Human Rights Promotion & Protection: Definitions & Conceptual Issues
The first section addresses the definition of human rights as well as of the different categories and generations of rights concerned. It also provides references to the main international and regional instruments referring to the different categories of human rights, as well as definitions for different terms and expressions used in reference to that topic. It also presents a brief history of human rights.
Human rights, following the manifest literal sense of the term, are ordinarily understood to be the rights that one has simply because one is human. As such, they are equal rights, because we either are or are not human beings, equally. Human rights are also inalienable rights, because being or not being human usually is seen as an inalterable fact of nature, not something that is either earned or can be lost. Human rights are thus "universal" rights in the sense that they are held "universally" by all human beings.
Source: Donnelly, Jack. The Relative Universality of Human Rights. Human Rights Quarterly 29 (2007): 282-283
Human rights have a series of key characteristics that distinguish them from other rights:1
A Conventional Definition of Human Rights
Human rights are commonly understood as being those rights which are inherent to the human being. The concept of human rights acknowledges that every single human being is entitled to enjoy his or her human rights without distinction as to race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.
The following are some of the most important characteristics of human rights:
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"Fundamental," "basic," "elementary," "essential," and "core" rightsThe notion of "fundamental rights" usually refers to such rights as the right to life and the inviolability of the person. The need to distinguish these rights stems from the concern that a broad definition of human rights may lead to the notion of "violation of human rights" losing some of its significance. The terms "elementary," "essential," "core" and "fundamental" human rights are also used.
Another approach is to distinguish a number of "basic rights," which should be given absolute priority in national and international policy. These include all the rights which concern people's primary material and non-material needs. If these are not provided, no human being can lead a dignified existence. Basic rights include the right to life, the right to a minimum level of security, the inviolability of the person, freedom from slavery and servitude, and freedom from torture, unlawful deprivation of liberty, discrimination and other acts which impinge on human dignity. They also include freedom of thought, conscience and religion, as well as the right to suitable nutrition, clothing, shelter and medical care, and other essentials crucial to physical and mental health.
"Classic" vs. "social" rightsOriginally, the differentiation of "classic" rights from "social" rights was meant to reflect the nature of the obligations under each set of rights. "Classic rights" were seen as requiring "the non-intervention of the state (negative obligation), and 'social rights' as requiring active intervention on the part of the state (positive obligations). In other words, classic rights entail an obligation for the state to refrain from certain actions, while social rights oblige it to provide certain guarantees."6 Two key principles are the progressive realization of economic, social, and cultural rights, and the use by the state of the maximum of its available resources. The Committee on Economic and Social Rights (CESR) has also articulated the absolute minimum that the state, however poor, must provide.7The Cold War ideological context contributed to polarize the debate as "classic" rights (civil and political rights) were perceived as championed by the West and "social" rights by the East. The evolution of international relations and international law, however, has made the instrumentalization of this distinction anachronistic, even though a similar debate has arisen with respect to cultural relativism of human rights. 8
Go to debate Human rights: universalism versus cultural relativism
"Individual" vs. "collective" rightsThis distinction has captured a lot of attention in some international debates along the second half of the twentieth century. It originally refers to the fact that some of the individual rights are exercised by people in groups. Freedom of association and assembly, freedom of religion and, more especially, the freedom to form or join a trade union, fall into this category. The collective element is even more evident when human rights are linked specifically to membership in a certain group, such as the right of members of ethnic and cultural minorities to preserve their own language and culture. "One must make a distinction between two types of rights, which are usually called collective rights: individual rights enjoyed in association with others, and the rights of a collective. The most notable example of a collective human right is the right to self-determination, which is regarded as being vested in peoples rather than in individuals.9 The recognition of the right to self-determination as a human right is grounded in the fact that it is seen as a necessary precondition for the development of the individual."10 It is generally accepted that collective rights may not infringe upon universally accepted individual rights, such as the right to life and freedom from torture. But this distinction has been at the core of debates surrounding the universality of human rights. Go to debate Human rights: universalism versus cultural relativism
Key references on civil and political rights
Universal Declaration of Human Rights
General Assembly Resolution 217 A (III) of December 1948
The International Covenant on Civil and Political Rights (ICCPR)
The ICCPR was adopted in 1966. It addresses the State's traditional responsibilities for administering justice and maintaining the rule of law. Many of the provisions in the Covenant address the relationship between the individual and the State. In discharging these responsibilities, States must ensure that human rights are respected, not only those of the victim but also those of the accused.
The Covenant has two Optional Protocols. The first Optional Protocol to the ICCPR establishes the procedure for dealing with communications (or complaints) from individuals claiming to be victims of violations of any of the rights set out in the Covenant. The Second Optional Protocol to the ICCPR envisages the abolition of the death penalty.
Unlike the Universal Declaration and the Covenant on Economic, Social and Cultural Rights, the Covenant on Civil and Political Rights authorizes a State to derogate from--in other words, restrict--the enjoyment of certain rights in times of an official public emergency which threatens the life of a nation. Such limitations are permitted only to the extent strictly required under the circumstances and must be reported to the United Nations. Even so, some provisions such as the right to life and freedom from torture and slavery may never be suspended.
The Human Rights Committee is the treaty body composed of independent experts that monitors implementation of and compliance with the ICCPR by States parties.
First, second and third "generation" of human rightsScholars and practitioners alike commonly refer to the division of human rights into three generations. This categorization was first proposed by Karel Vasak at the International Institute of Human Rights in Strasbourg. His division follows the principles of "Liberté, Égalité and Fraternité" of the French Revolution:11
First generation: Civil and political rights13
The term "civil right" is often used with reference to the rights set out in the first eighteen articles of the Universal Declaration on Human Rights (UDHR), almost all of which are also set out as binding treaty norms in the International Covenant on Civil and Political Rights (ICCPR). From this group, a further set of "physical integrity rights" has been identified, which concern the right to life, liberty and security of the person, and which offer protection from physical violence against the person, torture and other cruel and degrading treatment or punishment, arbitrary arrest, detention, exile, slavery and servitude, right to fair and prompt trial, interference with ones privacy and right of ownership, restriction of one's freedom of movement, and the freedom of thought, conscience and religion. There are also other provisions which protect members of ethnic, religious or linguistic minorities. Under Article 2, all States Parties undertake to respect and take the necessary steps to ensure the rights recognized in the Covenant 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.
In general, "political rights" are those set out in Articles 19 to 21 of the UDHR and also codified in the ICCPR (Articles 18, 19, 21, 22 and 25). They include freedom of expression, freedom of association and assembly, the right to take part in the government of one's country, and the right to vote and stand for election at genuine periodic elections held by secret ballot.
Key references on economic, social and cultural rights
Universal Declaration of Human Rights
General Assembly Resolution 217 A (III) of December 1948
The International Covenant on Economic, Social and Cultural Rights (ICESCR)
After 20 years of drafting debates, the ICESCR was adopted by the General Assembly in 1966 and entered into force in January 1976.
The Covenant embodies some of the most significant international legal provisions establishing economic, social and cultural rights, including, inter alia, rights relating to work in just and favorable conditions; to social protection; to an adequate standard of living including clothing, food and housing; to the highest attainable standards of physical and mental health; to education and to the enjoyment of the benefits of cultural freedom and scientific progress.
The Covenant also articulates the principle of progressive realization of economic, social, and cultural rights. Significantly, article 2 outlines the legal obligations which are incumbent upon States parties under the Covenant. States are required to take positive steps to implement these rights, to the maximum of their resources, in order to achieve the progressive realization of the rights recognized in the Covenant, particularly through the adoption of domestic legislation, The Committee on Economic and Social Rights (CESR) has also articulated the absolute minimum that the state, however poor, must provide.
The Committee on Economic, Social and Cultural Rights (CESR) is the treaty body composed of independent experts that monitors implementation of and compliance with the ICESCR by States parties.
Second generation: Economic, social and cultural rights14
In many respects, greater international attention has been given to the promotion and protection of civil and political rights than to the promotion and protection of social, economic and culturalrights, leading to the erroneous belief that violations of economic, social and cultural rights were not subject to the same degree of legal scrutiny and measures of redress. This view neglected the underlying principles of human rights"that rights are indivisible and interdependent, and therefore the violation of one right may lead to the violation of another. Economic, social and cultural rights are fully recognized by the international community and in international law, and are progressively gaining attention. These rights are designed to ensure the protection of people, based on the expectation that people can enjoy rights, freedoms and social justice simultaneously.
The economic and social rights are listed in Articles 22 to 26 of the UDHR, and further developed and set out as binding treaty norms in the International Covenant on Economic, Social and Cultural Rights (ICESCR). These rights provide the conditions necessary for a life of basic dignity, as well as prosperity and well-being. Economic rights refer, for example, to the right to work, which one freely chooses or accepts, the right to a fair wage, a reasonable limitation of working hours, and trade union rights. Social rights are those rights necessary for an adequate standard of living, including rights to health, shelter, food, social care, and the right to education (Articles 6 to 14 of the ICESCR). Cultural rights are listed in Articles 27 and 28 of UDHR: the right to participate freely in the cultural life of the community, to share in scientific advancement, and the right to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which one is the author (see also Article 15 of the ICESCR and Article 27 of the ICCPR).
Third generation: group and collective rights
Apart from the right to self-determination, the main third generation right that so far has been given an official human rights status is the right to development.15 The Vienna Declaration confirms the right to development as a collective as well as an individual right, with the individual being regarded as the primary subject of development. Recently, the right to development has been given considerable attention in the activities of the High Commissioner for Human Rights. The EU and its member states also explicitly accept the right to development as part of the human rights concept. Many linguistic and cultural rights (such as the right to use and be instructed in a minority language, or the right to cultural autonomy, for instance) guaranteed to the individual can also be considered as intrinsic community rights. 16
Other key international documents for the protection of human rights
Convention against Torture or Other Cruel, Inhuman or Degrading Treatment or Punishment:
Monitoring body: Committee Against Torture (CAT)
International Covenant on the Elimination of All Forms of Racial Discrimination (ICERD):
Monitoring body: Committee on the Elimination of Racial Discrimination (CERD)
Convention on the Elimination of All Forms of Discrimination against Women (CEDAW):
Monitoring body: Committee on the Elimination of Discrimination against Women (CEDW)
Convention on the Rights of the Child (CRC):
Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict
Monitoring body: Committee on the Rights of the Child (CRC)
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Customary international law (custom)Customary international law (or simply "custom") is the term used to describe a general and consistent practice followed by States deriving from a sense of legal obligation. Thus, for example, while the Universal Declaration of Human Rights is not in itself a binding treaty, some of its provisions have the character of customary international law.17 As such, custom is an important source of international law along with: treaties, general principles, judicial decisions and teachings.18
Declarations, recommendations etc. adopted by UN organsGeneral norms of international law principles and practices that most States would agree are often stated in declarations, proclamations, standard rules, guidelines, recommendations and principles. While they have no binding legal effect on States, they nevertheless represent a broad consensus on the part of the international community and, therefore, have a strong and undeniable moral force on the practice of States in their conduct of international relations. The value of such instruments rests on their recognition and acceptance by a large number of States, and, even without binding legal effect, they may be seen as declaratory of broadly accepted principles within the international community.19
Those instruments are sometimes qualified as "soft law." Some legal scholars and law professionals argue that they are actually gaining the force of "hard law" because of their near universal acceptance, and also because they are detailed developments of the broader treaty language obligations. To that extent, they may be viewed as playing a role similar to a law or regulation that puts into daily practice a constitutional provision.20
Human rights education"Human rights education can be defined as education, training and information aiming at building a universal culture of human rights through the sharing of knowledge, imparting of skills and molding of attitudes directed to:21
International Bill of RightsThe International Bill of Human Rights consists of the Universal Declaration of Human Rights, the International Covenant on Economic, Social and Cultural Rights, and the International Covenant on Civil and Political Rights and its two Optional Protocols.22
RatificationRatification is a States formal expression of consent to be bound by a treaty. Only a State that has previously signed the treaty (during the period when the treaty was open for signature) can ratify it. Ratification consists of two procedural acts: on the domestic level, it requires approval by the appropriate constitutional organ (usually the head of State or parliament). On the international level, pursuant to the relevant provision of the treaty in question, the instrument of ratification shall be formally transmitted to the depositary, which may be a State or an international organization such as the United Nations.23
States Party(ies)The expression refers to the States that have ratified a covenant or a convention and are thereby bound to conform to its provisions.
State responsibility for human rightsThe obligation to protect, promote and ensure the enjoyment of human rights is the prime responsibility of States, thereby conferring on States responsibility for the human rights of individuals. Many human rights are owed by States to all people within their territories, while certain human rights are owed by a State to particular groups of people: for example, the right to vote in elections is only owed to citizens of a State. State responsibilities include the obligation to take pro-active measures to ensure that human rights are protected by providing effective remedies to persons whose rights are violated, as well as measures against violating the rights of persons within its territory.24
Under international law, the enjoyment of certain rights can be restricted in specific circumstances. For example, if an individual is found guilty of a crime after a fair trial, the State may lawfully restrict a persons freedom of movement by imprisonment. Restrictions on civil and political rights may only be imposed if the limitation is determined by law, but only for the purposes of securing due recognition of the rights of others and of meeting the just requirements of morality, public order and the general welfare in a democratic society. Economic, social and cultural rights may be limited by law, but only insofar as the limitation is compatible with the nature of the rights and solely to promote the general welfare in a democratic society.25 It is important to distinguish between these "restrictions" and "derogations," the latter meaning the partial abrogation of a law.26 When a state derogates from a law, it enacts something which is contrary to it. While many rights are derogable, especially in situations of political emergencies or crises, there are some basic rights which are considered as non-derogable.
TreatyA treaty is an agreement by States to be bound by particular rules. International treaties have different designations such as covenants, charters, protocols,conventions, accords and agreements. A treaty is legally binding on those States which have consented to be bound by the provisions of the treaty.27 It is important to note that States can make reservations to international human rights treaties; some can have an important impact on the application of the treaty. The legitimacy and role of such reservations is a heavily contested issue.28
[Back to Top] 29 In other words, writing a history of human rights remains, in itself, a sensitive issue.
Go to debate Human rights: universalism versus cultural relativism
Written precursors to modern human rights thinking include the Magna Charta Libertatum (1215) and the English Bill of Rights (1689). Earlier documents specified rights, which could be claimed in the light of particular circumstances (e.g. threats to the freedom of religion), but they did not yet contain an all-embracing philosophical concept of individual liberty. Freedoms were often seen as rights conferred upon individuals or groups by virtue of their rank or status. In the centuries after the Middle Ages, the concept of liberty became gradually separated from status and came to be seen not as a privilege but as a right of all human beings.
But the concept of human rights itself emerged as an explicit category in the 18th century Age of Enlightenment. Every human being came to be seen as an autonomous individual, endowed by nature with certain inalienable fundamental rights that could be invoked against a government and should be safeguarded by it. Human rights were henceforth seen as elementary preconditions for an existence worthy of human dignity. The Enlightenment was decisive in the development of human rights concepts. The ideas of Hugo Grotius (1583-1645), and other fathers of modern international law attracted much interest in Europe in the 18th century. In parallel, different philosophers conceptualized the social contract theory: Thomas Hobbes (1588-1679), John Locke (1632-1704) and Jean-Jacques Rousseau (1712-1778). However, they differed in the amount of rights contracted away from the individual to the sovereign. Hobbes argued that the sovereign must take absolute control, while Locke and Rousseau maintained that many, if not most rights remained with the individual and, importantly, that the contract was reversible, i.e. could be rescinded by the population if the sovereign was not keeping to his part of the bargain. 30
The French Declaration on the Rights of Man and Citizen (1789), and the US Constitution and Bill of Rights (1791) are considered foundational documents in the history of the human rights movement. The American Declaration of Independence of 4 July 1776 was based on the assumption that all human beings are equal. It also referred to certain inalienable rights, such as the right to life, liberty and the pursuit of happiness. These ideas were also reflected in the Bill of Rights which was promulgated by the state of Virginia in the same year. The provisions of the Declaration of Independence were adopted by other American states, but they also found their way into the Bill of Rights of the American Constitution. The French Déclaration des Droits de l'Homme et du Citoyen of 1789, as well as the French Declaration of 1793, reflected the emerging international theory of universal rights and contained for the first time the term "human rights".
The atrocities of World War II put an end to the traditional view that states have full liberty to decide the treatment of their own citizens. The signing of the Charter of the United Nations (UN) on 26 June 1945 brought human rights within the sphere of international law. In particular, all UN members agreed to take measures to protect human rights.31 The Charter contains a number of articles specifically referring to human rights. Less than two years later, the UN Commission on Human Rights (UNCHR), established early in 1946, submitted a draft Universal Declaration of Human Rights (UDHR). The UN General Assembly (UNGA) adopted the Declaration in Paris on 10 December 1948, which passed without a single vote against it, including countries from every region of the world. This day was later designated Human Rights Day.
During the 1950s and 1960s, more and more countries joined the UN. Upon joining, they formally accepted the obligations contained in the UN Charter, and in doing so subscribed to the principles and ideals laid down in the UDHR. The UDHR is supported by a large number of international conventions (nine core human rights instruments) and their respective supervisory mechanisms, which together constitute the modern international human rights regime.
Human rights have also been receiving more and more attention at the regional level. In the European, the Inter-American and the African context, standards and supervisory mechanisms have been developed that have already had a significant impact on human rights compliance in the respective continents, and promise to contribute to compliance in the future:32
2. This was reaffirmed, for instance, in the Vienna Declaration and Programme of Action at the end of the UN World Conference on Human Rights (1993); see para. 5 of the Vienna Declaration and Programme of Action.
3. Jerome J Shestack, "The Philosophic Foundations of Human Rights," Human Rights Quarterly 20, no. 2 (1998): 202-204.
4. Comment by Ebrahim Afsah, 9 November 2008.
5. Comment by Bill O'Neill, 10 October 2008.
6. Sepulveda et al., Human Rights Reference Handbook (Cuidad Colon: University of Peace, 2004), 7.
7. Comment by Bill O'Neill, 10 October 2008.
8. Comment by Ebrahim Afsah, 9 November 2008.
9. See Articles 1 of the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights.
10. Human Rights Reference Handbook, 12-13.
11. Human Rights Reference Handbook, 13.
13. Ibid; see also United Nations Office of the High Commissioner for Human Rights (OHCHR) and United Nations Staff College, Human Rights: A Basic Handbook for UN Staff (Geneva, 2001).
14. Human Rights Reference Handbook, 8-10; see also Human Rights: A Basic Handbook for UN Staff:
15. Declaration on the Right to Development, adopted by the United Nations General Assembly on 4 December 1986, and the 1993 Vienna Declaration and Programme of Action (Paragraph I, 10).
16. Comment by Ebrahim Afsah, 9 November 2008.
17. Human Rights: A Basic Handbook for UN Staff, 5.
18. Article 38 (1) of the Statute of the International Court of Justice.
19. Ibid, 6-7.
20. Comment by Bill O'Neill, 10 October 2008.
21. United Nations Education, Scientific and Cultural Organization (UNESCO), Definition of Human Rights Education.
22. Office of the High Commissioner for Human Rights (OHCHR), Fact Sheet No.2 (Rev.1), The International Bill of Human Rights.
23. Human Rights: A Basic Handbook for UN Staff, 4.
24. Human Rights: A Basic Handbook for UN Staff, 5.
26. Comment by Bill O'Neill, 10 October 2008.
27. Ibid, 4.
28. Eric Neumayer, Qualified Ratification: Explaining Reservations to International Human Rights Treaties (July 2006).
29. Comment by Ebrahim Afsah, 9 November 2008. See also Naz K. Modirzadeh. "Taking Islamic Law Seriously: INGOs and the Battle for Muslim Hearts and Minds," Harvard Human Rights Journal 19: (191-233).
30. Comment by Ebrahim Afsah, 9 November 2008.
31. Article 1-3 of the UN Charter: [The United Nations is mandated] "To achieve international co-operation in solving international problems of an economic, social, cultural, or humanitarian character, and in promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language, or religion."
32. The Association of SouthEast Asian Nations (ASEAN) is in the process of adopting a regional human rights charter.