Introduction to Human Rights Week 1: Foundations of Human Rights II. Notion and characteristics What does the term "Human Rights" mean to you? Human Rights, the right to be free, to be protected by the law, to have the opportunity to eat, to have a roof over one's head, and to be free to express what we think. Yeah, respect of course. Tolerance and accepting different cultures. That's the essence of Human Rights, I think. To have a common basis on which we can agree and say "okay, that is how we should respect human beings, regardless of their religious affiliation, their ethnicity." It is that all the people on earth are happy, pleased and treated fairly. They are the rights that every single person has and must have, regardless of the condition in which they are born. To me, it has such a significant meaning that I don't have the words to express what it is. Roughly, to me it means freedom of speech; the freedom to be someone; to be respected; to exist; to live as a human, not as an animal. It is to be allowed to do the things we are able to do. What do Human Rights mean to me... Nothing more or less than freedom. Respect for every individual, for every nationality, for every color, for every religion. It is a set of basic rights, which claim to be universal across various cultures and various legislations. They should be at the grass roots level of all the other laws. We all have an intuition about what Human Rights are. Let us try together to make this notion clearer by highlighting its features with the help of the following definition: - Human Rights are entitlements - guaranteed by international law - aimed at protecting the most fundamental interests of the human person - and subsidiary to the national guarantees. Let us consider these elements again. So, Human Rights are entitlements. Entitlements are prerogatives allowing the rights holder to demand something from the addressee of the right. Therefore, Rights always imply a relation between two parties. On the one hand, the rights holder, the beneficiary of the right. And, on the other hand, the addressee, the person who has to respect the right. Who can be entitled to Human Rights? First and foremost, it is the individual, the human person, and, in most cases, regardless of the nationality. Thus, Human Rights also protect stateless people and foreigners. Now, what about legal entities, such as commercial companies? Can corporations invoke Human Rights? The answer varies from one system to the other. For instance, The European Court of Human Rights admits that legal entities such as a press company can invoke freedom of speech to object to an injunction not to publish. But other rights, such as the right to life or the prohibition of torture, are inextricably linked to the human person and cannot be invoked by corporations. Another question arises with respect to the right holders: Can collective entities, the people, invoke Human Rights? This is a controversial issue. The contemporary tendency is to answer "yes". We are going to look into this question in more detail during the fourth week of this course. Let us now turn to the other party of the Rights: the addressee. Who is the addressee of Human Rights? Human Rights mainly bind the State. When we say "addressee of Human Rights", it also means that this entity has to respect Human Rights. The addressee has a legal relationship with the rights holder. Human Rights are always double-sided: right and corresponding duties. These are two sides of the same coin. As I have already told you, Human Rights are mainly directed against the State. By "State" we mean all the apparatus of the State. All the entities, which de facto or de jure, act in the name of the State. The Civil Service, courts, legislators, and, in direct democracies, the people. Indirectly, Human Rights can also have an effect on private persons. We will discuss more about that in this course. What is important is that, at the international level, the petition is always directed against the State. Never against an individual, against a private person. It is especially for historical reasons that the State is the addressee of Human Rights. The State is a sovereign entity; it has a monopoly on the use of force. The state poses a danger to the freedom of private persons. The state can arrest and try them. It can confiscate their properties. Hence the idea of protecting the individual against the ascendancy of the State. In today's context, threats can also stem from other actors. Take for example damages to health and environment, which are caused by gas companies. Or take the sanctions ordered by the United Nations Security Council against the people appearing on blacklists in the context of the fight against terrorism. Today, tendencies to increase the group of addressees, and to extend the scope of Human Rights towards multinational companies, towards international organizations can be observed. My colleague Michel Hottelier will tell you more about that in the fifth week of this course. This far we have seen that Human Rights have a person entitled to them, who is the individual, and an addressee, which is mainly the State. Another crucial point has to be mentioned to understand why Human Rights are Rights. There are indeed two reasons why Human Rights are Rights: they are moral rights and they are also so-called legal rights. These two characteristics together are the strengths of Human Rights. These two characteristics are expressed by the Universal Declaration of Human Rights. On the one hand, this Declaration says that Human Rights are inalienable rights of all members of the human family. Human Rights, as inalienable rights which pertain to every human being just because they are human beings, express the vision of Human Rights as moral rights. Human Rights are universal because they belong to everyone. They are also inalienable in the sense that they cannot be taken away from us. Therefore, these rights precede the legal order. They are distinct from existing law. They also transcend the legal order and they remain a reference point to gauge the existing law in a critical way. Talking about moral rights allows Human Rights to be established both in morality and in the ethics. However, the Universal Declaration also expresses Human Rights' characteristic as legal rights. Indeed, the Universal Declaration tells us that "it is essential that Human Rights should be protected by the rule of law." To be fully effective, it is not enough for Human Rights to be moral rights. They need to be protected by the legal order. A great deal of effort was therefore required to integrate Human Rights in the legal order. Human Rights have been protected by international law for about 60 years. The protection of Human Rights by international law is the second element of the aforementioned definition. Indeed, guarantees similar to Human Rights can be found on the national level, in national Constitutions which contain a list of rights. It is more common to use another terminology for these guarantees. We are not referring to Human Rights but rather to fundamental rights, to constitutional rights, to civil liberties or to civil rights. International law is not only restricted to protecting or to expressing these guarantees. This law also provides for implementation machinery. There have to be sanctions when rights are violated. The importance of implementation machinery also ensues from the General Assembly of the United Nations' 41/120 resolution on the establishment of international standards in the field of Human Rights. You have read this resolution for today. The resolution requires that Human Rights "provide [...] realistic and effective implementation machinery [...]." There is also a qualitative requirement in order for a right to deserve to be called "Human Rights". Human Rights aim at protecting the most fundamental interests of the human person. This requirement can also be found in the 41/120 resolution. Indeed, the resolution says that Human Rights have to "be of fundamental character and derive from the inherent dignity and worth of the human person." Behind Human Rights, there is therefore not the idea of guaranteeing a general freedom of action but rather the idea of guaranteeing an island of freedom. The aim is to guarantee what is fundamental for the existence, for the integrity and for the fulfillment of the person. Human Rights focus also on the domain in which there is a strong likelhood of violation. Let us for example consider the censorship of the press, which has been a permanent trait of humanity for many centuries. But what about, for example, commercial advertising? Is it a Human Right? What about, for example, the right to smoke cigarettes? What about the right to ride a horse in the forest? What about the right to bear weapons? It is not always easy to draw a line between what is fundamental and what is not. It is however essential to do so. Human Rights should not become trivial. They should not be diluted by their multiplication. This is why Philip Alston, a Human Rights' expert, has required a quality control. Human Rights are like good wine. They are great wines, not table wine. It is important to understand that not all Rights, which are protected by national law, are Human Rights. Let us take for example the right to inherit. The right to inherit often provides for children to inherit from their parents. But this is not a Human Right. There is no similar guarantee on the international level. Even the rights that are guaranteed in national Constitutions are not all Human Rights. For example, the German Constitution protects a general guarantee of the freedom of action. This guarantee has been interpreted as protecting the right to ride a horse in the forest or the right to feed the pigeons. Again, there is no equivalent international guarantee. The same is true of the US Constitution's second amendment, which provides the right to carry a weapon. Such a guarantee does not exist in international law. This is also because a consensus among States is needed in order to decide what is fundamental and what is not. Indeed, the 41/120 agreement says that Human Rights have to be based on broad international support. National law can therefore go beyond international Human Rights guarantees. In other words, Human Rights are subsidiary with respect to the national guarantees This is the fourth characteristic that I stressed. It is important to keep in mind that national Constitutions can be more generous in terms of rights than Human Rights themselves. Human Rights are really the last safety net. It is the minimum standard.
