distinction. This issue alerts us to the limits of law by itself as an instrument of social change.