CONCEPTS AND THEORIES 13
North Atlantic Treaty Organiza
authorized by the United Nations and thenumerous truth commissions all
tion (NATO), and the establishment of
needto developmechanisms and insti
attest to agrowing consensus on theprevent, human rights violations. Pco
tutions toaddress and redress, if not problematic to secure because
nomic, social, and cultural rights are more relationship between policies
their realization depends on acomplicteddevelopment, debt, debt relief,
strongly influenced by politics, trade andpolitical conditions in countries
and economic assistance, as well as the most severe, Cultural rightsare
where economicand social deprivations are
boundaries of cultures and the
also problematic to secure because the
boundaries of statesare enormouslyincongruous,
What Are Human Rights?
Human rights--those rights that inhere in all people by virtue of their sim
interdependent, and not sub
ply being human-are inalienable, indivisible,
nonderogable(Morsnik 2009). They
ject to derogation-or in legal terms, fundamental to being human
are considered inalienable because they are humanity, Any attempt to
and cannot be separated or alienated from our through due process of
restrict or remove them must be undertaken only
of crimínal violation of
law and only with a just reason, such as convíctíon all necessary to live a
are
the law. They are also indivisible because they
is taken away or
fully dignified and decent life: that is, if anyone of them impaired. Their
impaired, the fundamental dignityand decency of life is one another:
interdependence means that they are mutually dependent on
without the ful
for example, the exercise of political rights is meaningless
fillment of basic economic, social, and cultural rights.
Human rights are also legally not subject to derogation, meaning that
justification.
they cannot be limited or taken away without extraordinary
or assembly
For example, states may derogate rights like freedom of speech
under declared states of emergency. Article 4, paragraph 2, of the Interna
tional Covenant on Civil and Political Rights (ICCPR) explicitly states that
no derogation may be made to the right to life; freedom from torture or
cruel, inhuman, or degrading punishment; right to knowledgeable consent
for medical or scientific experimentation; freedom from slavery or servi
tude; freedom from imprisonment because of inability to fulfill a contrac
tual obligation; the principle of legality in the field of criminal law (one
cannot be tried for offenses that were not offenses at the time of commis
sion);right to recognition as a person before the law; and right to freedoms
of thought, conscience, and religion as spelled out in the covenant.
If rights inhere in us because we are human, then our humanity is the
source of human rights, which is a moral claim. Human rights are legal.
14 WHAT ARE HUMAN RIGHTS?
political, and
political, and socially created, and they raise moral, legal,
like whether every
social questions. They even raise economic questionsnecessities of physical
human being who is born has a right to the essential also be added,
existence-food, water, and shelter. Basic health care can
must be stipulated. This
but then what constitutes basic health care needs
basic human
approach to defining human rights is one of focusing on culturally specific
are
or basic rights. The question of whether human rights
4, raises one of the
or universal, discussed more thoroughly in Chapter
perennial questions in debates about human rights. philosophi
Regardless of how moral claims about human rights are
facts created by
cally grounded, they remain social facts, or nonphysical context of those
social processes that only have meaning within the
processes. Money, for example, is a social fact most people use every day,
but it is really just paper (or metal) with certain pictures, words, and num
bers imprinted on it. Without social agreement among its users about its
value and how it can be used, it would remain aphysical fact of atrivial
naturea piece of paper with things printed on it. Similarly, as a social
fact, a right can be held by one person and asserted against someone else or
against a social institution. Rights are intangible resources allocated by
political institutions and secured by law. Who gets what rights, when, how,
and where, and how they will be promoted, protected, and enforced are
political and legal questions. Whether the moral basis of human rights is
attributed to God, natural law, or our humanity, they are not observable
until they are recognized politically and, arguably, enforced legally.
The question of how moralclaims of human rights are grounded should
not be dismissed as an inconsequential metaphysical discussion. The moral
basis of human rights depends on how questions like Where do human
rights come from?" and "Why should we have human rights?" are
answered, and those answers, in turn, compel people to support human
rights,or not. These questions are foundational and normative to political
and legal order, and changes in that order can be observed over time. Dis
cussing the origin of the idea of human rights necessarily involves the
philosophical assumptions of personal and particular moral [Link]
tend to answer the question-Where do human rights come from?"in
one of three basic ways.
First, some suggest that human rights are God given. In his 1963 "Let
ter from Birmingham Jail," Martin Luther King Jr. wrote, "We have waited
for more than 340years for our COnstitutional and God-given rights" (King
1990). While the allusion to God may strengthen and broaden the appeal of
such arguments, such an appeal can be problematic because people have
different conceptions of God and different religious frameworks for making
rights claims, for example, opposition to legal abortion is often grounded in
religious doctrine of "ensoulement," when a fetus becomes a human being
CONCEPTS AND THEORIES 15
endowed with the same rights as other human beings. However, different
religions have different answers to this question.
The second answer comes from Thomas Jefferson and the US Decla
ration of Independence: "We hold these truths to be self evident, that all
men are created equal." The self-evident argument is premised on natural
law, the idea of an implicit moral order that underlies human society. The
moral order of natural law derives from human nature, from the world in
which humans live, and from the ability of humans to be reasonable and
reflective. In addition to equality, the signatories regarded as self-evident
the belief that humans are 'endowed by their Creator with certain inalien
able rights; that among these are life, liberty, and the pursuit of happiness."
Those who favor a natural law orientation also often argue that law can
never be entirely separated from morality and that some kinds of law ulti
mately rest on the authority of moral claims. The argument for human
rights as based in natural law is similar to arguments that locate the moral
authority for human rights in a concept of God because in both cases the
authority on which the moral claim rests cannot be contested through log
ical debate. However, natural law does not rely on an appeal to God or
divine authority. Rather, it derives from the Enlightenment notion that rea
son is a universal human capacity that leads people to certain moral con
clusions. Holding "truths" as "self-evident" means that any reasonable per
son on reflection would come to the same conclusion that all human beings
are created equal.
Third, human rights are the rights allpeople have by virtue of their
being human. This answer also implicates natural law because rights are
conceived as part of our nature or existence as humans. This argument
derives both from the belief that being human involves something transcen
dent and that humans have widely recognized down through history: human
beings in a global society cannot disregard the basic humanity of others
without diminishing our own humanity. This is well known to psychologists
who study the psychological impact of torture on perpetrators (Jayatunge
2010). This idea is elegantly captured by the African idea of ubuntu, which
roughly translated means "my humanity is only fully realized through my
relationship with and respect for your humanity" (Battle 1997:5).
Even though human rights may not exist as social facts until a consen
sus about their existence is expressed politically, and even though they are
not enforceable without both laws and the political will to enforce them,
one should still talk about human rights in the absence of political agree
ment, legal recognition, and a willingness to enforce the law. Indeed, poli
tics-the authoritative allocation of values, as David Easton (1965) put it
is very much about discourse as well as decisionmaking. In democracies,
decisionmaking is preceded by discourse that takes place in both formal
and informal settings. An issue or a problem gets onto the decisionmaking
16 WHAT ARE HUMAN RIGHTS?
as,
agenda by being talked about in the media and civil society, as well
eventually, in a legislative body, where it can be acted on.
as a crime. The
Agood example is genocide and the idea of genocide
second half of the twen
term genocide did not come into wide use until the
today would not know
tieth century. However, that someone in the world
sometimes used rather
what this word means seems unlikely, though it is
Raphael Lemkin, a
loosely torefer to mass atrocities. It was originated by disturbed by the
Jewish lawyer born in Poland in 1900, who was deeply
between 1915 and 1917. He
Armenian genocide in Turkey that occurred barbarity and what
spearheaded a campaign against what he initially called
eventually conceived the term
others at the time called race murder. Lemkin and interna
national
genocide and fought to make genocide illegal under
tional law.
are mur
Human rights violations are physical, material facts. People
needs even to the
dered, tortured, made to disappear, deprived of basic action or failure
of state
point of death, and subjected to cruelty as a result
protect human
to act. But when defining, seeking agreement, and acting to
becomes apparent.
rights, their social construction as social facts also soon
freedom fighter," the
The adage that "one man's terrorist is another man's
of oppression
claim that the same act of violence can be regarded as an act
are being articulated,
or liberation depending on whose interests and values
material and social
illustrates the importance of recognizing both the
dimensions of human rights facts.
Protectingand Promoting Rights
abusive and
Rights are asserted to protect individuals and groups against
arbitrary actions by governments and private individuals as well as to pro
their
tect individuals against a governments failure to act or intercede on
behalf when others are violating their rights. An acknowledgment of basic
rights provides a shield of protection and a sphere of security. Through this
acknowledgment, an individual's rights can be asserted, thereby restraining
or limiting another's actions or obligating a third party to intervene. For
example, recognizing a right to due process means that when a government
uses coercive power against individuals, itmust do so according to a legally
proscribed processthe rule of law. Due process distinguishes arbitrary
power from authoritative power. Most elements of due process are found in
astate's constitution, but some have been progressively recognized over
time through judicial precedent and generally recognized principles of law.
Due process applies to making, enforcing, and adjudicating the law, so it
affects the legislative, executive, and judicial functions of government. The
right to a speedy and fair trial and protection against cruel and unusual pun