History and Categories of Human Rights
A Brief History of Human Rights
Some precursors of the idea of human rights are found in pre-modern societies. For example, the Magna Carta, an English charter of liberty issued in 1215, laid the foundations for the right known as habeus corpus or the right to appeal and seek relief from being detained unlawfully, which remains a central element of human rights today. In this module, however, "human rights" refers to the system of rights that emerged after the formation of the United Nations following World War II. The United Nations was founded in 1945, but it took another few years for the new member states to agree to a comprehensive body of rights and to pledge the United Nations' efforts to ensure that all people could enjoy these rights. This agreement took the form of the Universal Declaration of Human Rights (UDHR) of 1948.
The UDHR, in its own words, reaffirmed the faith of the people of the world "in fundamental human rights, in the dignity and worth of the human person, and in the equal rights of men and women." It established some ideas that are central to many human rights instruments, including the right to protection from discrimination, which is stated as follows:
Everyone is entitled to all the rights and freedoms set forth in this Declaration, 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 (Article 2).
The UDHR is one of the most widely translated documents in history, available in 375 languages as of 2010. It is, however, as its name suggests, a declaration rather than a formal treaty. Member states of the United Nations were interested in encoding the principles of the UDHR in binding international treaties. By the time they got around to doing so, the world was in the middle of the Cold War between the Western powers and the Soviet bloc. The Soviet states came to human rights negotiations in the UN emphasizing the importance of so-called economic rights - that is, the right to adequate food, shelter, education, health and other elements related to the quality of life. The Western countries, especially the U.S., argued that the most important rights were civil and political rights - that is the right to be protected from arbitrary state action such as unlawful detention, and fundamental freedoms such as freedom of the press, freedom of religion, and so on - and that the "quality of life"-type rights were "aspirational" and not real rights.
Categories of Human Rights
In 1966, the UN General Assembly produced two treaties that were meant to be the legally binding version of the UDHR; unsurprisingly, these were:
- the International Covenant on Civil and Political Rights (ICCPR), and
- the International Covenant on Economic, Social and Cultural Rights (ICESCR).
These two treaties are the bedrock of today's human rights system. Together with the UDHR, they are sometimes referred to as the International Bill of Rights. (It should be noted that although the UDHR was not framed as a binding legal document, it is so widely accepted and used that it has attained the status of customary law and is binding as such.)
The two legal Covenants reflect a distinction between two categories of human rights that was important at the time but that, over time, has faded somewhat. Nonetheless, it is important to understand some elements of this distinction. Table 1 below illustrates some ways of thinking about civil and political vs. economic, social and cultural rights.
|Civil and political rights||Economic, social and cultural rights|
|Negative rights: what the government should not do (e.g. the government must not torture, detain people arbitrarily, impede freedom of expression)*||Positive rights: what the government should do for people (e.g. ensure adequate health and education services, adequate shelter, etc.)|
|Rights of protection||Rights of provision|
|Ensuring people's liberties||Ensuring people's needs are met|
|"Hard" rights||"Soft" rights|
Another important distinction not noted in the table is that economic, social and cultural rights are meant to be progressively realized based on available resources. That is, the framers of the Covenants recognized that even well-meaning governments may not immediately have the resources to ensure that basic needs of all their people are met. Article 2 of the ICESCR says that any country that agrees to its terms will act, "individually and through international assistance and cooperation,...to the maximum of its available resources, with a view to achieving progressively the full realization of the rights recognized" in the Covenant. In contrast, effective remedies for violations of civil and political rights are meant to be immediately available.
While the distinctions between civil and political rights on the one hand and economic, social and cultural rights on the other may seem to be pronounced, many human rights experts have commented that most human rights have both "negative" and "positive" qualities. That is, for example, people may have the political right to vote (ICCPR, Article 25), and governments must not interfere with that right, but voting also requires the state to take the positive action of ensuring that there is an infrastructure for collecting, counting and reporting votes fairly and accurately.
Provisions of the two International Covenants are summarized in Annex 1.
Over time, member states of the UN have concluded that rights articulated in the two main Covenants needed to be elaborated on, or issues that became important human rights concerns since 1966 needed also to be embodied in human rights law. As of 2010, in addition to the ICCPR and ICESCR, there are seven "core" human rights treaties, which are as follows:
- International Convention on the Elimination of All Forms of Racial Discrimination, 1965
- Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), 1979
- Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 1984
- Convention on the Rights of the Child, 1989
- International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families, 1990
- International Convention for the Protection of All Persons from Enforced Disappearance, 2006
- Convention on the Rights of Persons with Disabilities, 2006