HUMAN RIGHTS

Thursday, July 30, 2009

Currently debated rights

Events and new possibilities can affect existing rights or require new ones. Advances of technology, medicine, and philosophy constantly challenge the status quo of human rights thinking.

[edit] Environmental rights

There are two basic conceptions of environmental human rights in the current human rights system. The first is that the right to a healthy or adequate environment is itself a human right (as seen in the both Article 21 of the African Charter of Human and People’s Rights, and Article 11 of the San Salvador Protocol to the American Charter of Human Rights).^[93]^[94]. The second conception is the idea that environmental human rights can be derived from other human rights, usually - the right to life, the right to health, the right to private family life and the right to property (among many others). This second theory enjoys much more widespread use in human rights courts around the world, as those rights are contained in many human rights documents.

The onset of various environmental issues, especially climate change, has created potential conflicts between different human rights. Human rights ultimately require a working ecosystem and healthy environment, but the granting of certain rights to individuals may damage these. Such as the conflict between right to decide number of offspring and the common need for a healthy environment, as noted in the tragedy of the commons.^[95] In the area of environmental rights, the responsibilities of multinational corporations, so far relatively unaddressed by human rights legislation, is of paramount consideration.^{[citation needed]}

Environmental Rights revolve largely around the idea of a right to a livable environment both for the present and the future generations.

[edit] Future generations

In 1997 UNESCO adopted the Declaration on the Responsibilities of the Present Generation Towards the Future Generation. The Declaration opens with the words:

“	Mindful of the will of the peoples, set out solemnly in the Charter of the United Nations, to 'save succeeding generations from the scourge of war' and to safeguard the values and principles enshrined in the Universal Declaration of Human Rights, and all other relevant instruments of international law.	”
—Declaration on the Responsibilities of the Present Generation Towards the Future Generation

Article 1 of the declaration states "the present generations have the responsibility of ensuring that the needs and interests of present and future generations are fully safeguarded." The preamble to the declaration states that "at this point in history, the very existence of humankind and its environment are threatened" and the declaration covers a variety of issues including protection of the environment, the human genome, biodiversity, cultural heritage, peace, development, and education. The preamble recalls that the responsibilities of the present generations towards future generations has been referred to in various international instruments, including the Convention for the Protection of the World Cultural and Natural Heritage (UNESCO 1972), the United Nations Framework Convention on Climate Change and the Convention on Biological Diversity (Rio de Janeiro, 1992), the Rio Declaration on Environment and Development (UN Conference on Environment and Development, 1992), the Vienna Declaration and Programme of Action (World Conference on Human Rights, 1993) and a number of UN General Assembly resolutions relating to the protection of the global climate for present and future generations adopted since 1990.^[96]

[edit] Lesbian, Gay, Bisexual, Transgender (LGBT) rights

Main article: LGBT social movements

Some organizations argue that LGBT issues, such as same-sex marriage, gay adoption rights, and protection from discrimination should be considered human rights.^[97]^[98]^[99]Canadian courts have recognized certain rights under section fifteen of the Canadian Charter of Rights and Freedoms. Current campaigns, such as the Human Rights Campaign, specifically focus on the rights of the LGBT community.^[100]

Part of this debate includes a proposed UN declaration on LGBT rights which would for the first time condemn “discrimination based on sexual orientation and gender identity.”^[101] While receiving widespread global support, including signatures from the member states of the European Union, opposition has come from several UN member nations, as well as the Vatican, where the Vatican’s permanent observer at the UN, indicated his belief that the declaration would discriminate against states which support traditional marriage.^[102]

[edit] Trade

Although both the Universal Declaration of Human Rights and the International Covenant on Economic, Social and Cultural Rights emphasize the importance of a right to work, neither of these documents explicitly mention trade as a mechanism for ensuring this fundamental right. And yet trade plays a key role in providing jobs.^[103]

Some experts argue that trade is inherent to human nature and that when governments inhibit international trade they directly inhibit the right to work and the other indirect benefits, like the right to education, that increased work and investment help accrue.^[104] Others have argued that the ability to trade doesn't affect everyone equally -- often groups like the rural poor, indigenous groups and women are less likely to access the benefits of increased trade. ^[105]

On the other hand, others think that it is no longer primarily individuals but companies that trade, and therefore it cannot be guaranteed as a human right.^{[citation needed]} Additionally, trying to fit too many concepts under the umbrella of what qualifies as a human right has the potential to dilute their importance. Finally, it is difficult to define a right to trade as either "fair"^[106] or "just" in that all trade regimes create winners and losers, and changing the rules only creates different losers, not necessarily fewer.^[107]

See also: The Recognition of Labour Standards within the World Trade Organisation

[edit] Water

See also: Water politics and Right to water

There is no current universal human right to water, binding or not, enshrined by the United Nations or any other multilateral body. In November 2002, the United Nations Committee on Economic, Social and Cultural Rights issued a non-binding comment affirming that access to water was a human right:

“	the human right to water is indispensable for leading a life in human dignity. It is a prerequisite for the realization of other human rights.	”
—United Nations Committee on Economic, Social and Cultural Rights

This principle was reaffirmed at the 3rd and 4th World Water Councils in 2003 and 2006. This marks a departure from the conclusions of the 2nd World Water Forum in The Hague in 2000, which stated that water was a commodity to be bought and sold, not a right.^[108] There are calls from many NGOs and politicians to enshrine access to water as a binding human right, and not as a commodity.^[109]

[edit] Crime and Punishment

The Universal Declaration of Human Rights states that everyone has the "right to life".^[110] According to many Human Rights activists, the death penalty violates these rights. ^[111]The United Nations also called on retentionist states to establish a moratorium on Capital Punishment with a view to abolition.^[112]States which do not face considerable moral and political pressure. The Universal Declaration of Human Rights also prohibits torture and other cruel, inhuman, and degrading punishment. Countries have argued that "enhanced interrogation methods", which amount to torture, are needed for national security. Human rights activists have also criticized some methods used to punish criminal offenders. For example, Corporal Punishment is also an issue. One example is Caning, used in Malaysia, Brunei, and Singapore is considered to be cruel, inhuman, and degrading punishment.^[113] In Mexico, Life Imprisonment without parole is also considered to be cruel and unusual punishment. Other issues, such as Police Brutality and impunity for Human Rights violators^[114] are also serious issues.

[edit] Medicine

In Canada several legal medical marijuana patients have filed human rights complaints over their discrimination and treatment. ^[115] ^[116]

[edit] See also

Legal issues

Human rights vs. national security

With the exception of non-derogable human rights (international conventions class the right to life, the right to be free from slavery, the right to be free from torture and the right to be free from retroactive application of penal laws as non-derogable^[86]), the UN recognises that human rights can be limited or even pushed aside during times of national emergency - although

“	the emergency must be actual, affect the whole population and the threat must be to the very existence of the nation. The declaration of emergency must also be a last resort and a temporary measure	”
—United Nations. The Resource^[86]

Rights that cannot be derogated for reasons of national security in any circumstances are known as peremptory norms or jus cogens. Such United Nations Charter obligations are binding on all states and cannot be modified by treaty.

Examples of national security being used to justify human rights violations include the Japanese American internment during World War II,^[87] Stalin's Great Purge,^[88] and the actual and alleged modern-day abuses of terror suspects rights by some western countries, often in the name of the War on Terror.^[89]^[90]

[edit] Human rights violations

Aung San Suu Kyi is a prisoner of conscience and pro-democracy campaigner in Myanmar

Theory of value and property

Henry of Ghent articulated the theory that every person has a property interest in their own body.^[78] John Locke uses the word property in both broad and narrow senses. In a broad sense, it covers a wide range of human interests and aspirations; more narrowly, it refers to material goods. He argues that property is a natural right and it is derived from labour."^[79] In addition, property precedes government and government cannot "dispose of the estates of the subjects arbitrarily." To deny valid property rights according to Locke is to deny human rights. The British philosopher had significant impacts upon the development of the Government of the UK and was central to the fundamental founding philosophy of the United States. Karl Marx later critiqued Locke's theory of property in his Theories of Surplus Value, seeing the beginnings of a theory of surplus value in Locke's works. In Locke's Second Treatise he argued that the right to own private property was unlimited as long as nobody took more than they could use without allowing any of their property to go to waste and that there were enough common resources of comparable quality available for others to create their own property. Locke did believe that some would be more "industrious and rational" than others and would amass more property, but believed this would not cause shortages. Though this system could work before the introduction of money, Marx argued in Theories of Surplus Value that Locke's system would break down and claimed money was a contradiction of the law of nature on which private property was founded

State and non-state actors

Companies, NGOs, political parties, informal groups, and individuals are known as non-State actors. Non-State actors can also commit human rights abuses, but are not generally subject to human rights law other than under International Humanitarian Law, which applies to individuals.^{[citation needed]} Also, certain national instruments such as the Human Rights Act 1998 (UK), impose human rights obligations on certain entities which are not traditionally considered as part of government ("public authorities").^{[citation needed]}

Multinational companies play an increasingly large role in the world, and are responsible for a large number of human rights abuses.^[74] Although the legal and moral environment surrounding the actions of governments is reasonably well developed, that surrounding multinational companies is both controversial and ill-defined.^{[citation needed]} Multinational companies' primary responsibility is to their shareholders, not to those affected by their actions. Such companies may be larger than the economies of some the states within which they operate, and can wield significant economic and political power. No international treaties exist to specifically cover the behavior of companies with regard to human rights, and national legislation is very variable. Jean Ziegler, Special Rapporteur of the UN Commission on Human Rights on the right to food stated in a report in 2003:

“	the growing power of transnational corporations and their extension of power through privatization, deregulation and the rolling back of the State also mean that it is now time to develop binding legal norms that hold corporations to human rights standards and circumscribe potential abuses of their position of power.	”
—Jean Ziegler^[75]

In August 2003 the Human Rights Commission's Sub-Commission on the Promotion and Protection of Human Rights produced draft Norms on the responsibilities of transnational corporations and other business enterprises with regard to human rights.^[76] These were considered by the Human Rights Commission in 2004, but have no binding status on corporations and are not monitored

Universalism vs. cultural relativism

Main articles: Cultural relativism, Moral relativism, Moral universalism, and Universal ethic

Map: Estimated Prevalence of Female Genital Cutting (FGC) in Africa. Data based on uncertain estimates.

The UDHR enshrines universal rights that apply to all humans equally, whichever geographical location, state, race or culture they belong to.

Proponents of cultural relativism argue for acceptance of different cultures, which may have practices conflicting with human rights.

For example female genital mutilation occurs in different cultures in Africa, Asia and South America. It is not mandated by any religion, but has become a tradition in many cultures. It is considered a violation of women's and girl's rights by much of the international community, and is outlawed in some countries.

Universalism has been described by some as cultural, economic or political imperialism. In particular, the concept of human rights is often claimed to be fundamentally rooted in a politically liberal outlook which, although generally accepted in Europe, Japan or North America, is not necessarily taken as standard elsewhere.

For example, in 1981, the Iranian representative to the United Nations, Said Rajaie-Khorassani, articulated the position of his country regarding the Universal Declaration of Human Rights by saying that the UDHR was "a secular understanding of the Judeo-Christian tradition", which could not be implemented by Muslims without trespassing the Islamic law.^[68] The former Prime Ministers of Singapore, Lee Kuan Yew, and of Malaysia, Mahathir bin Mohamad both claimed in the 1990s that Asian values were significantly different from western values and included a sense of loyalty and foregoing personal freedoms for the sake of social stability and prosperity, and therefore authoritarian government is more appropriate in Asia than democracy. This view is countered by Mahathir's former deputy:

“	To say that freedom is Western or unAsian is to offend our traditions as well as our forefathers, who gave their lives in the struggle against tyranny and injustices.	”
—A Ibrabim in his keynote speech to the Asian Press Forum title Media and Society in Asia, 2 December 1994

and also by Singapore's opposition leader Chee Soon Juan who states that it is racist to assert that Asians do not want human rights.^[69]^[70]

An appeal is often made to the fact that influential human rights thinkers, such as John Locke and John Stuart Mill, have all been Western and indeed that some were involved in the running of Empires themselves.^[71]^[72]

Cultural relativism is a self-detonating position; if cultural relativism is true, then universalism must also be true. Relativistic arguments also tend to neglect the fact that modern human rights are new to all cultures, dating back no further than the UDHR in 1948. They also don't account for the fact that the UDHR was drafted by people from many different cultures and traditions, including a US Roman Catholic, a Chinese Confucian philosopher, a French zionist and a representative from the Arab League, amongst others, and drew upon advice from thinkers such as Mahatma Gandhi.^[12]

Michael Ignatieff has argued that cultural relativism is almost exclusively an argument used by those who wield power in cultures which commit human rights abuses, and that those whose human rights are compromised are the powerless.^[73] This reflects the fact that the difficulty in judging universalism versus relativism lies in who is claiming to represent a particular culture.

Although the argument between universalism and relativism is far from complete, it is an academic discussion in that all international human rights instruments adhere to the principle that human rights are universally applicable. The 2005 World Summit reaffirmed the international community's adherence to this principle:

Indivisibility and categorization

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 (UDHR) and in the International Covenant on Civil and Political Rights (ICCPR). Economic, social and cultural rights are enshrined in articles 22 to 28 of the Universal Declaration of Human Rights (UDHR) and in the International Covenant on Economic, Social and Cultural Rights (ICESCR).

[edit] Indivisibility

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).

The indivisibility and interdependence of all human rights has been confirmed by the 1993 Vienna Declaration and Programme of Action:

“	All human rights are universal, indivisible and interdependent and related. The international community must treat human rights globally in a fair and equal manner, on the same footing, and with the same emphasis	”
—Vienna Declaration and Programme of Action, World Conference on Human Rights, 1993

This statement was again endorsed at the 2005 World Summit in New York (paragraph 121).

Although accepted by the signatories to the UDHR, most do not in practice give equal weight to the different types of rights. Some 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 access to healthcare free at the point of use.^[63] That is not to say that Western cultures have overlooked these rights entirely (the welfare states that exist in Western Europe are evidence of this). Similarly the ex Soviet bloc countries and Asian countries have tended to give priority to economic, social and cultural rights, but have often failed to provide civil and political rights.

[edit] Categorization

Opponents of the indivisibility of human rights argue that economic, social and cultural rights are fundamentally different from civil and political rights and require completely different approaches. Economic, social and cultural rights are argued to be:^[64]

positive, meaning that they require active provision of entitlements by the state (as opposed to the state being required only to prevent the breach of rights)
resource-intensive, meaning that they are expensive and difficult to provide
progressive, meaning that they will take significant time to implement
vague, meaning they cannot be quantitatively measured, and whether they are adequately provided or not is difficult to judge
ideologically divisive/political, meaning that there is no consensus on what should and shouldn't be provided as a right
socialist, as opposed to capitalist
non-justiciable, meaning that their provision, or the breach of them, cannot be judged in a court of law
aspirations or goals, as opposed to real 'legal' rights

Similarly civil and political rights are categorized as:

negative, meaning the state can protect them simply by taking no action
cost-free
immediate, meaning they can be immediately provided if the state decides to
precise, meaning their provision is easy to judge and measure
non-ideological/non-political
capitalist
justiciable
real 'legal' rights

In The No-Nonsense Guide to Human Rights Olivia Ball and Paul Gready argue that for both civil and political rights and economic, social and cultural rights it is easy to find examples which do not fit into the above categorisation. Amongst several others, they highlight the fact that maintaining a judicial system, a fundamental requirement of the civil right to due process before the law and other rights relating to judicial process, is positive, resource-intensive, progressive and vague, while the social right to housing is precise, justiciable and can be a real 'legal' right.^[65]

Another categorization, offered by Karel Vasak, is that there are three generations of human rights: first-generation civil and political rights (right to life and political participation), second-generation economic, social and cultural rights (right to subsistence) and third-generation solidarity rights (right to peace, right to clean environment). Out of these generations, the third generation is the most debated and lacks both legal and political recognition. This categorisation is at odds with the indivisibility of rights, as it implicitly states that some rights can exist without others. Prioritisation of rights for pragmatic reasons is however a widely accepted necessity. Human rights expert Philip Alston argues:

“	If every possible human rights element is deemed to be essential or necessary, then nothing will be treated as though it is truly important.	”
—Philip Alston^[66]

He, and others, urge caution with prioritisation of rights:

“	...the call for prioritizing is not to suggest that any obvious violations of rights can be ignored.	”
—Philip Alston^[66]

“	Priorities, where necessary, should adhere to core concepts (such as reasonable attempts at progressive realization) and principles (such as non-discrimination, equality and participation.	”
—Olivia Ball, Paul Gready^[67]

Some human rights are said to be "inalienable rights." The term inalienable rights (or unalienable rights) refers to "a set of human rights that are fundamental, are not awarded by human power, and cannot be surrendered."

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.^[55]^[56] 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^[57]

The biological theory considers the comparative reproductive advantage of human social behavior based on empathy and altruism in the context of natural selection.^[58]^[59]^[60]

Main article: Human security

Human security is an emerging school of thought which challenges the traditional, state-based conception of security and argues that a people-focused approach to security is more appropriate in the modern interdependent world and would be more effective in advancing the security of individuals and societies across the globe.

Philosopher Friedrich Nietzsche has argued to the effect that those who speak most vehemently about their rights, doubt at the bottom of their soul if they truly have any.

[edit] Critiques of Human Rights

Philosophers who have criticized the concept of human rights include Jeremy Bentham, Edmund Burke, Friedrich Nietzsche and Karl Marx. A recent critique has been advanced by Charles Blattberg in his essay "The Ironic Tragedy of Human Rights." Blattberg argues that rights talk, being abstract, demotivates people from upholding the values that rights are meant to assert.^[61] In his book After Virtue Alisdair McIntyre claimed the concept that all human beings have certain rights simply by virtue of being human was illogical, stated "the best reason for asserting so bluntly that there are no such rights is indeed of precisely the same type as the best reason which we possess for asserting that there are no witches and the best reason which we possess for asserting that there are no unicorns: every attempt to give good reasons for believing there are such rights has failed."