human rights(redirected from Law & human rights)
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Basic rights that fundamentally and inherently belong to each individual.
Human rights are freedoms established by custom or international agreement that impose standards of conduct on all nations. Human rights are distinct from civil liberties, which are freedoms established by the law of a particular state and applied by that state in its own jurisdiction.
Specific human rights include the right to personal liberty and Due Process of Law; to freedom of thought, expression, religion, organization, and movement; to freedom from discrimination on the basis of race, religion, age, language, and sex; to basic education; to employment; and to property. Human rights laws have been defined by international conventions, by treaties, and by organizations, particularly the United Nations. These laws prohibit practices such as torture, Slavery, summary execution without trial, and Arbitrary detention or exile.
Modern human rights law developed out of customs and theories that established the rights of the individual in relation to the state. These rights were expressed in legal terms in documents such as the English Bill of Rights of 1688, the U.S. Declaration of Independence of 1776, the U.S. Bill of Rights added to the U.S. Constitution in 1789, and the French Declaration of the Rights of Man and the Citizen added to the French Constitution in 1791.
Human rights law also grew out of earlier systems of International Law. These systems, developed largely during the eighteenth and nineteenth centuries, were predicated on the doctrine of national sovereignty, according to which each nation retains sole power over its internal affairs without interference from other nations. As a result, early international law involved only relations between nation-states and was not concerned with the ways in which states treated their own citizens.
During the late nineteenth and early twentieth centuries, the notion of national sovereignty came under increasing challenge, and reformers began to press for international humanitarian standards. In special conferences such as the Hague Conference of 1899 and 1907, nations created laws governing the conduct of wars and handling of prisoners.
Not until after World War II (1939–45) did the international community create international treaties establishing human rights standards. The United Nations, created in 1945, took the lead in this effort. In its charter, or founding document, the United Nations developed objectives for worldwide human rights standards. It called for equal rights and self-determination for all peoples, as well as "universal respect for, and observance of, human rights and fundamental freedoms for all without distinction as to race, sex, language, or religion" (art. 55). The universal declaration of human rights, adopted by the U.N. General Assembly in 1948, also became an important human rights document.To develop the U.N. Charter into an international code of human rights law, the international community created a number of multilateral human rights treaties. The two most significant of these are the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social, and Cultural Rights, both put into effect in 1976. These treaties forbid discrimination on the basis of race, color, sex, language, religion, political or other opinion, national or social origin, property, birth, or other status. The two covenants, along with the U.N. Charter, the Universal Declaration of Human Rights, and an accord called the Optional Protocol to the Covenant on Civil and Political Rights (1976), constitute a body of law that has been called the International Bill of Human Rights.
The Covenant on Civil and Political Rights includes protections for the right to life, except after conviction for serious crime (art. 6); freedom from torture and other cruel and inhumane punishment (art. 7); freedom from slavery and prohibition from slave trade (art. 8); freedom from arbitrary arrest or detention (art. 9); humane treatment of prisoners (art. 10); freedom of movement and choice of residence (art. 12); legal standards, including equality before the law, fair hearings before an impartial tribunal, Presumption of Innocence, a prompt and fair trial, the Right to Counsel, and the right to review by a higher court; freedom of thought, conscience, and religion (art. 18); and freedom of association, including association in trade unions (art. 22).
The Covenant on Economic, Social, and Cultural Rights protects additional rights, many of which have yet to be realized in poorer countries. These include the right to work (art. 6); to just wages and safe working conditions (art. 7); to social security and social insurance (art. 9); to a decent standard of living and freedom from hunger (art. 11); to universal basic education (art. 13); and to an enjoyment of the cultural life and scientific progress of the country.
The international community has also adopted many other human rights treaties. These include the Convention on the Prevention and Punishment of the Crime of Genocide (1948); the Convention on the Political Rights of Women (1953); the Convention to Suppress the Slave Trade and Slavery (revised 1953); the Convention against Torture and Other Cruel, Inhuman, or Degrading Treatment (1987); the Convention on the Rights of the Child (1990); and the Convention on Protection of the Rights of Migrant Workers (2003).
In addition to worldwide human rights agreements, countries have also established regional conventions. These include the European Convention for the Protection of Human Rights and Fundamental Freedoms, the American Convention on Human Rights, and the African Charter on Human and Peoples' Rights.
The United States and Human Rights
Although the United States was an active participant in the formation and implementation of international human rights organizations and treaties following World War II, and although it ratified selected treaties such as the Convention to Suppress the Slave Trade and Slavery in 1967 and the Convention on the Political Rights of Women in 1976, it did not ratify any of the major rights treaties until 1988, when it approved the Convention on the Prevention and Punishment of the Crime of Genocide. Four years later it ratified the International Covenant on Civil and Political Rights.
The U.S. Senate, which has authority to ratify all treaties, has been slow to review and approve human rights provisions, for a number of reasons. Senators have expressed concern about the effect of international treaties on U.S. domestic law. Article VI of the U.S. Constitution provides, "This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land." Treaties therefore stand as federal law, though they are not considered to be law if they conflict with the Constitution (Reid v. Covert, 354 U.S. 1, 77 S. Ct. 1222, 1 L. Ed. 2d 1148 ).
Conservative senators blocked early ratification of human rights treaties largely out of concern that the treaties would invalidate racial Segregation laws that existed in the United States until the 1960s. Many human rights advocates claimed that these laws violated existing international treaties. Some senators argued that human rights should fall under domestic authority only and should not be subject to international negotiations. Others contended that ratification of human rights treaties would federalize areas of law better left to the states.
Since the late 1960s, such objections in the Senate have been overcome by attaching to treaties modifying terms called reservations, understandings, and declarations (RUDs). RUDs modify the treaties so that their effect on U.S. law will be acceptable to the two-thirds majority required for treaty ratification in the Senate. A reservation, for example, may state that the United States will not accept any element of a treaty found to be in conflict with the U.S. Constitution or existing laws, or that ratification will not federalize areas of law currently controlled by the states.
The U.S. Congress has also enacted its own human rights legislation. Under the leadership of Representative Donald M. Fraser (D-Minn.) during the 1970s, the House Committee on Foreign Affairs added language to the Foreign Assistance Act of 1973 (22 U.S.C.A. § 2151 et seq.) that required the president to cancel military and economic assistance to any government that "engages in a consistent pattern of gross violations of internationally recognized human rights," including torture and arbitrary detention without charges (§§ 2151n, 2304). This new legislation authorized the State Department to collect and analyze data on human rights violations. Congress has also passed laws that require cutting off or limiting aid to countries with significant human rights violations.
In 1977, Congress gave human rights greater priority within the Executive Branch by creating a new State Department office, the Bureau on Human Rights and Humanitarian Affairs, headed by an assistant secretary of state (Pub. L. No. 95-105, 91 Stat. 846). In 1994, the administration of President bill clinton renamed the office the Bureau for Democracy, Human Rights, and Labor. The bureau is charged with administering programs and policies to promote democratic institutions and respect for human rights and workers' rights around the world. It also presents to Congress an Annual Report on the status of human rights all over the globe.
Amnesty International, the Center for Constitutional Rights, Human Rights Watch, the International Commission of Jurists, and other international human rights organizations closely monitor states' compliance with human rights standards. These groups also publicize rights violations and coordinate world public opinion against offending states. In many cases they induce governments to modify their policies to meet rights standards.
Domestic human rights organizations such as the Vicaria de Solidaridad, in Chile, and the Free Legal Assistance Group of the Philippines also play a significant role as human rights watchdogs, often at great personal risk to their members.
Amnesty International Website. Available online at <www.amnesty.org> (accessed September 25, 2003).
Bureau of Democracy, Human Rights, and Labor Website. Available online at <www.state.gov/g/drl> (accessed September 25, 2003).
Curry, Lynne. 2002. The Human Body on Trial: A Handbook with Cases, Laws, and Documents. Santa Barbara, Calif.: ABC-CLIO.
Golove, David. 2002. "Human Rights Treaties and the U.S. Constitution." DePaul Law Review 52 (winter): 579–625.
Kennedy, David. 2002. "The International Human Rights Movement: Part of the Problem?" Harvard Human Rights Journal 15 (spring): 101–25.
human rightscertain rights which are thought to be enjoyed by everyone, usually against - at least - their government. A modern concept, at least under this name, human rights are legally significant in the UK and Europe because of the incorporation into UK law by the Scotland Act 1998 and the Human Rights Act 1998 (effective October 2000) of the EUROPEAN CONVENTION ON HUMAN RIGHTS, ratified by the members of the COUNCIL OF EUROPE. Equally important is the Universal Declaration of Human Rights, adopted by the United Nations General Assembly in 1948. The convention includes the right to life; freedom from torture or inhuman treatment; freedom from slavery and forced labour; the right to liberty and freedom from detention save in accord with the law; the right to fair administration of justice; respect for privacy and the family; the right to peaceful assembly; the right not to be discriminated against. Over the years protocols have added new rights: the protection of property; a parent's right to choose education; a right to free elections; liberty from prison for inability to meet a contract; free movement; the right not to be expelled from one's natural home. Many of the rights are subject to provisos on the basis of public order, public security and the need to guard the freedom of others.
The effect in the UK (even before formal incorporation) has been to bring about legal change in very many areas indeed and often by changing existing legal regimes. Hence the right to life has been found to extend to the safe custody of convicts in their cells; the right not to be subject to torture or to inhuman or degrading treatment or punishment brought about an end to the practice of slopping out in Scottish prisons; the right to liberty and security has affected rules and practice on arrest; the right to a fair hearing has always been part of the UK legal systems and some adjustment only has been required to comply but it has brought about the opportunity to challenge most aspects of legal process, including a finding that the non-availability of legal aid was a breach; the right not to suffer punishment unless specified by law has not been a major concern in the UK where the rule of law has long applied but again it is an opportunity for re-appraisal of well-known ideas, such as the declaratory power of the High Court of Justiciary; the right to respect for private and family life has been the subject of many changes to UK law, including the removal of laws against homosexuals, and the development of the law of confidence to protect people against certain publication of private information; freedom of thought, conscience and religion are self-explanatory and have not been too challenging for the UK's essentially liberal secular society; freedom of expression has long been a feature of UK political and legal regimes but the Act has had an effect on issues of prior restraint of allegedly defamatory material and in the development of legal defences for responsible journalists to claims of defamation; the right to freedom of assembly and association has largely been taken for granted but broader and deeper issues than simply marches and demonstrations have arisen as where the UK was held non-compliant for not preventing employers paying workers to give up their right to join a trade union; the right to marry has been extended to transsexuals. The Act allows citizens to sue for damages against those who have infringed their rights in local courts and they may be awarded financial losses as well as a sum for ‘just satisfaction’ if the finding itself is not adequate for this purpose. See also BILL OF RIGHTS.