Human rights
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Human rights refers to "the basic rights and freedoms to which all humans are entitled"[1] Examples of rights and freedoms which are often thought of as human rights include civil and political rights, such as the right to life and liberty, freedom of expression, and equality before the law; and social, cultural and economic rights, including the right to participate in culture, the right to work, and the right to education.
| “ | 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. | ” |
| —Article 1 of the United Nations Universal Declaration of Human Rights (UDHR)[1] | ||
History of human rights
The history of human rights covers thousands of years and draws upon religious, cultural, philosophical and legal developments throughout recorded history. Several ancient documents and later religions and philosophies included a variety of concepts that may be considered to be human rights.
The Cyrus Cylinder
The Cyrus Cylinder has been described as the world’s first charter of human rights,[1][1][1] "predating the Magna Carta by more than one millennium".[1] A replica of the cylinder was presented to the United Nations by Iran in 1971 and is kept at the United Nations Headquarters in New York City in the second floor hallway, between the Security Council and the Economic and Social Council chambers.[1] Despite its symbolic importance as the "first charter of human rights", it in fact reflects a long tradition in Mesopotamia where, from as early as the third millennium BC, kings began their reigns with declarations of reforms.[1][1]
Constitution of Medina
The Constitution of Medina, also known as the Charter of Medina, was drafted by Muhammad in 622. It constituted a formal agreement between Muhammad and all of the significant tribes and families of Yathrib (later known as Medina), including Muslims, Jews, and pagans.[1][1] The document was drawn up with the explicit concern of bringing to an end the bitter inter tribal fighting between the clans of the Aws (Aus) and Khazraj within Medina. To this effect it instituted a number of rights and responsibilities for the Muslim, Jewish and pagan communities of Medina bringing them within the fold of one community-the Ummah.[1]
The Constitution established the security of the community, religious freedoms, the role of Medina as a haram or sacred place (barring all violence and weapons), the security of women, stable tribal relations within Medina, a tax system for supporting the community in time of conflict, parameters for exogenous political alliances, a system for granting protection of individuals, a judicial system for resolving disputes, and also regulated the paying of blood-wite (the payment between families or tribes for the slaying of an individual in lieu of lex talionis).
Magna Carta
The Magna Carta is an English charter originally issued in 1215. The Magna Carta influenced the development of the common law and many constitutional documents, such as the United States Constitution, especially its Bill of Rights, and is considered one of the most important legal documents in the history of democracy, being one of the most significant early influences on the extensive historical process that led to the rule of constitutional law today.
The Magna Carta was one of the first legal documents to limit the power of government in order to protect the rights of its citizens. For modern times, the most enduring legacy of the Magna Carta is considered the right of habeas corpus. This right arises from what are now known as clauses 36, 38, 39, and 40 of the 1215 Magna Carta. The Magna Carta also included the right to due process.
Pre World War I
Two major revolutions occurred during the 18th century, in the United States (1776) and in France (1789). The Virginia Declaration of Rights of 1776 set up a number of fundamental rights and freedoms. The later United States Declaration of Independence includes concepts of natural rights and famously states "that all men are created equal, that they are endowed by their Creator with certain unalienable rights, that among these are life, liberty and the pursuit of happiness." Similarly, the French Declaration of the Rights of Man and Citizen defines a set of individual and collective rights of the people. These are, in the document, held to be universal - not only to French citizens but to all men without exception.
Philosophers such as Thomas Paine, John Stuart Mill and Hegel expanded on the theme of universality during the 18th and 19th centuries. In 1831 William Lloyd Garrison wrote in a newspaper called The Liberator that he was trying to enlist his readers in "the great cause of human rights"[1] so the term human rights probably came into use sometime between Paine's The Rights of Man and Garrison's publication. In 1849 a contemporary, Henry David Thoreau, wrote about human rights in his treatise On the Duty of Civil Disobedience [1] which was later influential on human rights and civil rights thinkers. United States Supreme Court Justice David Davis, in his 1867 opinion for Ex Parte Milligan, wrote "By the protection of the law, human rights are secured; withdraw that protection and they are at the mercy of wicked rulers or the clamor of an excited people."[1]
Many groups and movements have managed to achieve profound social changes over the course of the 20th century in the name of human rights. In Western Europe and North America, labour unions brought about laws granting workers the right to strike, establishing minimum work conditions and forbidding or regulating child labour. The women's rights movement succeeded in gaining for many women the right to vote. National liberation movements in many countries succeeded in driving out colonial powers. One of the most influential was Mahatma Gandhi's movement to free his native India from British rule. Movements by long-oppressed racial and religious minorities succeeded in many parts of the world, among them the civil rights movement, and more recent diverse identity politics movements, on behalf of women and minorities in the United States.
The foundation of the International Committee of the Red Cross, the 1864 Lieber Code and the first of the Geneva Conventions in 1864 laid the foundations of International humanitarian law, to be further developed following the two World Wars.
The World Wars and after
The League of Nations was established in 1919 at the negotiations over the Treaty of Versailles following the end of World War I. The League's goals included disarmament, preventing war through collective security, settling disputes between countries through negotiation, diplomacy and improving global welfare. Enshrined in its Charter was a mandate to promote many of the rights which were later included in the Universal Declaration of Human Rights.
At the 1945 Yalta Conference, the Allied Powers agreed to create a new body to supplant the League's role. This body was to be the United Nations. The United Nations has played an important role in international human rights law since its creation. Following the World Wars the United Nations and its members developed much of the discourse and the bodies of law which now make up international humanitarian law and international human rights law.
International humanitarian law
- See also: Prisoner rights in Islam
The Geneva Conventions came into being between 1864 and 1949 as a result of efforts by Henry Dunant, the founder of the International Committee of the Red Cross. The conventions safeguard the human rights of individuals involved in armed conflict, and build on the 1899 and 1907 Hague Conventions, the international community's first attempt to define laws of war. While first framed before World War I, the conventions were revised as a result of World War II and readopted by the international community in 1949.
The Geneva Conventions are:
- First Geneva Convention "for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field" (first adopted in 1864, last revision in 1949)
- Second Geneva Convention "for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea" (first adopted in 1949, successor of the 1907 Hague Convention X)
- Third Geneva Convention "relative to the Treatment of Prisoners of War" (first adopted in 1929, last revision in 1949)
- Fourth Geneva Convention "relative to the Protection of Civilian Persons in Time of War" (first adopted in 1949, based on parts of the 1907 Hague Convention IV)
In addition, there are three additional amendment protocols to the Geneva Convention:
- Protocol I (1977): Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts. As of 12 January 2007 it had been ratified by 167 countries.
- Protocol II (1977): Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts. As of 12 January 2007 it had been ratified by 163 countries.
- Protocol III (2005): Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Adoption of an Additional Distinctive Emblem. As of June 2007 it had been ratified by 17 countries and signed but not yet ratified by an additional 68 countries.
All four conventions were last revised and ratified in 1949, based on previous revisions and partly on some of the 1907 Hague Conventions. Later conferences have added provisions prohibiting certain methods of warfare and addressing issues of civil wars. Nearly all 200 countries of the world are "signatory" nations, in that they have ratified these conventions. The International Committee of the Red Cross is the controlling body of the Geneva conventions (see below).
International human rights law
Universal Declaration of Human Rights
The Universal Declaration of Human Rights (UDHR) is a non-binding declaration adopted by the United Nations General Assembly[1] in 1948, partly in response to the barbarism of World War II. Although the UDHR is a non-binding resolution, it is now considered to be a central component of international customary law which may be invoked under appropriate circumstances by national and other judiciaries.[1] The UDHR urges member nations to promote a number of human, civil, economic and social rights, asserting these rights are part of the "foundation of freedom, justice and peace in the world". The declaration was the first international legal effort to limit the behavior of states and press upon them duties to their citizens following the model of the rights-duty duality.
| “ | ...recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world | ” |
| —Preamble to the Universal Declaration of Human Rights, 1948 | ||
The UDHR was framed by members of the Human Rights Commission, with Eleanor Roosevelt as Chair, who began to discuss an International Bill of Rights in 1947. The members of the Commission did not immediately agree on the form of such a bill of rights, and whether, or how, it should be enforced. The Commission proceeded to frame the UDHR and accompanying treaties, but the UDHR quickly became the priority.[1]Canadian law professor John Humprey and French lawyer Rene Cassin were responsible for much of the cross-national research and the structure of the document respectively, where the articles of the declaration were interpretative of the general principle of the preamble. The document was structured by Cassin to include the basic principles of dignity, liberty, equality and brotherhood in the first two articles, followed successively by rights pertaining to individuals; rights of individuals in relation to each other and to groups; spiritual, public and political rights; and economic, social and cultural rights. The final three articles place, according to Cassin, rights in the context of limits, duties and the social and political order in which they are to be realized.[1]. Humphrey and Cassin intended the rights in the UDHR to be legally enforceable through some means, as is reflected in the third clause of the preamble:[1]
| “ | Whereas it is essential, if man is not to be compelled to have recourse, as a last resort, to rebellion against tyranny and oppression, that human rights should be protected by the rule of law. | ” |
| —Preamble to the Universal Declaration of Human Rights, 1948 | ||
Some of the UDHR was researched and written by a committee of international experts on human rights, including representatives from all continents and all major religions, and drawing on consultation with leaders such as Mahatma Gandhi.[1]The inclusion of both civil and political rights and economic, social and cultural rights[1][1] was predicated on the assumption that basic human rights are indivisible and that the different types of rights listed are inextricably linked. This principle was not then opposed by any member states (the declaration was adopted unanimously, with the abstention of the Soviet bloc, Apartheid South Africa and Saudi Arabia), however this principle was later subject to significant challenges.[1]
The Universal Declaration was bifurcated into two distinct and different covenants, a Covenants on Civil and Political Rights and another Covenant on Economic, Social and Cultural Rights. Over the objection of the more developted states [Capitalist], which questioned the relevance and propriety of such provisions in covenants on human rights, both begin with the right of people to self-determinaiton and to sovereignty over their natural resources. Then the two covenants go different ways (see, Louis Henkin, The International Bill of Rights: The Universal Declaration and the Covenants, in International Enforcement of Human Rights 6-9, Bernhardt and Jolowicz, eds, (1987))
The drafters of the Covenants initially intended only one instrument. The original drafts included only political and civil rights, but economic and social rights were added early. Western States then fought for, and obtained, a division into tow covenants. They insisted that economic and social right were essentially aspirations or plans, not rights, since their realization depended on availability of resources and on controversial economic theory and ideology. These, they said, were not appropriate subjects for binding obligations and should not be allowed to dilute the legal charecter of provisions honoring political-civil rights; states prepared to assume obligations to respect political-civil rights should not be mitments. There was wide agreement and clear recognition that the means required to enforce or induce compliance with socio-economic undertakings were different fromthe means required for civil-political rights. See Louis Henkin, Introduction, The International Bill of Rights 9-10 (1981).
Because of the divisions over which rights to include, and because some states declined to ratify any treaties including certain specific interpretations of human rights, and despite the Soviet bloc and a number of developing countries arguing strongly for the inclusion of all rights in a so-called Unity Resolution, the rights enshrined in the UDHR were split into two separate covenants, allowing states to adopt some rights and derogate others.[citation needed] Though this allowed the covenants to be created, one commentator has written that it denied the proposed principle that all rights are linked which was central to some interpretations of the UDHR.[1][1]
Template:Articles of the Universal Declaration of Human Rights
Human Rights Treaties
In 1966, the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR) were adopted by the United Nations, between them making the rights contained in the UDHR binding on all states that have signed this treaty.[1]. However they only came into force in 1976 when they were ratified by a sufficient number of countries (despite achieving the ICCPR, a covenant including no economic or social rights, the US only ratified the ICCPR in 1992).[1] The ICESCR commits 155 state parties to work toward the granting of economic, social, and cultural rights (ESCR) to individuals.
Since then numerous other treaties (pieces of legislation) have been offered at the international level. They are generally know as human rights instruments. Some of the most significant are:
- Convention on the Prevention and Punishment of the Crime of Genocide (adopted 1948, entry into force: 1951) [2]
- Convention on the Elimination of All Forms of Racial Discrimination (CERD) (adopted 1966, entry into force: 1969) [3]
- Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) (entry into force: 1981) [4]
- United Nations Convention Against Torture (CAT) (adopted 1984, entry into force: 1984) [5]
- Convention on the Rights of the Child (CRC) (adopted 1989, entry into force: 1989) [6]
- International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families (ICRMW) (adopted 1990)
- Rome Statute of the International Criminal Court (ICC) (entry into force: 2002)
International bodies
The United Nations
The United Nations (UN) is the only multilateral governmental agency with universally accepted international jurisdiction for universal human rights legislation.[1] All UN organs have advisory roles to the United Nations Security Council and the United Nations Human Rights Council, and there are numerous committees within the UN with responsibilities for safeguarding different human rights treaties. The most senior body of the UN with regard to human rights is the Office of the High Commissioner for Human Rights. The United Nations has an international mandate 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. | ” |
| —Article 1-3 of the United Nations Charter | ||
Human Rights Council
The United Nations Human Rights Council, created at the 2005 World Summit to replace the United Nations Commission on Human Rights, has a mandate to investigate violations of human rights.[1] The Human Rights Council is a subsidiary body of the General Assembly[1] and reports directly to it. It ranks below the Security Council, which is the final authority for the interpretation of the United Nations Charter.[1] Forty-seven of the one hundred ninety-one member states sit on the council, elected by simple majority in a secret ballot of the United Nations General Assembly. Members serve a maximum of six years and may have their membership suspended for gross human rights abuses. The Council is based in Geneva, and meets three times a year; with additional meetings to respond to urgent situations.[1]
Independent experts (rapporteurs) are retained by the Council to investigate alleged human rights abuses and to provide the Council with reports.
The Human Rights Council may request that the Security Council take action when human rights violations occur. This action may be direct actions, may involve sanctions, and the Security Council may also refer cases to the International Criminal Court (ICC) even if the issue being referred is outside the normal jurisdiction of the ICC.[1]
Security Council
The United Nations Security Council has the primary responsibility for maintaining international peace and security and is the only body of the UN that can authorize the use of force (including in the context of peace-keeping operations), or override member nations sovereignty by issuing binding Security Council Resolutions. Created by the UN Charter, it is classed as a Charter Body of the United Nations. The UN Charter gives the Security Council the power to:
- Investigate any situation threatening international peace;
- Recommend procedures for peaceful resolution of a dispute;
- Call upon other member nations to completely or partially interrupt economic relations as well as sea, air, postal, and radio communications, or to sever diplomatic relations; and
- Enforce its decisions militarily, if necessary.
The Security Council hears reports from all organs of the United Nations, and can take action over any issue which it feels threatens peace and security, including human rights issues. It has at times been criticised for failing to take action to prevent human rights abuses, including the Darfur crisis, the Srebrenica massacre and the Rwandan genocide.[citation needed]
The Rome Statute of the International Criminal Court recognizes the Security Council the power to refer cases to the Court, where the Court could not otherwise exercise jurisdiction.
Other UN Treaty Bodies
A modern interpretation of the original Declaration of Human Rights was made in the Vienna Declaration and Programme of Action adopted by the World Conference on Human Rights in 1993. The degree of unanimity over these conventions, in terms of how many and which countries have ratified them varies, as does the degree to which they are respected by various states. The UN has set up a number of treaty-based bodies to monitor and study human rights, under the leadership of the UN High Commissioner for Human Rights (UNHCHR). The bodies are committees of independent experts that monitor implementation of the core international human rights treaties. They are created by the treaty that they monitor.
- The Human Rights Committee promotes participation with the standards of the ICCPR. The eighteen members of the committee express opinions on member countries and make judgements on individual complaints against countries which have ratified the treaty. The judgements are not legally binding.
- The Committee on Economic, Cultural and Social Rights monitors the ICESCR and makes general comments on ratifying countries performance. It does not have the power to receive complaints.
- The Committee on the Elimination of Racial Discrimination monitors the CERD and conducts regular reviews of countries' performance. It can make judgements on complaints, but these are not legally binding. It issues warnings to attempt to prevent serious contraventions of the convention.
- The Committee on the Elimination of Discrimination against Women monitors the CEDAW. It receives states' reports on their performance and comments on them, and can make judgements on complaints against countries which have opted into the 1999 Optional Protocol.
- The Committee Against Torture monitors the CAT and receives states' reports on their performance every four years and comments on them. It may visit and inspect individual countries with their consent.
- The Committee on the Rights of the Child monitors the CRC and makes comments on reports submitted by states every five years. It does not have the power to receive complaints.
- The Committee on Migrant Workers was established in 2004 and monitors the ICRMW and makes comments on reports submitted by states every five years. It will have the power to receive complaints of specific violations only once ten member states allow it.
Each treaty body receives secretariat support from the Treaties and Commission Branch of Office of the High Commissioner on Human Rights (OHCHR) in Geneva except CEDAW, which is supported by the Division for the Advancement of Women (DAW). CEDAW meets at United Nations headquarters in New York; the other treaty bodies generally meet at the United Nations Office in Geneva. The Human Rights Committee usually holds its March session in New York City.
International Committee of the Red Cross
Under the 1949 Geneva Conventions the International Committee of the Red Cross (ICRC) has legal status as a non-governmental sovereign entity. It has a mandate to be the controlling authority of International Humanitarian Law.
| “ | The International Committee of the Red Cross (ICRC) is an impartial, neutral, and independent organization whose exclusively humanitarian mission is to to protect the lives and dignity of victims of war and internal violence and to provide them with assistance. | ” |
| —Mission of ICRC | ||
The ICRC directs and coordinates international relief and works to promote and strengthen humanitarian law and universal humanitarian principles.[1] The core tasks of the Committee, which are derived from the Geneva Conventions and its own statutes,[1] are the following:
- to monitor compliance of warring parties with the Geneva Conventions
- to organize nursing and care for those who are wounded on the battlefield
- to supervise the treatment of prisoners of war and make confidential interventions with detaining authorities
- to help with the search for missing persons in an armed conflict (tracing service)
- to organize protection and care for civil populations
- to act as a neutral intermediary between warring parties
The ICRC drew up seven fundamental principles in 1965 that were adopted by the entire Red Cross Movement.[1] They are humanity, impartiality, neutrality, independence, volunteerism, unity, and universality.[1]
Although the ICRC has no powers to enforce the rights enshrined in the Geneva Conventions, its statements carry significant force, and few countries or warring parties deny the ICRC access to the individuals it exists to protect. Doing so has a significant effect on public opinion and international standing and can be taken as an implicit admission of wrongdoing. The initial refusal of the United States to admit the ICRC to its detention facility at Guantanamo Bay drew considerable international condemnation.[1][1]
Regional human rights
There are many regional agreements and organizations promoting and governing human rights.
Africa
The African Union (AU) is a supranational union consisting of fifty-three African states.[1]. Established in 2001, the AU's purpose is to help secure Africa's democracy, human rights, and a sustainable economy, especially by bringing an end to intra-African conflict and creating an effective common market.[1]
The African Commission on Human and Peoples' Rights (ACHPR) is a quasi-judicial organ of the African Union tasked with promoting and protecting human rights and collective (peoples') rights throughout the African continent as well as interpreting the African Charter on Human and Peoples' Rights and considering individual complaints of violations of the Charter. The Commission has three broad areas of responsibility:[1]
- Promoting human and peoples' rights
- Protecting human and peoples' rights
- Interpreting the African Charter on Human and Peoples' Rights
In pursuit of these goals, the Commission is mandated to "collect documents, undertake studies and researches on African problems in the field of human and peoples, rights, organise seminars, symposia and conferences, disseminate information, encourage national and local institutions concerned with human and peoples' rights and, should the case arise, give its views or make recommendations to governments" (Charter, Art. 45).[1]
With the creation of the African Court on Human and Peoples' Rights (under a protocol to the Charter which was adopted in 1998 and entered into force in January 2004), the Commission will have the additional task of preparing cases for submission to the Court's jurisdiction.[1] In a July 2004 decision, the AU Assembly resolved that the future Court on Human and Peoples' Rights would be integrated with the African Court of Justice.
The Court of Justice of the African Union is intended to be the “principal judicial organ of the Union” (Protocol of the Court of Justice of the African Union, Article 2.2).[1] Although it has not yet been established, it is intended to take over the duties of the African Commission on Human and Peoples' Rights, as well as act as the supreme court of the African Union, interpreting all necessary laws and treaties. The Protocol establishing the African Court on Human and Peoples' Rights entered into force in January 2004[1] but its merging with the Court of Justice has delayed its establishment. The Protocol establishing the Court of Justice will come into force when ratified by 15 countries.[1]
There are many countries in Africa accused of human rights violations by the international community and NGOs[1]
Americas
The Organization of American States (OAS) is an international organization, headquartered in Washington, D.C., United States. Its members are the thirty-five independent states of the Americas. Over the course of the 1990s, with the end of the Cold War, the return to democracy in Latin America, and the thrust toward globalization, the OAS made major efforts to reinvent itself to fit the new context. Its stated priorities now include the following:[1]
- Strengthening democracy
- Working for peace
- Protecting human rights
- Combating corruption
- The rights of Indigenous Peoples
- Promoting sustainable development
The Inter-American Commission on Human Rights (the IACHR) is an autonomous organ of the Organization of American States, also based in Washington, D.C. Along with the Inter-American Court of Human Rights, based in San José, Costa Rica, it is one of the bodies that comprise the inter-American system for the promotion and protection of human rights.[1] The IACHR is a permanent body which meets in regular and special sessions several times a year to examine allegations of human rights violations in the hemisphere. Its human rights duties stem from three documents:[1]
- the OAS Charter
- the American Declaration of the Rights and Duties of Man
- the American Convention on Human Rights
The Inter-Americal Court of Human Rights was established in 1979 with the purpose of enforcing and interpreting the provisions of the American Convention on Human Rights. Its two main functions are thus adjudicatory and advisory. Under the former, it hears and rules on the specific cases of human rights violations referred to it. Under the latter, it issues opinions on matters of legal interpretation brought to its attention by other OAS bodies or member states.[1]
Template:North America topic Template:South America topic
Asia
There are no Asia-wide organisations or conventions to promote or protect human rights. Countries vary widely in their approach to human rights and their record of human rights protection.
The Association of Southeast Asian Nations (ASEAN)[1] is a geo-political and economic organization of 10 countries located in Southeast Asia, which was formed in 1967 by Indonesia, Malaysia, the Philippines, Singapore and Thailand.[1] The organisation now also includes Brunei Darussalam, Vietnam, Laos, Myanmar and Cambodia.[1] Its aims include the acceleration of economic growth, social progress, cultural development among its members, and the promotion of regional peace[1]
The South Asian Association for Regional Cooperation (SAARC) is an economic and political organization of eight countries in Southern Asia, representing almost 1.5 billion people. It was established in 1985 by India, Pakistan, Bangladesh, Sri Lanka, Nepal, Maldives and Bhutan. In April 2007, at the Association's 14th summit, Afghanistan became its eighth member.[1]
The Cooperation Council for the Arab States of the Gulf (CCASG) is a trade bloc involving the six Arab states of the Persian Gulf, with many economic and social objectives. Created in 1981, the Council comprises the Persian Gulf states of Bahrain, Kuwait, Oman, Qatar, Saudi Arabia and the United Arab Emirates.[1]
The Asia Cooperation Dialogue (ACD) is a body created in 2002 to promote Asian cooperation at a continental level, helping to integrate the previously separate regional organizations of political or economical cooperation. The main objectives of the ACD are as follows:[1]
- To promote interdependence among Asian countries in all areas of cooperation by identifying Asia's common strengths and opportunities which will help reduce poverty and improve the quality of life for Asian people whilst developing a knowledge-based society within Asia and enhancing community and people empowerment;
- To expand the trade and financial market within Asia and increase the bargaining power of Asian countries in lieu of competition and, in turn, enhance Asia's economic competitiveness in the global market;
- To serve as the missing link in Asian cooperation by building upon Asia's potentials and strengths through supplementing and complementing existing cooperative frameworks so as to become a viable partner for other regions;
- To ultimately transform the Asian continent into an Asian Community, capable of interacting with the rest of the world on a more equal footing and contributing more positively towards mutual peace and prosperity.
None of the above organisations have a specific mandate to promote or protect human rights, but each has some human rights related economic, social and cultural objectives.[1][1]
A number of Asian countries are accused of serious human rights abuses by the international community and human rights organisations.[1]
Europe
The Council of Europe, founded in 1949, is the oldest organisation working for European integration. It is an international organisation with legal personality recognised under public international law and has observer status with the United Nations. The seat of the Council of Europe is in Strasbourg in France. The Council of Europe is responsible for both the European Convention on Human Rights and the European Court of Human Rights.[1] These institutions bind the Council's members to a code of human rights which, though strict, are more lenient than those of the United Nations charter on human rights.[citation needed] The Council also promotes the European Charter for Regional or Minority Languages and the European Social Charter.[1] Membership is open to all European states which seek European integration, accept the principle of the rule of law and are able and willing to guarantee democracy, fundamental human rights and freedoms.[1]
The Council of Europe is separate from the European Union, but the latter is expected to accede to the European Convention and potentially the Council itself.[citation needed] The EU also has a separate human rights document; the Charter of Fundamental Rights of the European Union.[1]
The European Convention on Human Rights defines and guarantees since 1950 human rights and fundamental freedoms in Europe.[1] All 47 member states of the Council of Europe have signed this Convention and are therefore under the jurisdiction of the European Court of Human Rights in Strasbourg.[1] In order to prevent torture and inhuman or degrading treatment (Article 3 of the Convention), the European Committee for the Prevention of Torture was established.[1]
The European Court of Human Rights is the only international court with jurisdiction to deal with cases brought by individuals (rather than states).[1]
Oceania
- See also: Human rights in Australia
There are no regional approaches or agreements on human rights for Oceania, but most countries have a well-regarded human rights record.
Australia is the only western democracy with no constitutional or legislative bill of rights, but a number of laws have been enacted to protect human rights and the Constitution of Australia has been found to contain certain implied rights by the High Court. However, Australia has been criticised at various times for its immigration policies, treatment of asylum seekers, and treatment of its indigenous population.
Human rights in Oceania | |
|---|---|
| Image:Australasia.png Australasia | |
| Image:Melanesia.png Melanesia | East Timor2 · Fiji · New Caledonia · Papua New Guinea3 · Solomon Islands · Vanuatu |
| Image:Micronesia.png Micronesia | |
| Image:Polynesia.png Polynesia | American Samoa · Cook Islands · French Polynesia · Niue · Pitcairn Islands · Samoa · Tokelau · Tonga · Tuvalu · Wallis and Futuna |
| 1Often included in Polynesia. 2Often included in Southeast Asia. 3Often included in Australasia. | |
Philosophies of human rights
Several theoretical approaches have been advanced to explain how and why human rights become part of social expectations.
One of the oldest Western philosophies on human rights is that they are a product of a natural law, stemming from different philosophical or religious grounds.
Other theories hold that human rights codify moral behavior which is a human social product developed by a process of biological and social evolution (associated with Hume). Human rights are also described as a sociological pattern of rule setting (as in the sociological theory of law and the work of Weber). These approaches include the notion that individuals in a society accept rules from legitimate authority in exchange for security and economic advantage (as in Rawls) - a social contract.
Natural rights
Natural law theories base human rights on a “natural” moral, religious or even biological order which is independent of transitory human laws or traditions.
Socrates and his philosophic heirs, Plato and Aristotle, posited the existence of natural justice or natural right (dikaion physikon, δικαιον φυσικον, Latin ius naturale). Of these, Aristotle is often said to be the father of natural law,[1] although evidence for this is due largely to the interpretations of his work of Thomas Aquinas.[1]
The development of this tradition of natural justice into one of natural law is usually attributed to the Stoics.[1]
Some of the early Church fathers sought to incorporate the until then pagan concept of natural law into Christianity. Natural law theories have featured greatly in the philosophies of Thomas Aquinas, Francisco Suárez, Richard Hooker, Thomas Hobbes, Hugo Grotius, Samuel von Pufendorf, and John Locke.
In the Seventeenth century Thomas Hobbes founded a contractualist theory of legal positivism on what all men could agree upon: what they sought (happiness) was subject to contention, but a broad consensus could form around what they feared (violent death at the hands of another). The natural law was how a rational human being, seeking to survive and prosper, would act. It was discovered by considering humankind's natural rights, whereas previously it could be said that natural rights were discovered by considering the natural law. In Hobbes' opinion, the only way natural law could prevail was for men to submit to the commands of the sovereign. In this lay the foundations of the theory of a social contract between the governed and the governor.
Hugo Grotius based his philosophy of international law on natural law. He wrote that "even the will of an omnipotent being cannot change or abrogate" natural law, which "would maintain its objective validity even if we should assume the impossible, that there is no God or that he does not care for human affairs." (De iure belli ac pacis, Prolegomeni XI). This is the famous argument etiamsi daremus (non esse Deum), that made natural law no longer dependent on theology.
John Locke incorporated natural law into many of his theories and philosophy, especially in Two Treatises of Government. Locke turned Hobbes' prescription around, saying that if the ruler went against natural law and failed to protect "life, liberty, and property," people could justifiably overthrow the existing state and create a new one.
The Belgian philosopher of law Frank van Dun is one among those who are elaborating a secular conception[1] of natural law in the liberal tradition. There are also emerging and secular forms of natural law theory that define human rights as derivative of the notion of universal human dignity.[1]
The term "human rights" has replaced the term "natural rights" in popularity, because the rights are less and less frequently seen as requiring natural law for their existence.[1]
Social contract
The Swiss-French philosopher Jean-Jacques Rousseau suggested the existence of a hypothetical social contract where a group of free individuals agree for the sake of the common good to form institutions to govern themselves. This echoed the earlier postulation by Thomas Hobbes that there is a contract between the government and the governed - and led to John Locke's theory that a failure of the government to secure rights is a failure which justifies the removal of the government.
International equity expert Paul Finn has echoed this view:
| “ | the most fundamental fiduciary relationship in our society is manifestly that which exists between the community (the people) and the state, its agencies and officials. | ” |
| —Paul Finn[1] | ||
The relationship between government and the governed in countries which follow the English common law tradition is a fiduciary one. In equity law, a politician's fiduciary obligations are not only comprised of duties of good faith and loyalty, but also include duties of skill and competence in managing a country and it's people. Originating from within the Courts of Equity, the fiduciary concept exists to prevent those holding positions of power from abusing their authority. The fiduciary relationship between government and the governed arises from the governments ability to control people with the exercise of its power. In effect, if a government has the power to abolish any rights, it is equally burdened with the fiduciary duty to protect such an interest because it would benefit from the exercise of its own discretion to extinguish rights which it alone had the power to dispose of.[1]
Reciprocity
The Golden Rule, or the ethic of reciprocity states that one must do unto others as one would be treated themselves; the principle being that reciprocal recognition and respect of rights ensures that one's own rights will be protected. This principle can be found in all the world's major religions in only slightly differing forms, and was enshrined in the "Declaration Toward a Global Ethic" by the Parliament of the World's Religions in 1993.
Other theories of human rights
The philosopher John Finnis argues that human rights are justifiable on the grounds of their instrumental value in creating the necessary conditions for human well-being.[1][1] Interest theories highlight the duty to respect the rights of other individuals on grounds of self-interest:
| “ | Human rights law, applied to a State's own citizens serves the interest of states, by, for example, minimizing the risk of violent resistance and protest and by keeping the level of dissatisfaction with the government manageable | ” |
| —Niraj Nathwani in Rethinking refugee law[1] | ||
The biological theory considers the comparative reproductive advantage of human social behavior based on empathy and altruism in the context of natural selection.[1][1][1]
Concepts in human rights
Indivisibility and categorization of rights
The most common categorization of human rights is to split them into civil and political rights, and economic, social and cultural rights.
Civil and political rights are enshrined in articles 3 to 21 of the Universal Declaration of Human Rights and in the ICCPR. Economic, social and cultural rights are enshrined in articles 22 to 28 of the Universal Declaration of Human Rights and in the ICESCR. The UDHR included both economic, social and cultural rights and civil and political rights because it was based on the principle that the different rights could only successfully exist in combination:
| “ | The ideal of free human beings enjoying civil and political freedom and freedom from fear and want can only be achieved if conditions are created whereby everyone may enjoy his civil and political rights, as well as his social, economic and cultural rights | ” |
| —International Covenant on Civil and Political Rights and the International Covenant on Economic Social and Cultural Rights, 1966 | ||
This is held to be true because without civil and political rights the public cannot assert their economic, social and cultural rights. Similarly, without livelihoods and a working society, the public cannot assert or make use of civil or political rights (known as the full belly thesis)
Although accepted by the signaturies to the UDHR, most of them do not in practice give equal weight to the different types of rights. Western cultures have often given priority to civil and political rights, sometimes at the expense of economic and social rights such as the right to work, to education, health and housing. For example, in the United States there is no universal a