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Human rights are those liberties, immunities and benefits which, by accepted contemporary values, all human being should be able to claim as of right’ of the society in which they live” (Encyclopedia of Public International Law 1995: 886). Human rights are constitutive for the contemporary discourse on the moral nature of society and individuals that is simultaneously a legal discourse on rights of individuals, and obligations and accountability of states and international organizations. As such they embody the collective conscience” of a world community that is developing among citizens, judiciaries and legislatures still embedded in nation states.
The paradigm of contemporary human rights emerged with the modern nation state and has its philosophical roots in the Enlightenment tradition of Europe and the United States. The Petition of Right in 1628 and the Bill of Rights in 1689 in Britain were followed by the American Declaration of Independence (1776), the French Declaration of the Rights of Man and of the Citizen (1789), and the American Bill of Rights (1791).
The Universal Declaration of Human Rights (UDHR) adopted by the United Nations General Assembly in 1948 was the first of the four instruments” of the International Bill of Rights, which in addition comprises the International Covenant on
Civil and Political Rights (ICCPR), the Optional Protocol to the International Covenant on Civil and Political Rights (ICCPR-OP) and the International Covenant on Economic, Social and Cultural Rights (ICESCR), all adopted in 1966. The International Bill of Rights is enshrined in regional conventions like the European Convention on Human Rights (1953), the African Charter on Human and Peoples’ Rights (1986) and the Managua Declaration of the Organization of American States (1993). It is complemented by other human rights instruments that cover specific violations such as e.g. racial discrimination, forced labor, genocide, and torture, or address and protect the rights of specific groups like children, women, or migrant workers.
Human Rights are often described in terms of first, second and third generation” rights. The first generation comprises civil and political rights and liberties, mainly protecting against arbitrary interference and deprivation of life, liberty and security by the state. The major document is the ICCPR. The ICESCR details the second generation of social and economic rights such as health, housing and education. Both Covenants further include third generation rights comprising peoples’ or collective rights, prominently the right to self-determination.
Operating in the international sphere of sovereign states, the UN had to rule out strict enforcement mechanisms in favor of encouraging and promoting human rights through a system of monitoring. This system is based on Charter Bodies like e.g. the Human Rights Council (since 2006) and Treaty Bodies, which are committees of independent experts. The contemporary human rights regime is complemented by Intergovernmental Organisations, transnational human rights NGOs, and advocacy networks.
The International Bill of Rights established individuals and groups as subject and legitimate preoccupation of international law besides sovereign states, and destroyed the myth that the way in which states treat their citizens is not the concern of anyone else. This gives rise to controversies and paradoxes that are innate to the paradigm of human rights, and its relation to international law. The first of these concerns the paradox of the role of the state in human rights regimes — as both the guardian of basic rights and as the behemoth against which one’s rights need to be defended” (Ishay 2004b: 363); closely related to this is the second paradox of international accountability for the domestic practice of sovereign states” (An-Na’Im 2004: 86), and the problem of international intervention when gross human rights abuses occur; this raises questions as to the anti-democratic character” of human rights; the third controversy concerns the claim for universality of human rights; culture, traditions and practices challenge the claim to universality, and in its most extreme cultural relativism and exceptionalism deny the idea of trans-cultural and transcendent rights, and the obligation of states to comply with all human rights.
- An-Na’Im, A. A. (2004) Human rights. In: Blau, J. R. (ed.), The Blackwell Companion to Sociology. Blackwell, Malden, MA.
- Encyclopedia of Public International Law (1995) Human rights, vol. 2. Elsevier, Amsterdam. Ishay, M. R. (2004b) What are human rights? Six historical controversies. Journal of Human Rights 3: 359—71.
- Ishay, M. R. (2004a) The History of Human Rights: From Ancient Times to the Globalization Era. University of California Press, Berkeley, CA.
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