Human rights

People use the word «rights» in different senses, and so we need to clarify what they mean.

«Rights» may refer to legally enforceable freedoms. Thus, when lawyers talk about the «right to vote», they may be referring to legal rights contained in the national acts and perhaps also to the inter­national treaty obligations which place a duty on governments to organise elections. For instance, the countries, which have ratified the First Protocol to the European Convention on Human Rights (ECHR) «undertake to hold free elections at reasonable intervals by secret ballot, under conditions which will ensure the free expression of the people in the choice of the legislature» (Art 3).

«Rights» may also be used to mean something else. Campaigners for voluntary euthanasia in the UK, for example, say that people have the right to die with dignity and with the assistance of their doctor. They are not suggesting that there is currently such a legal right; rather, they use the word «right» as a rhetorical device to add weight to their moral argument in favour of mercy killing. Many philosophers prefer to avoid using the language of rights in such contexts.

Today, the term «human rights» is often used to describe people’s residual liberties from interference by State authorities. After the Se­cond World War many countries around the world, came to recognize that rights against State interference and coercion were no longer a question solely for national law. Since the late 1940s, many inter­national treaties have been established under which governments of Signatory States agree with one another to respect the basic freedoms of their citizens. Under the auspices of the United Nations, the Universal Declaration of Human Rights was established in 1948. Several regional treaties were subsequently created, including the ECHR, which came into force in 1953. These treaties were new forms of international law. First, the countries, which are parties to them, agree with one another to respect the rights of people within their jurisdiction; i.e. international law had been regarded as only regulating the relations between States. Secondly, these treaties established tribunals and procedures for monitoring and enforcing the parties’ compliance with their treaty obligations.

The term «human rights» is not limited to the freedoms people have from unjustified coercion by State authorities. Several international treaties seek to protect political rights to participate in collective decision-making, such as the First Protocol to the ECHR. «Human rights» also extends to some economic and social entitlements.

There are many jurisprudential debates about the nature of rights and how they are expressed in law. There are two particular con­troversies: what is the source of human rights; and are they universally applicable to all times and places? For many legal theorists, human rights exist because they are «natural» or «inalienable» attributes to being a human being. Rosalyn Higgins states that:

Human rights are rights held simply by virtue of being a human person. They are part and parcel of the integrity and dignity of the human being. They are thus rights that cannot be given or withdrawn at will by any domestic legal system [Problems and Processes: Inter­national Law and How We Use It, 1994, Oxford: OUP, p 96].

In the past, there have been great philosophical debates over whether such «natural» rights existed, but with the drafting of international legal charters to human rights after the Second World War, these controversies have become less pressing for lawyers and politicians, as they are now able to see those instruments themselves as the source of human rights.

Another debate around the nature of human rights is, therefore, whether they are universal and timeless, or contingent on culture and temporary. This is often part of a more general debate about the natu­re of liberal democracy. Some legal scholars are anxious to stress the universal aspects of human rights, others are less certain.

The rights set out in international treaties seeking to protect liberty rights are important to the system of liberal democracy for two main reasons. One is that rights to liberty go to the core of what it means to be a human being. Without them, a person is little more than an automaton — a member of an army rather than a citizen belonging to a community. In other words, such rights provide a basis from which to argue that there are areas of personal freedom, which should not be violated by State authorities (including Parliament and the judiciary). A second reason is that many liberties are the pre-conditions for mea­ningful democracy. Parliamentary elections and the process of legis­lation are valuable ways of making collective decisions for a society only if people’s basic freedoms are respected. Suppose, for example, a government calls an election, but bans other political parties, sup­presses dissenting opinion, confiscates critical literature, puts its opponents in jail without fair trial, kills them or imposes internal exile. Even if the governing party wins a majority of votes, its election and its subsequent actions would lack legitimacy.