HumanRightsCourse

Human rights

Introduction

The understanding of a subject as rich and well-structured as the subject of

Human rights require a good understanding of a number of
concepts and notions that relate both to the general theory of Law and to Law
constitutional and public international law.

However, in the context of an initial introduction to the subject, it is appropriate, in a

first, to understand the legal meaning of the terms that make up the name or
the denomination (A) before giving its definition (B) and the main
features (C).

A- Legal significance of the terms of the matter

a- The rights
In the French language, the term 'right' has at least two meanings.
This term indeed refers to either objective law or subjective law. Both
meanings are certainly part of the same discipline, namely the legal discipline,
but do not refer to the same thing.

Objective law is indeed generally defined as the set of rules.

legal systems that organize people's lives1within a State (Domestic law)
in an international framework (International Law).

The subjective right is not defined as a set of rules but as

a faculty of doing or having something, a prerogative, recognized and protected
par le Droit (objectif).

1
The term 'person' legally refers to any individual to whom the Law recognizes personality.
legal, that is to say, the quality attributed by Law (objective) / by the State / by public authorities, to a
individual or entity in order to recognize it legally. It is therefore a quality attributed
to prove the legal existence of an entity or an individual and enable them to be a subject of Law.

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Between the two meanings of the same term "law", there is already a first
difference in nature; objective law is a set of rules while law
Subjective is a prerogative, that is to say an advantage, a privilege that certain...
people will have and which allows them to do or refrain from doing something
to choose, to have or to refuse something.

There is then a difference in the object of each meaning: the law

The objective organizes the rights and obligations of individuals while subjective law
only concerns privileges and does not relate to obligations.

It is important to point out in this regard that if a person considers or claims that they
having a specific privilege or advantage, the latter does not constitute a right
subjective only in the case where it would be recognized by the Law (objective) and to the extent
and the limits of its legal recognition. Prof. Jacques Mourgeon writes on this
proposes that for a prerogative to be considered as a subjective right, it
must: 'be subject to a special status: the legal status. It is necessary and
sufficient, that the rule touches it in some way: through acceptance, limitation,
the organization, the regulation, the obligation or prohibition: point of law without Law
et point de droit qui ne soit une prérogative, mais pas nécessairement l’inverse»2.

In several societies indeed, certain personal choices related to private life...

persons are not organized by Law and fall under private freedom and life
in the time of people, they are not explicitly allowed nor explicitly
forbidden. These choices are prerogatives but are not rights
Subjective, the persons concerned can benefit from them or implement them.
according to their good will without incurring any sanctions, provided that the use of these

prerogatives do not interfere with public order. This is the case, for example, of the
freedom to dress, to choose one's eating habits, to smoke, to marry (but

2
J. Mourgeon, The Rights of Man, Paris, PUF, 6th ed. 1996, p.6.
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not necessarily choosing one's partner3or to dispose of one's life. On this last point,
In some cultures, everyone has the right to end their life.4in the way
she chooses. It is therefore allowed to commit suicide or to practice euthanasia when
the person concerned wants it without it being subject to sanction or
repression5.

Lastly, it is important to draw attention to one of the characteristics

principal aspects of subjective rights, namely, the freedom that the holder has to exercise it
use or not when it pleases him (under the conditions set by the law). The holder
d’un droit subjectif est en effet libre d’en faire usage ou pas et personne ne doit
to force him to use it if he doesn't want to or to prevent him from using it if he wants to. It is
it results that subjective rights and obligations are two sides of the same coin and
who as a result never meet, they are the opposite of each other. What is in
The effect of a right for a person at a given moment can never be the same.
time and for the same person an obligation. The same act is for the person
either a right or an obligation, it can never be both at the same time for
the same person (from a legal point of view of course).
A subjective right can, however, create an obligation for others, i.e.
that it can constitute the foundation of an obligation that falls on others. Indeed,
when the holder of a subjective right chooses to exercise it, an obligation arises to
3
In several societies, certain age and gender conditions surround this freedom. Thus, marriage of
marriage between parents and their ancestors or descendants is also prohibited.
marriage between homosexuals...
4
But not to the lives of others. The question, however, remains raised regarding the lives of fetuses and the
recognition of a woman's right to abortion within the scope of her freedom to dispose of her body.
5
Article 206 of the Tunisian Penal Code provides: 'Anyone who, knowingly, is punishable by five years of imprisonment.'
assistance with suicide.
In France, as Robert Badinter noted during the debates on the Leonetti law, 'suicide is a
freedom... It is neither an offense nor a crime and, as a result, there can be no complicity." In the penal code
Article 223-13) only formally prosecutes incitement or provocation: 'The act of provoking
Anyone who assists another in suicide is punished with three years of imprisonment and a fine of 45,000 euros when the
provocation was followed by suicide or a suicide attempt. The penalties are increased to five years.
imprisonment and a fine of 75,000 euros when the victim of the offense is a minor
of 15 years." Article 223-14 specifies: "Propaganda or advertising, by any means, in favor of
The possession of products, objects, or methods recommended as means to take one's own life is punishable by three years.
imprisonment and a fine of 45,000 euros.

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the others not to prevent him from exercising his right or to obstruct it
in the choice he made. Similarly, when a person chooses not to make use
of a determined right (for example, the right to vote or to practice a religion),
Everyone else is required to respect this choice and they are forbidden from forcing him to
exercise this right.

the man

The man in question regarding human rights is understood

Every human being, every living human individual is entitled to the rights provided for in
this matter without any other condition. No importance is therefore given to
his age or sex or language or nationality or religion or marital status or mental state or his
health status or their economic or social situation or their political opinions or
religious or personal beliefs or moral convictions or private morals. It follows that
that every individual qualified as a human being is entitled to these rights even if it concerns
of a delinquent or an outlaw, regardless of the severity of the criminal acts
that he could have committed. It could be the most horrible of criminals, and whatever it may be
the inhumanity that he has been able to show in the crimes he has committed, he must however
benefit from their rights as human beings. Detainees and prisoners
therefore benefit from these rights just like any human being.

This definition of Man finds its legal basis in Article 2 of the

Universal Declaration of Human Rights of 19486which provides that 'Everyone
can claim all the rights and freedoms proclaimed in the
present Declaration, without any distinction, notably of race, color,
sex, language, religion, political opinion or any other opinion, origin
national or social, of fortune, of birth or of any other situation.

6
IelstàprécsierquelaDécalraoitnn’aaucunevaelurconrtaginaneteneel-mêmeC
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adopted by the United Nations General Assembly. This is only a statement of intentions, devoid of
of mandatory or binding value. However, it has served as a material source for the various
conventions relating to human rights.
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Furthermore, no distinction shall be made based on political or legal status.

international of the country or territory of which a person is a national, that
pays ou territoire soit indépendant, sous tutelle, non autonome ou soumis à une
any limitation of sovereignty.

Similarly and in accordance with Article 2 of the International Covenant on Civil Rights
and policies and in article 2 paragraph 2 of the International Covenant on Human Rights
economic, social and cultural, adopted both on December 16, 1966, all
Individuals located in the territory of the States parties to the two covenants must
to benefit from the human rights listed therein without any distinction. This relates to the
definition of Man as provided by the UDHR (Universal Declaration of Human Rights
Human Rights.

It is important to note that the term 'human rights' is preferred in

certain comparative legal orders, and under the impetus of certain organizations that
militant for equality between men and women, to that of human rights.

c-De

In the expression "human rights", the noun complement "of" denotes the
possessive: rights that a person possesses and that are inherent and natural to them, which
are born with him and are tied to his quality of being human.

To say that there are natural human rights, inherent to human nature is an idea
ancient. It dates back to Natural Law and varies in its conception and in its
content according to philosophical currents and ideologies. It can be found
already in the writings of Plato and Aristotle where there was the idea of a universal nature
of Man. The sophistic school presented the idea that Men were
equal by nature. The conception of what a natural right of human beings is has evolved
from until the modern era.

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B-DefinitionofHumanRights
It is "the set of rights that condition both the freedom of Man,
his dignity and the blossoming of his personality7It is the set of rights that
allowing to preserve the dignity of Man and enabling him to realize himself and
to live one's person, to fulfill oneself. Their purpose is therefore directly and
intimately linked to the freedom of individuals and the respect for their human dignity without

no other reason or foundation.

Three remarks must be made regarding this definition:
Firstly, and despite the clarity of this definition, the content of the rights of
Man does not achieve unanimous agreement because the notion of human dignity varies depending on

epochs, cultures, and conceptions. Human rights will be considered in

this course from a determined point of view, that of the UN design.

Secondly, and from the point of view of their nature, human rights are
are divided into two main categories: 'rights to' and 'rights of'. The
"Rights of" are the rights to do something, active rights in a way.
(right to strike, right to move, right to express oneself, right to associate, right to
manifester...). While the 'rights to' are rights to the attainment of something
chose, passive rights from a certain point of view (right to health, right to education,
right to physical integrity, right to safety...

Thirdly, an important distinction must be made between rights of

Man and public liberties. Public liberties can indeed be defined
such as 'self-determination powers, recognized and organized by the State,'
which Man … chooses his own behavior8(their public character)
referring to their registration and their guarantee by Positive Law and not to
their use by several people; these freedoms can indeed be

7
ROCHE (Jean) and POUILLE (André), Public Liberties and Human Rights, 13thedition, 1999, p.6.
8
RIVERO (Jean),Libertés publiques, Manuel, éditions PUF, 1973.
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individual, that is to say exercised by each person individually, or

collectives).

As previously defined, human rights are not limited to

only to the claim or exercise of a freedom; other rights of which the being
humans enjoy the right to demand from society the satisfaction of their vital needs
such as the right to work, social security, health, culture or
the instruction… etc. In these latter cases for example, it is indeed about rights that make
part of human rights without it being about freedoms; "their recognition
by positive law gives Man the power to demand a debt, but does not establish
not a public liberty9.

The concept of human rights thus encompasses that of public liberties which
are just one aspect among others. Other rights such as the right to peace,
sustainable development, to equality, to non-discrimination, to a healthy environment
and balanced, are an integral part of human rights but are not
freedoms.

C- Characteristics of human rights

Certain elements allow us to distinguish human rights from all the
other subjective rights found in positive law, thus allowing them to
characterize. Indeed, in addition to their object, human rights are characterized by
three distinctive signs :
These are extrapatrimonial rights, they cannot be evaluated in money.
and therefore cannot be part of a person's financial assets. By
consequently, they are non-transferable (by means of acquisition or inheritance by
inalienable, meaning they cannot be sold or
exchanged or lent or subject to a transaction or a donation. They are

9
RIVERO (Jean), op. cit., p.17.
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finally imprescriptible meaning that they do not expire after a

certain times, they are naturally linked to every human being since their
birth until his death even if he makes no use of it.

In the UN design10human rights, these are rights

universes in the sense that every human being must benefit from it because of their
quality of being human. They must therefore be generalized to all peoples and
all nations, and benefit everyone without exception, regardless of their
culture or their traditions.

In the UN conception of human rights, these are rights

indivisible interdependent sets in the sense that it is not possible to
only adopt part and reject another. These are rights that
are interconnected, they are indivisible, they must be adopted
as a whole, without distinction because they are interdependent, that is to say
that the existence of each of these rights depends on the existence of the others11,
They must therefore be adopted as an unpackage, in their entirety.

10
That is to say the concept conveyed by the United Nations (UN) since the Declaration
Universal Declaration of Human Rights, UDHR (December 10, 1948).
11
The right to life has no meaning in the absence of the right to work; freedom in all its forms cannot be
realized in the absence of the right to life, the latter also depends on the right to health and the right to a level
of decent living. All these rights and others require the realization of the right to peace. Rights are made by
as a result of being part of one and the same body, they are indivisible.

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