Rights and ObligationsRights and Obligations

Dialogue Education2009

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ContentsContents Pages 3 to 7 - Human Rights Pages 8 to 10 - Natural Law Pages 11-12 - Social Contract Page 13 - Reciprocity Pages 14 to 15 - Other theories of Human Rights Pages 16 to 20 - Currently Debated Rights Page 16 - Environmental Rights Pages 17 - Future Generations Page 18 - Gay and Lesbian Rights Page 19 - Trade Page 20 - Water Page 21- Community of Inquiry Topic- Is there a right to be

rescued Page 22 - Video Presentation– focussing on the Rights of the Child Pages 23 to 24 - Bibliography

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Rights and ObligationsRights and Obligations

Human rights refers to the "basic rights and freedoms to which all humans are entitled." Examples of rights and freedoms which are often thought of as human rights include civil and political rights, such as the right to life and liberty, freedom of expression, and equality before the law; and social, cultural and economic rights, including the right to participate in culture, the right to food, the right to work, and the right to education.

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Rights and ObligationsRights and Obligations The history of human rights covers

thousands of years and draws upon religious, cultural, philosophical and legal developments throughout recorded history. Several ancient documents and later religions and philosophies included a variety of concepts that may be considered to be human rights. Notable among such documents are the Cyrus cylinder of 539 BC, a declaration of intentions by the Persian emperor Cyrus the Great after his conquest of the Neo-Babylonian Empire; the Edicts of Ashoka issued by Ashoka the Great of India between 272-231 BC; and the Constitution of Medina of 622 AD, drafted by Muhammad to mark a formal agreement between all of the significant tribes and families of Yathrib (later known as Medina), including Muslims, Jews and Pagans. The English Magna Carta of 1215 is particularly significant in the history of English law, and is hence significant in international law and constitutional law today.

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Rights and ObligationsRights and Obligations Much of modern human rights law and the

basis of most modern interpretations of human rights can be traced back to relatively recent history. The British Bill of Rights (or “An Act Declaring the Rights and Liberties of the Subject and Settling the Succession of the Crown”) of 1689 made illegal a range of oppressive governmental actions in the United Kingdom. Two major revolutions occurred during the 18th century, in the United States (1776) and in France (1789), leading to the adoption of the United States Declaration of Independence and the French Declaration of the Rights of Man and of the Citizen respectively, both of which established certain legal rights. Additionally, the Virginia Declaration of Rights of 1776 encoded a number of fundamental rights and freedoms into law.

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Rights and ObligationsRights and ObligationsThese were followed by developments in

philosophy of human rights by philosophers such as Thomas Paine, John Stuart Mill and G. W. F. Hegel during the 18th and 19th centuries. The term human rights probably came into use sometime between Paine's The Rights of Man and William Lloyd Garrison's 1831 writings in The Liberator saying he was trying to enlist his readers in "the great cause of human rights"

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Rights and ObligationsRights and Obligations

Several theoretical approaches have been advanced to explain how and why human rights become part of social expectations.

One of the oldest Western philosophies on human rights is that they are a product of a natural law, stemming from different philosophical or religious grounds.

Other theories hold that human rights codify moral behaviour which is a human social product developed by a process of biological and social evolution (associated with Hume). Human rights are also described as a sociological pattern of rule setting (as in the sociological theory of law and the work of Weber). These approaches include the notion that individuals in a society accept rules from legitimate authority in exchange for security and economic advantage (as in Rawls) - a social contract. 7

Natural rightsNatural rights

Natural law theories base human rights on a “natural” moral, religious or even biological order that is independent of transitory human laws or

traditions. Socrates and his philosophic heirs, Plato and Aristotle,

posited the existence of natural justice or natural right (dikaion physikon, δικαιον φυσικον, Latin ius naturale). Of these, Aristotle is often said to be the father of natural law, although evidence for this is due largely to the interpretations of his work by Thomas Aquinas.

The development of this tradition of natural justice into one of natural law is usually attributed to the Stoics.

Some of the early Church Fathers sought to incorporate the until then pagan concept of natural law into Christianity. Natural law theories have featured greatly in the philosophies of Thomas Aquinas, Francisco Suárez, Richard Hooker, Thomas Hobbes, Hugo Grotius, Samuel von Pufendorf, and John Locke.

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Natural rights cont.Natural rights cont.

In the Seventeenth century Thomas Hobbes founded a contractualist theory of legal positivism on what all men could agree upon: what they sought (happiness) was subject to contention, but a broad consensus could form around what they feared (violent death at the hands of another). The natural law was how a rational human being, seeking to survive and prosper, would act. It was discovered by considering humankind's natural rights, whereas previously it could be said that natural rights were discovered by considering the natural law. In Hobbes' opinion, the only way natural law could prevail was for men to submit to the commands of the sovereign. In this lay the foundations of the theory of a social contract between the governed and the governor.

Hugo Grotius based his philosophy of international law on natural law. He wrote that "even the will of an omnipotent being cannot change or abrogate" natural law, which "would maintain its objective validity even if we should assume the impossible, that there is no God or that he does not care for human affairs." (De iure belli ac pacis, Prolegomeni XI). This is the famous argument etiamsi daremus (non esse Deum), that made natural law no longer dependent on theology. 9

Natural rights cont.Natural rights cont.

John Locke incorporated natural law into many of his theories and philosophy, especially in Two Treatises of Government. Locke turned Hobbes' prescription around, saying that if the ruler went against natural law and failed to protect "life, liberty, and property," people could justifiably overthrow the existing state and create a new one.

The Belgian philosopher of law Frank Van Dun is one among those who are elaborating a secular conception of natural law in the liberal tradition. There are also emerging and secular forms of natural law theory that define human rights as derivative of the notion of universal human dignity.

The term "human rights" has replaced the term "natural rights" in popularity, because the rights are less and less frequently seen as requiring natural law for their existence. 10

Social contractSocial contract

The Swiss-French philosopher Jean-Jacques Rousseau suggested the existence of a hypothetical social contract where a group of free individuals agree for the sake of the common good to form institutions to govern themselves. This echoed the earlier postulation by Thomas Hobbes that there is a contract between the government and the governed - and led to John Locke's theory that a failure of the government to secure rights is a failure which justifies the removal of the government.

International equity expert Paul Finn has echoed this view:

“ the most fundamental fiduciary relationship in our society is manifestly that which exists between the community (the people) and the state, its agencies and officials. ”

—Paul Finn11

Social contract cont.Social contract cont.

The relationship between government and the governed in countries which follow the English law tradition is a fiduciary one. In equity law, a politician's fiduciary obligations are not only the duties of good faith and loyalty, but also include duties of skill and competence in managing a country and its people. Originating from within the Courts of Equity, the fiduciary concept exists to prevent those holding positions of power from abusing their authority. The fiduciary relationship between government and the governed arises from the governments ability to control people with the exercise of its power. In effect, if a government has the power to abolish any rights, it is equally burdened with the fiduciary duty to protect such an interest because it would benefit from the exercise of its own discretion to extinguish rights which it alone had the power to dispose of.

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ReciprocityReciprocity

The Golden Rule, or the ethic of reciprocity states that one must do unto others as one would be treated themselves; the principle being that reciprocal recognition and respect of rights ensures that one's own rights will be protected. This principle can be found in all the world's major religions in only slightly differing forms, and was enshrined in the "Declaration Toward a Global Ethic" by the Parliament of the World's Religions in 1993. 13

Other theories of human Other theories of human rightsrights

The philosopher John Finnis argues that human rights are justifiable on the grounds of their instrumental value in creating the necessary conditions for human well-being. Interest theories highlight the duty to respect the rights of other individuals on grounds of self-interest:

“ Human rights law, applied to a State's own citizens serves the interest of states, by, for example, minimizing the risk of violent resistance and protest and by keeping the level of dissatisfaction with the government manageable ” —Niraj Nathwani in Rethinking refugee law.

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Other theories of human Other theories of human rights cont. rights cont.

The biological theory considers the comparative reproductive advantage of human social behavior based on empathy and altruism in the context of natural selection.

Human security is an emerging school of thought which challenges the traditional, state-based conception of security and argues that a people-focused approach to security is more appropriate in the modern interdependent world and would be more effective in advancing the security of individuals and societies across the globe.

Philosopher Fredreich Nietzsche has argued to the effect that those who speak most vehemently about their rights, doubt at the bottom of their soul if they truly have any.

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Currently-debated rightsCurrently-debated rights Advances of technology, medicine, and philosophy

constantly challenge the status quo of human rights thinking.

Environmental rights The onset of various environmental issues, especially

climate change, has created potential conflicts between different human rights. Human rights ultimately require a working ecosystem and healthy environment, but the granting of certain rights to individuals may damage these. Such as the conflict between right to decide number of offspring and the common need for a healthy environment, as noted in the tragedy of the commons. In the area of environmental rights, the responsibilities of multinational corporations, so far relatively unaddressed by human rights legislation, is of paramount consideration.

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Currently-debated Currently-debated rightsrightsFuture generations

In 1997 UNESCO adopted the Declaration on the Responsibilities of the Present Generation Towards the Future Generation. The Declaration opens with the words:

“ Mindful of the will of the peoples, set out solemnly in the Charter of the United Nations, to 'save succeeding generations from the scourge of war' and to safeguard the values and principles enshrined in the Universal Declaration of Human Rights, and all other relevant instruments of international law. ” —Declaration on the Responsibilities of the Present Generation Towards the Future Generation

Article 1 of the declaration states "the present generations have the responsibility of ensuring that the needs and interests of present and future generations are fully safeguarded." The preamble to the declaration states that "at this point in history, the very existence of humankind and its environment are threatened" and the declaration covers a variety of issues including protection of the environment, the human genome, biodiversity cultural heritage, peace, development, and education. The preamble recalls that the responsibilities of the present generations towards future generations has been referred to in various international instruments, including the Convention for the Protection of the World Cultural and Natural Heritage (UNESCO 1972), the United Nations Framework Convention on Climate Change and the Convention on Biological Diversity (Rio de Janeiro, 1992), the Rio Declaration on Environment and Development (UN Conference on Environment and Development, 1992), the Vienna Declaration and Programme of Action (World Conference on Human Rights, 1993) and a number of UN General Assembly resolutions relating to the protection of the global climate for present and future generations adopted since 1990.

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Currently-debated Currently-debated rightsrightsLesbian, Gay, Bisexual, Transgender (LGBT)

rights Current LGBT rights issues, such as same-sex

marriage, gay adoption rights, and protection from discrimination are considered by some to be human rights. Current campaigns, such as the Human Rights Campaign, specifically focus on the rights of the LGBT community.

Part of this debate includes a proposed UN declaration on LGBT rights which would for the first time condemn “discrimination based on sexual orientation and gender identity”. While receiving widespread global support, including signatures from the member states of the European Union, opposition has come from several UN member nations, most notably the Vatican, where the Vatican’s permanent observer at the UN, indicated his belief that the declaration would discriminate against states which support "traditional" marriage.

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Currently-debated Currently-debated rightsrights Trade

Although both the Universal Declaration of Human Rights and the International Covenant on Economic, Social and Cultural Rights emphasize the importance of a right to work, neither of these documents explicitly mention trade as a mechanism for ensuring this fundamental right. And yet trade plays a key role in providing jobs.

Some experts argue that trade is inherent to human nature and that when governments inhibit international trade they directly inhibit the right to work and the other indirect benefits, like the right to education, that increased work and investment help accrue. Others have argued that the ability to trade doesn't affect everyone equally -- often groups like the rural poor, indigenous groups and women are less likely to access the benefits of increased trade.

On the other hand, others think that it is no longer primarily individuals but companies that trade, and therefore it cannot be guaranteed as a human right.

Additionally, trying to fit too many concepts under the umbrella of what qualifies as a human right has the potential to dilute their importance. Finally, it is difficult to define a right to trade as either ‘fair’ or ‘just’ in that all trade regimes create ‘winners’ and ‘losers’, and changing the rules only creates different losers, not necessarily fewer. 19

Currently-debated Currently-debated rightsrightsWater See also: Water politics and Right to water There is no

current universal human right to water, binding or not, enshrined by the United Nations or any other multilateral body. In November 2002, the United Nations Committee on Economic, Social and Cultural Rights issued a non-binding comment affirming that access to water was a human right:

“ the human right to water is indispensable for leading a life in human dignity. It is a prerequisite for the realization of other human rights. ” —United Nations Committee on Economic, Social and Cultural Rights

This principle was reaffirmed at the 3rd and 4th World Water Councils in 2003 and 2006. This marks a departure from the conclusions of the 2nd World Water Forum in The Hague in 2000, which stated that water was a commodity to be bought and sold, not a right. There are calls from many NGOs and politicians to enshrine access to water as a binding human right, and not as a commodity.

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Community of inquiry on “Is Community of inquiry on “Is there a right to be rescued?”there a right to be rescued?”

CLICK ON THIS LINK FOR THE STIMULUS FOR A DISCUSSION ON IS THERE A RIGHT TO BE RESCUED? (You might like to print this material out and distribute it to the class.)

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You Tube Video focusing on You Tube Video focusing on medical experiments on medical experiments on children for a Community of children for a Community of InquiryInquiry CLICK ON

THIS LINK FOR THE STIMULUS MATERIAL FOR A DISCUSSION ON THE RIGHTS OF A CHILD.

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Wikipedia-Human Rights- http://en.wikipedia.org/wiki/Human_rights24