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Kinds And Nature Of Human Rights
Rights can be of many kinds, such as legal rights, moral rights, civil rights, political rights, social rights, economic rights, cultural rights and so on. Those rights which are provided in law and protected by it are called legal rights. Enforcement of rights is important. But it is quite possible to have a right to something without the right being enforced. For example, if my car is stolen and the thief is not caught or arrested, I still have a right to car.
Three kinds of human rights have emerged at the international level. They are: Civil and Political rights, Economic, Social and Cultural rights and group/solidarity rights. The UDHR and ICCPR recognize many civil and political rights, such as right to life, liberty and security of persons, prohibition of slavery, torture, arbitrary arrest, detention or exile, right to fair trial, freedom of movement, religion, freedom of expression, right to privacy, right to seek asylum, right to nationality etc. These rights are sometimes known as first generation rights, as they found their first formulation in the Western socio-political thought and governance in 17th and 18th centuries.
In the 1970s another set of rights have evolved at the international level. They are known by different names – third generation rights, group rights and collective rights. Such rights are the following:
The right to development, which, however, is also seen as a right of individuals.
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- The right to peace
- The right to clean natural environment
- The right to one’s own natural resources
- The right to one’s own cultural heritage
It should be noted that the term “generation” of rights is a misnomer. It suggests a succession of phenomena, whereby a new generation takes the place of the previous one. That is, however, not the case with the three generations of human rights. On the contrary, the idea is rather that the three “generations” exist and be respected simultaneously. Moreover, there is the curious phenomenon that one particular right – that of self-determination – belongs both to the first and the second generations. It needs to be noted that, according to the Vienna Declaration and Program of Action, 1993, all rights are indivisible, interdependent and essential. In fact, the term generation of rights is not coined by the United Nations. It is suggested that the word “generation” should be replaced by “categories”.
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Nature Of Human Rights
Following salient features mark the concept of human rights.
1- Human rights are universal moral rights; they belong to everybody because they are human. By definition, rights are not earned, bought or inherited. They are inherent in human dignity. They are inalienable.
2- One of the guiding principles is that rights are available to all persons in the State irrespective of race, color, sex, language, religion, political or other opinion, national or social origin, property or other status [Article 2 of the UDHR] . They are universally applicable to all persons. In other words, non-discrimination is an important principle of contemporary human rights.
3- They are universal in the sense that they transcend the national boundaries or ideologies. They are designed to be culturally and ideologically neutral; they are not specifically liberal or socialist, Eastern or Western, Northern, developed or developing, Christen, Buddhist, Islamic or Hindu.
4- The concept of human rights is comprehensive in its nature and content. It includes all categories of rights, such as civil and political, economic, social and cultural and even the newly emerging group or collective rights like, rights of minorities, indigenous peoples, right to development, right to peace and right to clean environment etc. In fact, the catalogue of rights is very detailed and comprehensive. The list of rights is expanding everyday. Moreover, no catalogue elaborating specific human rights will ever be exhaustive or final. The content of human rights goes hand in hand with the state of moral consciousness, or civilizational development at any given time in history.
5- Also, all rights and freedoms are indivisible and interdependent. The United Nations does not rank them in any hierarchy or any order of priority. Though we may classify rights in different categories, they are all complementary to each other. They are also inter-related. No set of rights has priority over the other.
6- Rights are not absolute or unlimited. Some of them can be suspended during war or public emergency. Justifiable and reasonable limitations can be imposed on their exercise, which are necessary to protect national security, public order, public health or morals or the rights and freedoms of others.
Evolution Of Human Rights – Development At Domestic Level
The idea of “rights” and “duties” of citizens is as old as the concept of the State, in fact as old as human species. As man is a social being and cannot live outside society [ since he/she is not self-sufficient for one’s needs ], the problem of rights arose involving man’s relations with other individuals in a society, and his relations with State/government. Through these relationships men evolved certain norms of social behavior, which got crystallized, over centuries’ struggles, into what we call today as human rights. One may find their origin in ancient Greek and Roman political systems in Europe, Confucian system in China, the Islamic political system in the Muslim world and the “Panchayat” system in India. But the concept of rights in those systems was not fully developed and understood in the sense we know it today.
Many important events and revolutions contributed towards the development of human rights. First, the earliest charters of human rights are to be found among the three British constitutional documents, namely, the Magna Carta [1215], the Petition of Rights [1628] and the Bill of Rights [1689] adopted after the Glorious Revolution of 1688. These three documents were the forerunners of the modern bills of rights. They imposed restrictions on the powers of the King and his arbitrary rules. It may be recalled that in the 17th century England there were conflicts and tensions between the Parliament and the King over the latter’s arbitrary rule. These struggles led to the “Glorious Revolution” of 1688. This revolution is also known as Bloodless Revolution. James II, the King was forced to abdicate the throne. Fearing for his life the King fled the country paving the way for the accession to the throne of William [ of Orange ] III and Mary II [ the King’s daughter who sided with the Parliament in this struggle ]. Following the revolution the Parliament passed the Bill of Rights in 1689. This Bill declared illegal the claimed suspending and dispensing powers of the Crown. It prohibited the levying of taxes or the maintenance of standing army in peacetime by the Crown without Parliamentary consent. The Bill also provided that “excessive bail ought not to be required, nor excessive fines imposed, nor cruel and unusual punishment inflicted”. It further provided that “jurors ought to be duly impaneled and returned” and that “all grants and promises of fines and forfeitures of particular persons before convictions are illegal and void”. Moreover, it may be noted that the Glorious Revolution provided a precedent that rulers could be removed by popular will if they failed to observe the requirements of constitutional legitimacy.
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Important Declaration Of Rights
It was in the late 17th and the 18th centuries that the necessity for a set of written guarantees of human freedoms was felt as a new philosophy of governance. The dignity and rights of man was the dominant theme of political philosophy of the 18th century. This theme flowered into practical significance with such historic documents as the Virginia Declaration of Rights, 1776, the American Declaration of Independence, 1776, the French Declaration of the Rights of Man and Citizen, 1789 and of more lasting importance, the series of Amendments to the U.S. Constitution, adopted in 1791 as the American Bill of Rights. Let us elaborate the rights proclaimed in these documents.
The American Declaration of Independence contains ideas of human rights, such as:
That all men are created equal, that they are endowed by their creator with certain unalienable rights that among these are life, liberty and pursuit of happiness… that to secure these rights, Governments are instituted among men, deriving their just powers from the consent of the governed. That whenever any form of government becomes destructive of these ends, it is the right of the people to alter or abolish it.
The Virginia Declaration of Rights included specific liberties that were to be protected from State interference. These included freedom of press, the free exercise of religion and the obligation that no person should be deprived of their liberty except by the law of land or the judgment of their peers. The Virginia Declaration had a great influence on the drafters of the U.S. Constitution [1787], as these minimum rights were included in it subsequently.
The French Declaration of Rights of Man and Citizen, 1789, recognized many rights, such as, all men are born equal; the State shall preserve the natural rights of man, which are liberty, property, security and resistance to oppression; no one may be indicted, arrested or detained except in cases determined by law; all men should be presumed innocent until judged guilty; freedom of thought, opinion and press; freedom of religion; no taxes without consent of all citizens; no one shall be denied right to property except for an obvious requirement of public necessity, certified by law, and on condition of just compensation in advance. The Declaration proclaimed that liberty consists in the ability to do whatever does not harm others; hence the exercise of rights of each man has no limits except those which assure to other members of society for the enjoyment of the same rights. Law can only determine these limits. Therefore, it is generally said that my right to swing my hand ends where someone’s nose begins.
The Bolshevik Revolution of 1917 of Soviet Russia was another milestone in the development of the modern concept of rights. It introduced socio-economic dimensions to the concept of rights, which were neglected in the events and documents of English, American and French revolutions. While the three revolutions emphasized the first generation of civil and political rights [ which are also called negative rights ], the October revolution of Russia popularized socio-economic rights which are positive rights. These rights are called positive because their implementation requires resources and positive action by the State.
Thus it should be acknowledged that each of these declarations, events and revolutions discussed above have made important contributions in advancing and shaping the concept of human rights. However, being product of their times and specific circumstances, they lacked totality of the concept and were narrow in their scope and applications. For instance, Magna Carta yielded concessions [ not rights ] only to the feudal lords, though it set limitations on arbitrary rule and laid the foundation for the rule of law. The American Declaration and Bill of Rights were applicable only to those who constituted what was abbreviated as WASP [ White, Anglo-Saxon and Protestant ]. Slaves did not have rights in USA until slavery was abolished in 1864, and the rights of women were not part of the conception of rights at the time of American Revolution. Similarly, although French Revolution was more egalitarian than the American, the question of the rights of women was raised, only to be quickly suppressed, and slavery was abolished, only to be restored by Napoleon. Moreover, Western States like United Kingdom and France did not extend the notion of rights to the “subject” people in their colonies. In sum, human rights had not become universal during then.
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