Introduction to Human Rights – part two

So what are human rights? To answer this I will jump for a moment into W102.

There is no formal definition of human rights – however, "’The jurisprudence of human rights’ (Shestack, 1986)" describe rights as "an array of legal relationships. Rights can be seen as entitlements, immunities (from having a legal status altered), privileges and powers (e.g. to create legal relationships)."

• Entitlements
• Immunities
• Privileges
• Powers

Of the above, can we say if any take precedence over the others? There is no fixed hierarchy of human rights. However, it has been observed that Western countries prioritise civil and political rights over economic and social rights, whereas in Third World and communist countries the reverse is true.

So where do our rights come from? Shestack again identified five sources of rights:

• theology (religion) – from religious texts.
• natural law – based upon "the law of nature", identified in the writings of Aristotle and John Locke.
• Positivism – rights derived from the laws of the state. Writers such as Jeremy Bentham focused on what rights are actually written into the law rather than what ought to be rights.
• Marxism – collective rights (of the society) are given preference as opposed to individual rights.
• The sociological approach – perspectives developed from the rise of social sciences.

The above was included to avoid confusion at this stage, but will be encountered again in W102.
Rights can be broken down into three categories:

1. Absolute Rights – these are rights that may never be breached under any circumstances, even under the conditions of war. For example, the right not to be a slave is an absolute right (‘No one shall be held in slavery or servitude; slavery and the slave trade shall be prohibited in all their forms’ (article 4 ECHR). Note: just because it is an absolute right does not mean that it never happens!
2. Limited rights – these rights have specific limitations built into the rights themselves. For example, ‘Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: (a) the lawful detention of a person after conviction by a competent court’ (Article 5 ECHR).
3. Qualified rights – may be restricted to protect the rights of others or the interests of the public. For example,‘Everyone has the right to freedom of peaceful assembly ... No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society’ (Article 11 ECHR).

Most human rights are qualified rights. They may be restricted only to the extent necessary, and any further restrictions may be challenged by the judicial process.

Human rights may be separated into different categories:

Civil rights – Rights that protect individual liberty and secure equality under the law. These are often viewed as private rights and are in place to ensure dignity.

Political rights – Rights that ensure participation in the political process.
Cultural rights – Rights that ensure cultural identity can be preserved and practised.
Social rights – Rights that ensure equal participation in society.
Economic rights – Rights that concern economic security and independence in the workplace as well as in society.
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Note: even though I have listed the categories above, does not mean that these rights are in a hierarchy. See paragraph 3. Rights may intersect in different categories as well. Human rights are usually described as being indivisible, interdependent and interrelated. For example, in order to exercise the right to vote an individual also needs basic literacy to read a ballot (right to an education). Additionally, states may create/identify new rights within its legal system.

Next: a discussion on torture.