BY SACHA HARTMANN.
HUMAN RIGHTS: UNDERSTANDING THE CONCEPT
nyone who has heard of the concept of human rights will have some idea of what they are about and what is meant by that deceptively simple phrase. Since they have been mentioned in the media with increasing frequency, in particular in conjunction with the world’s troubled areas, it is prudent to become familiar with the concept and law behind human rights lest our exposure to the words injures us to their importance.
Human rights are the rights to life, liberty, equality, and dignity of the individual which are guaranteed by many countries’ constitutions. To place this in perspective, however, one must realize that these developments are quite recent and, in many ways, still fragile. The first concrete step taken towards what would ultimately lead to the goal of equal rights of all was the Magna Carta, the charter of English political and civil liberties granted by King John of England in June 1215. It put an end to the monarchy’s absolute power.
With the birth of Parliament in England, other steps were eventually taken to insure certain fundamental rights. Such rights were also expressed in the Declaration of Independence of the original thirteen states of the United States of America and the Virginia Bill of Rights, both drafted in 1776. The Declaration of the Rights of Man, approved by the National Assembly of France on August 26, 1789, went along very similar lines. As important as these documents were as stepping stones towards human rights, they all contained one important flaw of the times. The rights set forth in all of them were, quite literally, the rights of man.
Article 1 of the Virginia Bill of Rights holds: “That all men are by nature equally free and independent, and have certain inherent rights, of which, when they enter into a state of society, they cannot, by any compact, deprive or divest their posterity; namely, the enjoyment of life and liberty, with the means of acquiring and possessing property, and pursuing and obtaining happiness and safety.”
Articles 1 and 2 of the Declaration of the Rights of Man state:
“Men are born and remain free and equal in rights. Social distinctions may be founded only upon the general good.”
“The aim of all political association is the preservation of the natural and imprescriptible rights of man. These rights are liberty, property, security, and resistance to oppression.”
While both guaranteed that all would be viewed and treated equally in the eye of the law, and that no one shall be oppressed, the “social distinctions” remained in place. Women, as before, remained less equal than their male counterparts. They remained second class citizens, and this did not begin to change for nearly two hundred years.
It wasn’t until after 1945, when the United Nations was created and established, that the concept of human rights, as opposed to the rights of man, was made official. In 1948 the United Nations General Assembly adopted the Universal Declaration of Human Rights, which was soon followed by the International Covenant on Economic, Social, and Cultural Rights and the International Covenant on Civil and Political Rights, both of which were adopted by the on December 16, 1966.
The difference between the Universal Declaration of Human Rights, 1948 and its forebears is evident in its very first articles:
Article 1. 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 2. Everyone is entitled to all the rights and freedoms set forth in this declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.
Furthermore, no distinction shall be made on the basis of the political, jurisdictional or international status of the country or territory to which a person belongs, whether it be independent, trust, non-self-governing or under any other limitation of sovereignty.
Not once, in this declaration or in either international covenant, are rights and freedoms assured with specific reference to only man or woman. In this sweeping declaration all people, everywhere, have been declared to be equal. Unfortunately, transforming this theory into practice is still under way more than fifty years later.
In some cases the law is forced to catch up with society, hence old laws are removed or changed and new laws are made. In this instance it is society that has lagged behind and must change to catch up. Although the media focus of such racial and religious intolerances is usually on Africa, the Middle East, and Asia, they also exist in America and Europe in the shape of such entities as the infamous IRA (Irish Republican Army), the KKK (Ku Klux Klan), and various neo-Nazi movements.
The latter two groups in particular have been historically, and in many cases allegedly continue to be presently, responsible for inciting and promoting racial and religious intolerance. Expectedly, such activity violates a host of human rights, including both subsections of Article 20 of the International Covenant on Civil and Political rights, which hearken back to the persecution of the Jews under the Nazi regime. These state that (1) any propaganda for war shall be prohibited by law and that (2) any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law.
The International Convention on the Elimination of all Forms of Racial Discrimination, 1966 defines racial discrimination to mean any distinction, exclusion, restriction or preference based on race, colour, descent or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms in the political, economic, social, cultural or any other field of public life.
Many violations of human rights are more subtle than burning crosses and car bombs, and yet they are a potentially greater threat to society precisely because they may be overlooked. For this reason many groups have been founded to track human rights violations in many countries around the world. Perhaps the largest and best known of these is Amnesty International, which grew from a seed planted by British lawyer Peter Benenson in the form of an article written in 1961, “The Forgotten Prisoners.” In July of that year delegates from Belgium, UK, France, Germany, Ireland, Switzerland and the United States decided to establish “a permanent international movement in defence of freedom of opinion and religion.”
Illegal imprisonment, a violation of Article 9 of the Universal Declaration of Human Rights (“No one shall be subjected to arbitrary arrest, detention, or exile.”), particularly of people who are deemed politically inconvenient in the offending country, is a frequent problem. This violation typically goes hand in hand with the violation of Article 10 of the Declaration, which entitles all to full equality in a fair and public hearing, and Article 10 of the International Covenant on Civil and Political Rights, which provides that “all persons deprived of their liberty shall be treated with humanity and with respect.” Both have been concerns of Amnesty International since its inception, and in its first three years it adopted nearly 1,400 prisoners and worked for the release of 329.
Groups such as the International Committee of the Red Cross also do their part to uphold certain rights guaranteed by the many international covenants and agreements. In some cases they are thwarted in their efforts, for example by one party to one of the civil wars or ethnic conflicts in Africa, which can prevent them from having any or proper access to the civilians in need. In preventing those people from obtaining the food, clothing, shelter, and medical care to maintain the minimum standard of living necessary for health and well-being, human rights have been violated (Universal Declaration of Human Rights, Article 25(1)).
War torn areas are always prone to abuses of human rights and those articles created to protect them, including not only unlawful imprisonment or otherwise impinging upon the right to move freely, but also such gross violations as murder and genocide. These are the violations most focused on because their violation is most the abhorrent, but again, this is done at the cost of other rights that must, by necessity, be considered equally important.
Article 3 of the Universal Declaration of Human Rights holds that everyone has a fundamental right to three things. Life and liberty are the two concerns that are most frequently raised and discussed, and these range from the death penalty to war crimes and from imprisonment to closed borders. The third right, the right to security of person, is lost in the shuffle. Human beings have a fundamental right to be safe.
Other concerns that are often raised, but rarely, if ever, in the context of human rights, are the right to education and to freely engage in one’s cultural and religious traditions. Laws exist to care for and protect both, and these are known, but the awareness must exist that those who go against these precepts are not only breaking the law, they are also violating the human rights of others.
In some instances it may appear that one right may impinge on another, as is was the case with Afghanistan under Taliban rule. The strict interpretations of Islam’s cultural and religious traditions oppressed women in the extreme. As has been mentioned before, where such conflicts exist it is for the society to change, not the law. Although it did lead to the use of force, Afghanistan also serves as an example that the world at large will not tolerate those who wilfully violate human rights, whether the State in question is a member of the United Nations or not and whether it is a party to the conventions on human rights or not.
Awareness is the key to solving any problem. Hearing of human rights violations, no matter how frequently, is no remedy if the concept of human rights remains nebulous and vague. Possessing a full awareness of what human rights entail and encompass is the only way to appreciate the suffering some of the world’s peoples must endure. This, in turn, can show us how far we – humanity as a whole – must still come before we can all share in this ideal. Once this awareness exists at society’s most basic level true progress can be made.
The Author is an International Corporate Lawyer.