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Bharat Malkani

on 13 January 2014

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What rights do we have?

Dr Bharat Malkani
Birmingham Law School

How do we enforce these rights?
Where do these rights come from?
A matter of law or politics?
Rights we have by virtue of being human
Rights that are held by the individual against the state
Philosophy and ethics
International politics and international relations
A right that protects the individual from the coercive power of the state
1215: Magna Carta
3 categories of rights:

a. Absolute rights

b. Rights that can be interfered with in specific circumstances

c. Rights that are qualified in general terms

What happens when rights conflict (a) with each other, or (b) with other interests and values?
Article 39: "No free man shall be arrested, or imprisoned, or deprived of his property, or outlawed, or exiled, or in any way destroyed, nor shall we go against him or send against him, unless by legal judgment of his peers, or by the law of the land."
1625: Hugo Grotius
1628: The Petition of Right
1679: Habeas Corpus Act
1689: English Bill of Rights
Second Treatise of Government
, by John Locke
“...state of perfect equality, where naturally there is no superiority or jurisdiction of one over another.”

18th Century: The Enlightenment era. Developments in science and knowledge, and the move from Religion to Reason.

1748: Montesquieu,
The Spirit of the Laws
1762: Jean-Jacques Rousseau,
The Social Contract
1792: Thomas Paine,
The Rights of Man
1785: Immanuel Kant,
Groundwork for the Metaphysics of Morals
The categorical imperative – that human beings have an inviolable degree of dignity, and must therefore be treated as an end in themselves, and not as a means to an end.

1776: US Declaration of Independence
1789: The French Declaration of the Rights of Man and Citizen
1791: The US Bill of Rights
The Rights of Man
, by Thomas Paine

Declaration of the Rights of Man and of the Citizen (France, 1789)
The Representatives of the French people, organized in National Assembly, considering that
ignorance, forgetfulness, or contempt of the rights of man are the sole causes of public miseries and the corruption of governments
, have resolved to set forth in a solemn declaration the
natural, inalienable, and sacred rights of man
, so that this declaration, being ever present to all the members of the social body, may unceasingly remind them of their rights and duties; in order that the acts of the legislative power, and those of the executive power, may at each moment be compared with the aim and of every political institution and thereby may be more respected; and in order that the demands of the citizens, grounded henceforth upon simple and incontestable principles, may always take the direction of maintaining the constitution and welfare of all.
Traditional status of the individual in
international law
State sovereignty: international law will not interfere with the internal workings of a state, and merely regulates and co-ordinates the relationship between states.
1648 Treaty of Westphalia
1945 Statute of the International Court of Justice, Article 38(a) (role of state consent in creation of international law)
Exceptions to the rule(?)
Diplomatic protection
Regulation, and then abolition, of the slave trade (1815)
Rules regulating the conduct of war (1899; 1907)
The Inter-War Years (1918-1939)
1919: Treaty Concerning the Protection of Minorities (concerning collapse of Austro-Hungarian Empire)
1919: International Labour Organization
1919: The League of Nations
On the development of the idea of human rights during the inter-war years, see: Jan Burgers:
The Road to San Francisco: The Revival of the Human Rights Idea in the Twentieth Century
(1992) 14 Human Rights Quarterly 447

"The Great Leap Forward"
(1945 / 1948)
National security and the "War on Terror"
Tackling crime
Protection of the environment
Protect public health and morals
The rights of others
From the UDHR to the Covenants (1945-1966)
Effect of the Cold War on the development of international human rights law
Europe: the European Convention on Human Right (ECHR, 1950)
Africa and Asian states: decolonization and self-determination.
The International Convention on the Elimination of All Forms of Racial Discrimination (CERD) (opened for signature, 1965)
International Covenant on Civil and Political Rights
(1966) and The
International Covenant on Economic, Social and Cultural Rights

Difference between civil and political rights on the one hand, and economic, social and cultural rights on the other hand. CP rights entail
duties on the state; ESC rights entail

ICCPR, Article 2(1):
Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.

ICESCR, Article 2(1):
Each State Party to the present Covenant undertakes to take steps, individually and through international assistance and co-operation, especially economic and technical, to the maximum of its available resources, with a view to achieving progressively the full realization of the rights recognized in the present Covenant by all appropriate means, including particularly the adoption of legislative measures.

From the Covenants to the end of the Cold War (1966-1991)
Economic and Social Council Resolution 1235 (1967)

CERD came into force which required states to file periodic reports detailing how they comply with the provisions of the treaty (1969)

Economic and Social Council Resolution 1503 (1970) authorized to investigate complaints of “a consistent pattern of gross and reliably attested violations of human rights and fundamental freedoms.”

Human Rights Committee (1976)

Committee on Economic, Social and Cultural Rights (1985)

1. Development of an international system for monitoring the protection of human rights
2. Creation of human rights non-governmental organisations (NGOs)
Amnesty International (1961) (http://www.amnesty.org/)

Helsinki Watch (1978) (eventually becoming Human Rights Watch in 1988) (http://www.hrw.org/)

Interights (1982) (http://www.interights.org/)

Article 19

3. Development of more treaties of international human rights law
Convention on the Elimination of Discrimination Against Women (1979, entered into force 1981)

Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (1984, entered into force 1987)

Convention on the Rights of the Child (1989, entered into force 1990)

4. Practical changes
Latin America – fall of dictatorships (1980s)

South Korea – election of democratic government (1988)

Philippines - overthrow of Ferdinand Marcos (1986)

China – Tiananmen Square massacre (1989)

International human rights law since 1991
Former Yugoslavia – genocide and war crimes (1991)
South Africa – abolition of Apartheid (1994)
Rwanda – genocide (1994)
United States ratifies ICCPR (1992), CAT (1994)
Creation of a UN High Commissioner for Human Rights (1993)
“War on Terror” (2001-present day)
“Arab Spring” (2011)

Aristotle, Plato, Cicero and ancient conceptions of justice

Religious foundations /
St Thomas Aquinas

Whereas recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world,

Whereas disregard and contempt for human rights have resulted in barbarous acts which have outraged the conscience of mankind, and the advent of a world in which human beings shall enjoy freedom of speech and belief and freedom from fear and want has been proclaimed as the highest aspiration of the common people,

Whereas it is essential, if man is not to be compelled to have recourse, as a last resort, to rebellion against tyranny and oppression, that human rights should be protected by the rule of law,

Whereas it is essential to promote the development of friendly relations between nations,

Whereas the peoples of the United Nations have in the Charter reaffirmed their faith in fundamental human rights, in the dignity and worth of the human person and in the equal rights of men and women and have determined to promote social progress and better standards of life in larger freedom,

Whereas Member States have pledged themselves to achieve, in co-operation with the United Nations, the promotion of universal respect for and observance of human rights and fundamental freedoms,

Whereas a common understanding of these rights and freedoms is of the greatest importance for the full realization of this pledge,

Absolute rights:

Article 7, ICCPR:

No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. In particular, no one shall be subjected without his free consent to medical or scientific experimentation.

Rights that can be interfered with in limited circumstances:

Article 6, ICCPR

1. Every human being has the inherent right to life. This right shall be protected by law. No one shall be
deprived of his life.

2. In countries which have not abolished the death penalty,
sentence of death may be imposed
only for the most serious crimes in accordance with the law in force at the time of the commission of the crime and not contrary to the provisions of the present Covenant and to the Convention on the Prevention and Punishment of the Crime of Genocide. This penalty can only be carried out pursuant to a final judgement rendered by a competent court.

3. When deprivation of life constitutes the crime of genocide, it is understood that nothing in this article shall authorize any State Party to the present Covenant to derogate in any way from any obligation assumed under the provisions of the Convention on the Prevention and Punishment of the Crime of Genocide.

4. Anyone sentenced to death shall have the right to seek pardon or commutation of the sentence. Amnesty, pardon or commutation of the sentence of death may be granted in all cases.

5. Sentence of death shall not be imposed for crimes committed by persons below eighteen years of age and shall not be carried out on pregnant women.

6. Nothing in this article shall be invoked to delay or to prevent the abolition of capital punishment by any State Party to the present Covenant.

Rights that have general qualifications:

ECHR Article 8 – Right to respect for private and family life

1. Everyone has the right to respect for his private and family life, his home and his correspondence.

2. There shall be no interference by a public authority with the exercise of this right
except such as is in accordance with the law
and is
necessary in a democratic society
in the
interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others

The Ontological Concern:

Jeremy Bentham:
Anarchical Fallacies: A Critical Examination of the Declaration of Rights
(in The Works of Jeremy Bentham: Vol. 2 (ed. John Bowring): rights are “the child of law; from real law come real rights; but from imaginary laws, from ‘law of nature,’ come imaginary rights…Natural rights is simple nonsense.”

Edmund Burke:
Reflections on the Revolution in France

Thomas Hobbes:
(1660): “a perpetual and restless desire of power after power.” In a state of nature, people’s lives will be “solitary, poor, nasty, brutish and short.”

The Marxist Critique:

Concerns with "individual" rights are egoistic, and we should concern ourselves instead with economic equality
Cultural relativism
The twin arguments of cultural relativists:

(1) Particular human rights are relevant to particular social, economic and cultural traditions. For example, an emphasis on the right to freedom of religion is not appropriate to Islamic states.

(2) International human rights law’s claim to universality is just another means of Western imperialism (neo-colonialism)

The alleged fallacy of cultural relativism:

(1) No simple distinction between “Western” and “non-Western” states (eg, death penalty in Europe v death penalty in the USA)

(2) Arguments based on cultural relativity are used as a smokescreen to justify human rights abuses (eg, Female Genital Mutilation / Circumcision
The Realist critique of international human rights law:

Machiavelli, The Prince (published circa 1515)
Hans Morgenthau, Politics Among Nations (first published 1948)

States are more interested in economic growth and power on the international stage, than they are with human rights and the protection of individuals.

The continuing threat, or perceived threat, of terrorism, and responses to this threat

Rise of new economies with different political ideologies: China, India, Brazil


Climate change
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