International Human Rights

A Comprehensive Introduction

Michael Haas

• Publisher: Routledge
• Year: 2013
• Print ISBN: 9780415538206
• eBook ISBN: 9781135005788
• Topic: Politics & International Relations
• Subtopic: International Relations
• Index: Politics & International Relations

This book provides a comprehensive introduction to international human rights -- international human rights law, why international human rights have increasingly risen to world prominence, what is being done about violations of human rights, and what might be done to further promote the cause of international human rights so that everyone may one day have their rights respected regardless of who they are or where they live.

It explains:

• how the concept of international human rights has developed over time
• the variety of types of human rights (civil-political rights, economic-social rights, as well as a delineation of war crimes)
• empirical findings from statistical research on human rights
• institutional efforts to promote human rights
• an extensive listing of international human rights agreements
• identification of recent prosecutions of war criminals in domestic and international tribunals
• ongoing efforts to promote human rights through international aid programs
• the newest dimensions in the field of human rights (gay rights, animal rights, environmental rights).

Richly illustrated throughout with case studies, controversies, court cases, think points, historical examples, biographical statements, and suggestions for further reading, International Human Rights is the ideal introduction for all students of human rights. The book will also be useful for human rights activists to learn how and where to file human rights complaints in order to bring violators to justice.

The new edition is fully updated and includes new material on:

• the Obama presidency
• the Arab Spring and its aftermath
• the workings of the International Criminal Court
• quantitative analyses of human rights
• war crimes.

CHAPTER 1 Introduction

DOI: 10.4324/9780203726860-1

A most astonishing development in world history is occurring today. Concern over the observance of human rights clearly has become such a high priority that some current and former government leaders have been brought to justice for violations of international human rights within domestic and international tribunals. One might conclude that the world community has determined that the horrors of the twentieth century, such as mass murder by governments, will not be repeated in the twenty-first century by calling to account contemporary human rights violators as states additionally confront the challenge of international terrorism. The fulfillment of the goal of universal respect for human rights has become the most prominent ethical challenge of our time.

Court Case 1.1 The Arrest and Trial of Augusto Pinochet (2000–2006)

In 1998, Augusto Pinochet (1915–2006) was arrested in London for extradition to Spain to be tried for crimes against humanity committed while he was president of Chile from 1973–1990. after considerable legal maneuvering, as well as a return to Chile, Pinochet was indicted by a Chilean court in 2000 for several crimes, including kidnapping, murder, torture, and illegal burial. His trial was ongoing at the time of his death.

The world is changing dramatically in the present age of rapid communication and continual movement of goods, ideas, messages, persons, and transactions across international borders. What happens to individuals in one country often has profound implications for other countries. For example, sweatshops operating with hazardous working conditions or child labor in poorer countries may compete with businesses that respect workers' rights in industrial democracies. Human rights are not only at the forefront of concern today for prosecutors and criminal lawyers but also for businesses, consumers, trade unions, and workers in the global economy.

The present volume seeks to explain the philosophical traditions and historical forces that have brought human rights issues into the international arena as well as to identify the variety of human rights and the many concrete efforts to improve human rights observance around the world so that readers will not only appreciate that human rights have a solid intellectual and legal foundation but also will become aware of what is being done to improve human rights observance today. First, however, fundamental terms need to be clarified.

Basic Definitions

The world today consists of states with porous borders that relate to one another economically and in many other ways. The term international refers to a relationship that involves or transcends two or more individual states. For human rights to be viewed in an international context, there must be reference to norms that are designed to apply on a worldwide basis. Sometimes the term “international” is contrasted with “regional,” the latter referring to a smaller, contiguous geographic area of the globe.

Human refers to homo sapiens, those who in some accounts descended from Adam and Eve, rather than to animals, minerals, and vegetables.

The term rights has many possible meanings. One common dictionary meaning is “the power or privilege to which one is justly entitled,” with such examples as property rights, mineral rights, stockholder rights, and film rights. But none of the four examples appears central to what is meant by human rights, and the phrases “power or privilege” and “justly entitled” suggest that a right is acquired by special means rather than possessed from birth by all persons regardless of race, color, creed, gender, and the like.

Although there is no consensus on the precise meaning of the term “human rights,” nearly everyone agrees that human rights are invoked to provide the ability to demand and enjoy a minimally restrictive yet optimal quality of life with freedom from interference with legitimate behavior, equal justice before law, and an opportunity to fulfill basic cultural, economic, and social needs. At the same time, the identification of specific rights has changed over time; new rights have emerged as humans have redefined their perspectives about what is desirable and intolerable as civilized beings.

Thus, the concept of “human rights” should be perceived as a means, not an end. The end is to allow humans to enjoy the good life. Some advocates of human rights, thus, assume that the good life is effectively attained by focusing political discussions on inalienable entitlements of human beings.

Rights also presuppose responsibilities. Humans must be moderate in their pursuits, respecting the rights of others. Institutions of governments are responsible both for protecting against abuse and injustice and for ensuring and facilitating human development. If humans and governments act otherwise, the human rights project will end. In other words, there must be a culture and an institutional framework to support what individuals and groups claim as their rights.

A fuller understanding of the term “international human rights” requires a discussion about the different ways in which alternative conceptions have been formulated. One may find greater enlightenment by examining the presumed sources of rights, rights as legal relations, the practical effects of assuming the existence of rights, and by contrasting types of rights through an analysis of subcategories.

Sources of Rights

Philosophically, the term “rights” has at least two types of meanings:

• Moral Rights. A “right” can be viewed as an ethical justification for setting up, maintaining, and respecting protections of individuals. In other words, “rights” owe their origins to such basic values as autonomy, dignity, equality, and survival. The logical inference is that certain values should be upheld institutionally. But how can one know what is a moral right? Presumably, moral rights are established by argumentation, by appeals to something called “fairness” or “justice,” or by the principle that humans should possess “freedom.” According to philosopher Alan Gewirth (1912–2004), one cannot act as a moral person unless one is free from constraints on one's rights. The moral rights approach is a rationalist understanding of rights, in which rights are considered to be self-evidently imprescriptible.
• Legal Rights. Alternatively, a “right” can be defined as a type of institutional arrangement in which interests are guaranteed legal protection, choices are guaranteed legal effect, or goods and opportunities are provided to individuals on a guaranteed basis. How do we know what is a “right”? The answer is to read a law book. A focus on legal rights is a positivist understanding of rights in which humans gain or lose rights depending upon the current state of the law. In short, a “right” can exist only when laws or judicial opinions say so specifically.

The American Declaration of Independence of 1776 states moralistically that the rights of life, liberty, and the pursuit of happiness are inalienable and self-evident, but the meaning is vague. In contrast, specific legal rights are contained in the French National Assembly's Declaration of the Rights of Man and Citizen of 1789 and the ten constitutional amendments adopted in 1791 known as the American Bill of Rights. However, the Ninth Amendment provides for the possibility of an expansion in the number of identifiable rights. For example, there is no mention of a right to marry in the Constitution, as amended. Nevertheless, the US Supreme Court asserted that there is a right to marry in 1967 by ruling in Loving v. Virginia (388US1) that no state could deny a marriage license to a man and a woman of different races. However, the same right has not been universally recognized to apply to couples of the same sex.

“Rights” as Legal Relations

Nevertheless, conceptual clarity remains elusive, even for legal rights. Following the formulation of law professor Wesley Hohfeld (1879–1918), four different types of legal relations are often called “rights”:

• Powers are the capabilities of a particular person to uniquely do something because of power status. For example, individuals have a right to will possessions to anyone. However, almost everyone has the power to harm another, so powers must be limited or there would be no rights.
• Immunities are actions that persons with higher power status cannot do to ordinary persons. For example, if someone owns property, and oil is found on the property, a rights-respecting government will not have the power to take that property away from its owner without providing reasonable compensation. Immunities are rights to which individuals are entitled.
• Liberties, sometimes called privileges, are actions that can be taken without the approval of anyone or any institution. However, there is a limit to the exercise of liberties — when the liberties of others are infringed. The term civil liberties, as used in the United States, refers to prohibitions on what government can do to individuals, as specified in the Bill of Rights, where everyone is assured of such liberties as freedom of the press. Civil liberties can also be called civil rights.
• Claim-Rights are obligations of others to us; they are the other side of the same coin as liberties. To claim a right to privacy, for example, is to tell others that they should not intrude into our personal space. The term civil liberties, as used in the United States, refers to the obligation of government not to infringe on various individual freedoms identified in the American Bill of Rights. Minority rights, on the other hand, are primarily based on three amendments (Thirteenth, Fourteenth, and Fifteenth) to the American Constitution that were passed shortly after the American Civil War (1861–1865) in order to obligate nonminori ties not to discriminate against former slaves. Later constitutional amendments and laws have expanded coverage to other classes of persons, notably other minorities, women, the elderly, the disabled, and gays. Minority rights protections recognize that only governments effectively have the ultimate power to stop widespread discrimination against persons who belong to nonmainstream groups, whereas civil liberties refer to what government is not supposed to do to all persons.

Liberties and claim-rights are together understood around the world to mean “human rights.” But rights are also formulated in terms of immunities and liberties to assure individuals that they have many residual powers outside the sphere both of government and of other powerful institutions. Because lawyers, political scientists, sociologists, and others approach the subject with differing perspectives, a debate is ongoing among scholars about the formal definition of “human rights.”

Effects of Human Rights

Philosopher Isaiah Berlin (1909–1997) distinguishes between two types of liberty. Negative lib...

Table of contents

• Cover Page
• Half Title Page
• Frontmatter Page
• Title Page
• Copyright Page
• Contents
• List of tables
• Preface to the second edition
• List of abbreviations
• 1 Introduction
• 2 The Philosophical Basis for Human Rights
• 3 The Historical Basis for Human Rights
• 4 The Contemporary Basis for Human Rights
• 5 Civil and Political Rights and Crimes Against Humanity
• 6 Economic, Social, and Cultural Rights
• 7 Crimes Against Peace and War Crimes
• 8 Quantitative and Theoretical Dimensions
• 9 United Nations Charter-Based Organizations
• 10 Treaty-Based Global International Organizations
• 11 American Approaches to International Human Rights
• 12 European Approaches to International Human Rights
• 13 Developing Country Approaches to International Human Rights
• 14 New Dimensions and Challenges
• Glossary
• References and further reading
• Notes
• Index