The “justification” of a right refers to how we argue for its existence, what philosophical assumptions and theories we use to defend and define the right.
Politicians, states and people do not necessarily use any explicit philosophical theory to support their views, or to explain why they believe in certain laws or basic rights, but they inevitably have some type of theory.
Also, the nature of public policy is compromise and mish-mash. Usually, no one philosophical theory wins out. Instead, policies reflect compromises between different theories.
Classification of Human Rights
The term ‘human rights’, is used to denote a broad spectrum of rights ranging from the right to life to the right to a cultural identity. They involve all elementary preconditions for a dignified human existence. These rights can be ordered and specified in different ways. At the international level, a distinction has sometimes been made between civil and political rights, on the one hand, and economic, social and cultural rights on the other. This section clarifies this distinction. Since other classifications are also used, these will likewise be reviewed, without claiming, however, that these categorisations reflect an international consensus. It is also clear that the various categorisations overlap to a considerable extent.
Although human rights have been classified in a number of different manners it is important to note that international human rights law stresses that all human rights are universal, indivisible and interrelated (e.g. Vienna Declaration and Programme of Action (1993), para. 5). The indivisibility of human rights implies that no right is more important than any other.
One classification used is the division between ‘classic’ and ‘social’ rights. ‘ Classic’ rights are often seen to require the non-intervention of the state (negative obligation), and ‘social rights’ as requiring active intervention on the part of the state, Classfying human rights in terms of negative and positive ovligations may have its own defects for a certain right may involve both negative and positive obligations for its effective realization. In other words, classic rights entail an obligation for the state to refrain from certain actions, while social rights oblige it to provide certain guarantees. Lawyers often describe classic rights in terms of a duty to achieve a given result (‘obligation of result’) and social rights in terms of a duty to provide the means (‘obligations of conduct’). The evolution of international law, however, has led to this distinction between ‘classic’ and ‘social’ rights has become increasingly awkward. Classic rights, such as civil and political rights, often require considerable investment by the state. The state does not merely have the obligation to respect these rights, but must also guarantee that people can effectively enjoy them. Hence, the right to a fair trial, for instance, requires well-trained judges, prosecutors, lawyers and police officers, as well as administrative support. Another example is the organisation of elections, which also entails high costs.
On the other hand, most ‘social’ rights contain elements that require the state to abstain from interfering with the individual’s exercise of the right. As several commentators note, the right to food includes the right for everyone to procure their own food supply without interference; the right to housing implies the right not to be a victim of forced eviction; the right to work encompasses the individual’s right to choose his/her own work and also requires the state not to hinder a person from working and to abstain from measures that would increase unemployment; the right to education implies the freedom to establish and direct educational establishments; and the right to the highest attainable standard of health implies the obligation not to interfere with the provision of health care.
In sum, the differentiation of ‘classic’ rights from ‘social’ rights does not reflect the nature of the obligations under each set of rights.
The term ‘civil rights’ is often used with reference to the rights set out in the first eighteen articles of the UDHR, almost all of which are also set out as binding treaty norms in the ICCPR. From this group, a further set of ‘physical integrity rights’ has been identified, which concern the right to life, liberty and security of the person, and which offer protection from physical violence against the person, torture and inhuman treatment, arbitrary arrest, detention, exile, slavery and servitude, interference with one’s privacy and right of ownership, restriction of one’s freedom of movement, and the freedom of thought, conscience and religion.
The difference between ‘basic rights’ (see below) and ‘physical integrity rights’ lies in the fact that the former include economic and social rights, but do not include rights such as protection of privacy and ownership.
Although not strictly an integrity right, the right to equal treatment and protection in law certainly qualifies as a civil right. Moreover, this right plays an essential role in the realisation of economic, social and cultural rights.
Another group of civil rights is referred to under the collective term ‘due process rights’. These pertain, among other things, to the right to a public hearing by an independent and impartial tribunal, the ‘presumption of innocence’, the ne bis in idem principle and legal assistance (see, e.g., Articles 9, 10, 14 and 15 of the ICCPR).
In general, political rights are those set out in Articles 19 to 21 of the UDHR and also codified in the ICCPR. They include freedom of expression, freedom of association and assembly, the right to take part in the government of one’s country, and the right to vote and stand for election at genuine periodic elections held by secret ballot (see Articles 18, 19, 21, 22 and 25 of the ICCPR).
Economic and social rights
The economic and social rights are listed in Articles 22 to 26 of the UDHR, and further developed and set out as binding treaty norms in the ICESCR. These rights provide the conditions necessary for prosperity and wellbeing. Economic rights refer, for example, to the right to property, the right to work, which one freely chooses or accepts, the right to a fair wage, a reasonable limitation of working hours, and trade union rights. Social rights are those rights necessary for an adequate standard of living, including rights to health, shelter, food, social care, and the right to education ( Articles 6 to 14 of the ICESCR).
The UDHR lists cultural rights in Articles 27 and 28. These include the right to participate freely in the cultural life of the community, to share in scientific advancement, and the right to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which one is the author (see also Article 15 of the ICESCR and Article 27 of the ICCPR).
- The alleged dichotomy between civil and political rights, and economic, social and cultural rights
Traditionally, it has been argued that there are fundamental differences between economic, social and cultural rights, and civil and political rights. These two categories of rights have been seen as two different concepts and their differences have been characterised as a dichotomy. According to this view, civil and political rights are considered to be expressed in a very precise language, imposing merely negative obligations which do not require resources for their implementation, and which, therefore, can be applied immediately. On the other hand, economic, social and cultural rights are considered to be expressed in vague terms, imposing only positive obligations conditional on the existence of resources and therefore involving a progressive realisation.
As a consequence of these alleged differences, it has been argued that civil and political rights are justiciable whereas economic, social and cultural rights are not. In other words, this view holds that only violations of civil and political rights can be adjudicated by judicial or similar bodies, while, economic, social and cultural rights are ‘by their nature’ non-justiciable.
Over the years, economic, social and cultural rights have been re-examined and their juridical validity and applicability have been increasingly stressed. During the last decade, we have witnessed the development of a large and growing body of case-law of domestic courts concerning economic, social and cultural rights. This case-law, at the national and international level, suggests a potential role for creative and sensitive decisions of judicial and quasi-judicial bodies with respect to these rights.
FUNDAMENTAL AND BASIC RIGHTS
Fundamental rights are taken to mean such rights as the right to life and the inviolability of the person. Within the UN, extensive standards have been developed which, particularly since the 1960s, have been laid down in numerous conventions, declarations and resolutions, and which bring already recognised rights and matters of policy which affect human development into the sphere of human rights. Due to the concern that a broad definition of human rights may lead to the notion of ‘violation of human rights’ losing some of its significance has generated a need to distinguish a separate group within the broad category of human rights. Increasingly, the terms ‘elementary’, ‘essential’, ‘core’ and ‘fundamental’ human rights are being used.
Another approach is to distinguish a number of ‘basic rights’, which should be given absolute priority in national and international policy. These include all the rights which concern people’s primary material and non-material needs. If these are not provided, no human being can lead a dignified existence. Basic rights include the right to life, the right to a minimum level of security, the inviolability of the person, freedom from slavery and servitude, and freedom from torture, unlawful deprivation of liberty, discrimination and other acts which impinge on human dignity. They also include freedom of thought, conscience and religion, as well as the right to suitable nutrition, clothing, shelter and medical care, and other essentials crucial to physical and mental health.
Mention should also be made of so-called ‘participation rights’. For instance, the right to participate in public life through elections (which is also a political right; see above) or to take part in cultural life. These participation rights are generally considered to belong to the category of fundamental rights, being essential preconditions for the protection of all kinds of basic human rights.
Preconditions for a dignified human existence have often been described in terms of freedoms (e.g., freedom of movement, freedom from torture, and freedom from arbitrary arrest). United States President, Franklin D. Roosevelt, summarised these preconditions in his famous ‘Four Freedoms Speech’ to the United States Congress on 26 January 1941:
- Freedom of speech and expression;
- Freedom of belief (the right of every person to worship God in his own way);
- Freedom from want (economic understandings which will secure to every nation a healthy peace-time life for its inhabitants); and
- Freedom from fear (world-wide reduction of armaments to such a point and in such a thorough fashion that no nation would be able to commit an act of physical aggression against any neighbour). Roosevelt implied that a dignified human existence requires not only protection from oppression and arbitrariness, but also access to the primary necessities of life.
The concept of ‘civil liberties’ is commonly known, particularly in the United States, where the American Civil Liberties Union (a non-governmental organisation) has been active since the 1920s. Civil liberties refer primarily to those human rights which are laid down in the United States Constitution: freedom of religion, freedom of the press, freedom of expression, freedom of association and assembly, protection against interference with one’s privacy, protection against torture, the right to a fair trial, All the rights of workers. This classification does not correspond to the distinction between civil and political rights.
Individual and collective rights
Although the fundamental purpose of human rights is the protection and development of the individual (individual rights), some of these rights are exercised by people in groups (collective rights). Freedom of association and assembly, freedom of religion and, more especially, the freedom to form or join a trade union, fall into this category. The collective element is even more evident when human rights are linked specifically to a membership of a certain group, such as the right of members of ethnic and cultural minorities to preserve their own language and culture. One must make a distinction between two types of rights, which are usually called collective rights: individual rights enjoyed in association with others, and the rights of a collective.
The most notable example of a collective human right is the right to selfdetermination, which is regarded as being vested in peoples rather than in individuals (see Articles 1 of the ICCPR and ICESCR). The recognition of the right to self-determination as a human right is grounded in the fact that it is seen as a necessary precondition for the development of the individual. It is generally accepted that collective rights may not infringe an universally accepted individual rights, such as the right to life and freedom from torture.
First, second and third generation rights
The division of human rights into three generations was first proposed by Karel Vasak at the International Institute of Human Rights in Strasbourg. His division follows the principles of Liberté, Égalité and Fraternité of the French Revolution.
First generation rights are related to liberty and refer fundamentally to civil and political rights. The second generation rights are related to equality, including economic, social and cultural rights. Third generation or ‘solidarity rights’ cover group and collective rights, which include, inter alia, the right to development, the right to peace and the right to a clean environment. The only third generation right which so far has been given an official human rights status - apart from the right to self-determination, which is of longer standing - is the right to development (see the Declaration on the Right to Development, adopted by the UNGA on 4 December 1986, and the 1993 Vienna Declaration and Programme of Action (Paragraph I, 10)). The Vienna Declaration confirms the right to development as a collective as well as an individual right, individuals being regarded as the primary subjects of development. Recently, the right to development has been given considerable attention in the activities of the High Commissioner for Human Rights. The EU and its member states also explicitly accept the right to development as part of the human rights concept.
While the classification of rights into ‘generations’ has the virtue of incorporating communal and collective rights, thereby overcoming the individualist moral theory in which human rights are grounded, it has been criticised for not being historically accurate and for establishing a sharp distinction between all human rights. It would be more interesting if how hte concepts of generations of tights is at adds with the Tehran Proclummation or the UDPA was described or explained.