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What are Human Rights? The Nature & Sources of Human Rights

Updated On: Jan 28, 2009

What are Human Rights? The Nature & Sources of Human Rights

I.    The Concept of Human Rights

II.    International Bill of Human Rights
A.    Universal Declaration of Human Rights
B.    Economic, Social, and Cultural Rights
C.    Civil and Political Rights

III.    Universal Human Rights? 
A.    Different Generations of Rights
B.    Asian Values
C.    Indivisible and Interdependent Rights

IV.    Sources

I.    The Concept of Human Rights

Human rights are the rights a person has simply because he or she is a human being.  They are the basic entitlements or minimum standards to be met for individuals to live with dignity.   

Most notably, human rights are: 
•    founded on the respect for the dignity and worth of each person; 
•    universal in that they are applied equally without discrimination to all people;
•    inalienable in that no one can have their human rights take away (though they can be limited); and 
•    indivisible, interrelated, and interdependent in that all human rights are equal in importance and equally essential for the respect and dignity of each person.

Human rights are formally expressed and legally guaranteed by international human rights law.  The law obligates states to ensure and implement human rights and/or restrains states from violating human rights.  Their proponents argue that human rights law does not establish human rights, as human rights are inherent entitlements that adhere to individuals even if official laws or actors do not recognize or protect them.   

II.    International Bill of Human Rights

The International Bill of Human Rights is said to be “a summary statement of the minimum social and political guarantees internationally recognized as necessary for a life of dignity in the contemporary world.” (Donnelly 1998).  It consists of the Universal Declaration of Human Rights (UDHR), the International Covenant on Economic, Social and Cultural Rights (ICESCR), and the International Covenant on Civil and Political Rights (ICCPR) and its two Optional Protocols.

The Universal Declaration of Human Rights (UDHR) is the primary UN document articulating human rights standards and norms.  At inception, the declaration was intended to be a nonbinding statement of objectives to be followed by all states.  However, now, many if not all of its provisions are accepted as declaratory of customary international law, i.e. law that is binding on all states as it is derived from the consistent conduct of states acting out of the belief that the law requires them to act that way.

The International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social, and Cultural Rights (ICESCR) translate into legally binding instruments the rights articulated in the Universal Declaration of Human Rights (UDHR).

The ICCPR and ICESCR were both adopted in 1966 and entered into force in 1976. Approximately one-quarter of UN Members, including Singapore, are not party to the covenants and accordingly are not bound by their provisions.  

 

A.    Universal Declaration of Human Rights

The Universal Declaration of Human Rights (UDHR) is the first international instrument to articulate the rights to be accorded to all people.  On 10 December 1948, the UN General Assembly unanimously adopted the Declaration as an enduring international commitment to human rights.  Recoiling from the massacres of the Holocaust and desiring peace in the aftermath of World War II, the UDHR represented an unprecedented step as states acknowledged the treatment of individuals was not solely subject to state governance.

The Declaration represents the global consensus or “common standard” of entitlements for all persons.  It comprises a broad range of rights that are drafted with sufficient breadth to cover people of all cultures and religions.  It does not distinguish between or elevate civil-political versus socio-economic rights.  Instead, the Declaration affirms the equality and inalienability of all its codified rights and freedoms.

The UDHR’s main provisions are: (see also Table 1) [isn’t this repetitive?]

•    Equality of rights without discrimination (art. 1 & 2); 
•    Life (art. 3 & 6); 
•    Liberty and security of person (art. 3 & 9); 
•    Protection against slavery (art. 4); 
•    Protection against torture and cruel and inhuman punishment (art. 5); 
•    Recognition as a person before the law (art. 6);
•    Equal protection of the law (art. 7); 
•    Access to legal remedies for rights violations (art. 8); 
•    Protection against arbitrary arrest or detention (art. 9); 
•    Hearing before an independent and impartial judiciary (art. 10); 
•    Presumption of innocence (art. 11); 
•    Protection against ex post facto laws (art. 11); 
•    Protection of privacy, family, and home (art. 12); 
•    Freedom of movement and residence (art. 13); 
•    Seek asylum from persecution (art. 14); 
•    Nationality (art. 15); 
•    Marry and found a family (art. 16); 
•    Own property (art. 17); 
•    Freedom of though, conscience, and religion (art. 18); 
•    Freedom of opinion, expression, and the press (art. 19); 
•    Freedom of assembly and association (art. 20); 
•    Political participation (art. 21); 
•    Social security (art. 22); 
•    Work under favorable conditions (art. 23)
•    Free trade unions (art. 23); 
•    Rest and leisure (art. 24);
•    Food, clothing and housing (art. 25); 
•    Health care and social services (art. 25); 
•    Special protections for children (art. 25); 
•    Education (art. 26); 
•    Participation in cultural life (art. 27); 
•    A social and international order needed to realize rights (art. 28).

The effect of UDHR has exceeded its drafters’ initial conception of it as an articulation of shared values.  The Declaration is now heralded as the most authoritative statement of international human rights norms. It has become a point of reference for state constitutional questions and an interpretive tool or gage for accepted international practice. And as stated above, some human rights proponents would argue that  many of the rights that it declares are part of customary international law or at minimum that the declaration is evidence of custom.  However, the UDHR is not a legally binding document unlike the ICCPR and ICESCR.

For Singapore, while it was not a state when the Declaration was adopted, its leaders have referred positively to the UNHDR as the basis of international expectations of human rights.

See Universal Declaration of Human Rights: http://www.unhchr.ch/udhr/

B.    Civil and Political Rights

The ICCPR unequivocally obligates contract parties to promote and protect important civil and political rights.  State parties are to respect and ensure the individual enjoyment of the rights recognized; legislate or otherwise give effect to the rights promulgated; and effectively remedy any violations of rights or freedoms suffered by any person.

The ICCPR has two Optional Protocols.  The First Optional Protocol creates an individual complaints mechanism.  The Second Optional Protocol abolishes the death penalty.  

The ICCPR currently has 155 state parties.  Singapore is not a party.

The Rights:

The ICCPR details the basic civil and political rights of individuals and states.

Among the rights it recognizes are:  (see also Table 1)

•    Self-determination (art. 1); 
•    Freely own, trade, and dispose of property; subsistence (art. 1); 
•    Legal recourse when rights are violated (art. 2); 
•    Right to life; no arbitrary deprivation of life; no death penalty except for the most serious crimes (art. 6); 
•    Protection against torture or cruel, inhuman, or degrading treatment (art. 7); 
•    Protection against slavery, involuntary servitude, or forced or compulsory labour (art. 8); 
•    Liberty and security of person; protection against arbitrary arrest or detention (art. 9); 
•    Humane treatment when detained or imprisoned (art. 10); 
•    Freedom of movement (art. 12); 
•    Equality before the law; fair and public trial; presumption of innocence (art. 14); 
•    Protection of privacy, family, home (art. 17);  
•    Freedom of thought, conscience, and religion (art. 18); 
•    Freedom of opinion, expression, and the press (art. 19);
•    Protection against advocacy of racial & religious hatred (art. 20);  
•    Freedom of peaceful assembly and association (art. 21 & 22);
•    Marry and found a family (art. 23); 
•    Special protection for children (art. 24); 
•    Political participation; vote (art. 25); 
•    Equality before the law and equal protection; no discrimination based on race, sex, color, national origin, or language (art. 26); 
•    Protection of minority culture (art. 27).

See International Covenant on Civil and Political Rights: http://www.ohchr.org/english/law/ccpr.htm

Implementation:

Implementation of the ICCPR is monitored primarily through state reports to the Human Rights Committee.   

State parties must submit regular reports on the measures they have taken to give effect the promulgated rights.  HRC examine each state report and addresses it concerns and recommendations to the state parties in “concluding observations.”

In addition, article 41 of the ICCPR enables states to recognize the competence of the HRC to consider inter-state complaints.  

Also, the First Optional Protocol to the Covenant provides for an individual complaint procedure. Any individual whose rights under the ICCPR have been violated by a state that has ratified the Optional Protocol can present a complaint to the HRC so long as effective means of domestic redress have been exhausted.

C.    Economic, Social, and Cultural Rights

The International Covenant on Economic, Social, and Cultural Rights (ICESCR) charges state parties to “take steps,” whether individually or through international cooperation, to the extent of its available resources to achieve “progressively” the full realization of a wide range of economic, social, and cultural rights.

There are 152 parties to the ICESCR.  Singapore is not a party.

The Rights:

The ICESCR is the foundational treaty on economic, social, and cultural rights.  

Among the rights it recognizes are: (see also Table 1)

•    Self-determination (art. 1);
•    Equality of rights without discrimination (art. 2 and 3);
•    Rest and leisure (art. 7);
•    Work under favourable conditions (arts. 6 and 7);
•    Form and join trade unions (art. 8); 
•    Social security (art. 9); 
•    Protection of the family, mothers, and children (art. 10); 
•    An adequate standard of living, including adequate food, clothing and housing (art. 11); 
•    The highest attainable level of health and health care (art. 12); 
•    Education (art. 13); 
•    Free and compulsory primary education (art. 14); 
•    Take part in cultural life; benefit from scientific progress: and benefit from the protection of scientific, literary or artistic production of which one is the author (art. 15).

See International Covenant on Economic, Social and Cultural Rights: http://www.aprendelo.com.br/rec/international-covenant-on-economic-social-and-cultural-rights.html

Implementation:

The Committee on Economic, Social, and Cultural Rights (CESCR) monitors implementation of the ICESCR by its state parties.  Implementation is primarily by state reports.  State parties submit periodic reports detailing how ESC rights are being advanced.  These reports may serve as a basis for UN assistance, e.g. technical assistance, to help the state achieve the rights.    

The rights articulated in the ICESCR have been slow to achieve international consideration in part because of their conception as secondary or lesser rights.

V.    Universal Human Rights?

International debate has raged about whether there is or should be a hierarchy of human rights, i.e. whether civil and political rights are paramount to social, economic, and cultural rights or vice versa.

Generally, the dispute juxtaposes the principle of universal, indivisible, and interdependent human rights against arguments forwarding an order of priority between categories of rights.  

In specific, the dominant, liberal Western view associates human rights with civil and political rights and de-emphasizes social, economic, and cultural rights and other collective rights.  

Alternatively, in opposition to a perceived Western hegemony over the content of human rights, ASEAN states forwarded an “Asian values” argument that asserted civil and political freedom must play second fiddle to economic development.

A.    Dominant Liberal Hierarchy of Rights

The dominant view of human rights, often associated with the liberal Western perspective, asserts the hierarchical ascendance of civil and political rights.  

According to the three generations of human rights paradigm, states in time progressively move from paramount “first generation” rights to other “second generation” and “third generation” rights that offer broader definitions of human rights that are more idealistic and accordingly less realizable.

In brief, “first generation” rights are civil and political rights, such as the right to life, liberty, and a fair trial.  “Second generation” rights are economic, social, and cultural rights, such as the right to education, appropriate housing, and adequate leisure and rest.  “Third generation” rights are effectively group or collective rights, such as the right to self-determination and an environment conducive of development.  

The priority of “first generation” civil and political rights is justified on several grounds.  Civil and political rights are perceived to be easier to legislate for while certain economic and social rights, e.g. right to education and housing, are contingent on sufficient resources, i.e. the injection of financial and technical aid into a state’s economy for their implementation.  Similarly, “negative” civil and political rights are seen as more readily attainable than “positive” economic and social rights.  A “negative” right is a right not to be subjected to an action of the state or others.  A “positive right” is a right to be provided something by the state or others.  As such, “negative” civil and political rights forbid certain actions and accordingly deserve priority as their violation involves a direct injury.  In contrast, “positive” economic and social rights require certain actions, i.e. provision of goods or services, and their violation merely involves an inability or unwillingness to confer a benefit.

Evidence of this rights hierarchy can be seen in international covenants and enforcement mechanisms.  For example, the ICCPR obligates state parties to “respect and ensure to all individuals within its territory... the rights recognized in the present Covenant.”  On the other hand, the ICESCR merely commits signatories to “take steps... to the maximum of its available resources, ... to achieving progressively the full realization of the rights recognized in the present Covenant...”  In addition, the preoccupation by major human rights NGOs on civil and political rights and the consignment of economic and social matters in the U.N. to development agencies, separate and apart from the human rights organs, typify the dominant liberal Western perspective.

B.    Asian Values: “Liberty trade-off”

In response to perceptions of a western-dominated international human rights discourse, spokesman from some ASEAN states, e.g. Singapore and Malaysia, championed an alternative “Asian values” conception of human rights.

The “Asian values” argument rests on several central tenants.  First, human rights are said to be culturally specific.  In other words, though many human rights are accepted as universal, states will differ in their understanding and practice of human rights according to their history, social system, cultural traditions, and economic development.  Accordingly, in Asian states, historical-cultural legacies dictate a more communitarian outlook on human rights, i.e. the precedence of duty to the community over individual rights.  Also, Asian societies are said to proceed by “consensus” and not conflict, favoring cooperative versus coercive measures for human rights, and trusting and enhancing as opposed to suspecting the authority and dominance of state leaders.  Lastly (and the focus here), “Asian values” claims that social and economic rights take precedence over civil and political rights.

Termed the “liberty trade-off” or the “Lee Kuan Yew hypothesis” of rights and development, this tenant of “Asian values” asserts that Asian governments are justified in restricting civil and political rights in some circumstances in favor of social stability and economic growth.  Subsistence is argued to be of the most fundamental importance.  Civil and political rights are immaterial when people are destitute and society is unstable.  Accordingly, as luxuries to be enjoyed once there is social order, civil and political liberties must be temporarily suspended so as to not inhibit the government’s delivery of economic and social necessities and so as to not threaten or destroy future development plans.  In sum, certain civil and political freedoms must be “traded off” for the social stability and discipline required for economic growth.

C.    Indivisible and Interdependent Human Rights

Nonetheless, most human rights proponents insist that because human rights are literally the rights one has simply because one is a human being, all human rights are universal, indivisible, and interdependent.  

The dichotomy between civil and political rights and economic, social, and cultural rights was in fact largely the product of Cold War political and ideological divisions between the “capitalist West” and the “socialist East.”  The end of the Cold War ushered in a increased focus on the equal promotion of human rights.  Both social and economic rights and civil and political rights have grown in the last few decades.  In fact, in 1993, 171 states adopted by consensus the Vienna Declaration and Programme of Action that stressed the indivisibility and equal implementation of human rights.   It reads in part:  

All human rights are universal, indivisible and interdependent and interrelated.  The international community must treat human rights globally in a fair and equal manner, on the same footing, and with the same emphasis.  While the significance of national and regional particularities and various historical, cultural and religious backgrounds must be borne in mind, it is the duty of States, regardless of their political, economic, and cultural systems, to promote and protect all human rights and fundamental freedoms. (Vienna Declaration 1993).

This equal pursuit of human rights is echoed by academics and NGOs alike who assert that effective implementation of civil and political rights is allied with respect for economic, social, and cultural rights.  Economic and social progress allows for the entrenchment of the basic institutions necessary, e.g. administrative and judicial bodies, for the practice of civil and political liberties, e.g. the rights to a fair trial.  Moreover, economic and social development enables and equips the citizenry with the literacy and education needed for their effective political participation.  

In addition, in opposition to the “Lee Kuan Yew hypothesis,” academics argue that civil and political rights can fuel social and economic growth.  The exercise of civil and political freedoms, e.g. the right to vote and freedom of speech, calls governments to attend to real economic needs and immediately respond to acute suffering.  The right of political participation fortifies the government’s public mandate to continue to work for greater prosperity.  In sum, civil and political rights and economic and social rights reinforce one another and together ensure greater respect for human dignity and well-being.

VI.    Sources

International Covenant on Civil and Political Rights (adopted 16 December 1966; entry into force 23 March 1976).

International Covenant on Economic, Social, and Cultural Rights (adopted 16 December 1966; entry into force 3 January 1976).

Universal Declaration of Human Rights (adopted 10 December 1948).  

Vienna Declaration and Programme of Action. World Conference on Human Rights (14-25 June 1993).

Craven, Matthew C.R.. The International Covenant on Economic, Social, and Cultural Rights: A Perspective on its Development. Oxford: Clarendon Press, 1995.

Donnelly, Jack. International Human Rights – Second Edition. Oxford: Westview Press, 1998.

Donnelly, Jack. Universal Human Rights In Theory & Practice 2d Edition. Ithaca: Cornell University Press, 2003.

Li, Xiaorong. “ ‘Asian Values’ and the Universality of Human Rights.” Report from the Institute for Philosophy and Public Policy. Vol. 16, No. 2 (Spring 1996).

Office of the United Nations High Commissioner for Human Rights. Economic, Social and Cultural Rights – Handbook for National Human Rights Institutions. New York and Geneva: United Nations, 2005.  

Peerenboom, Randall. “Beyond Universalism and Relativism: The Evolving Debates about ‘Values in Asia.’” 14 Indiana International and Comparative Law Review 1 (2003).

Sen, Amartya. “Democracy as a Universal Value.” Journal of Democracy (1999).

Sen, Amartya. “What Lee Kuan Yew and Li Peng don’t understand about Asia.” The New Republic 14 July 1997.

Smith, Rhona K.M.. Textbook on International Human Rights. Oxford: Oxford University Press, 2003.  

Tay, Simon S.C.. “Human Rights, Culture, and the Singapore Example.” 41 McGill Law Journal 743 (August 1996).

Tay, Simon S.C. and Yen, Goh Chien. “Human Rights Revisited in the Asian Crisis.” 3 Singapore Journal of International and Comparative Law 26 (1999).

Yasuaki, Onuma. “Towards an Intercivilizational Approach to Human Rights.” The East Asian Challenge for Human Rights. Ed. Bauer and Bell. Cambridge University Press, 1999: 103-123.

“International Covenant on Civil and Political Rights (ICCPR).” Office of the United Nations High Commissioner for Human Rights:http://www.ohchr.org/english/countries/ratification/4.htm

“Simplified version of the Universal Declaration of Human Rights.”  Office of the United Nations High Commissioner for Human Rights:http://www.ohchr.org/english/about/publications/docs/abc-annexes.pdf

“UDHR Introduction.” Columbia Center for New Media Teaching and Learning: http://ccnmtl.columbia.edu/projects/mmt/udhr/

“Universal Declaration of Human Rights.”  Franklin and Eleanor Roosevelt Institute: http://www.udhr.org/index.htm

“Universal Declaration of Human Rights: A Magna Carta for all humanity.”  Office of the High Commissioner for Human Rights:http://www.unhchr.ch/udhr/miscinfo/carta.htm

“Universal Declaration of Human Rights.” Office of the High Commissioner for Human Rights: http://www.unhchr.ch/udhr/

“World Conference on Human Rights: 14-25 June 1993 Vienna, Austria.” Office of the United Nations High Commissioner for Human Rights:http://www.unhchr.ch/html/menu5/wchr.htm




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