Human rights

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Laws of Burgos signed by Ferdinand the Catholic

For the 1948 declaration of the UN, see Universal Declaration of Human Rights.

Human rights are those "instrumental conditions that allow the person to achieve self-fulfillment". Accordingly, the concept subsumes those freedoms, faculties, institutions or claims relating to primary or basic goods that include every person, by the simple fact of their human condition, to guarantee a dignified life, "without distinction of any kind, such as race, color, sex, language, religion, political or other opinion, national or social origin, property, birth or other status".

For natural-law authors, human rights are independent of, or do not depend exclusively on, the legal system in force, and they are therefore considered a source of law; however, from the standpoint of legal positivism, the reality is that only the countries that subscribe to the International Covenants on Human Rights, that is, the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR) and their Protocols (the International Bill of Human Rights), are legally bound to comply with them. Thus, for example, with regard to the death penalty, which is contrary to the Universal Declaration of Human Rights, the Second Optional Protocol to the International Covenant on Civil and Political Rights, aimed at abolishing the death penalty, has not been signed by countries such as China, Iran, the United States, Vietnam, Japan and India.

From a more relational point of view, human rights have been defined as the conditions that make it possible to create an integrated relationship between the person and society, allowing individuals to be legal persons, identifying with themselves and with others.

Theoretical framework

They are defined as faculties inherent to the person that are irrevocable, inalienable, non-transferable and unwaivable. By definition, the concept of human rights is universal (for all human beings) and egalitarian, and incompatible with systems based on the superiority of a particular caste, ethnic group, people, group or social class. According to the traditional natural-law conception, they are also timeless and independent of social and historical contexts.

The theoretical doctrine of such rights has made a considerable effort to classify and systematize human rights. They are normally divided into two categories: positive rights and negative rights. Negative rights, such as the right to privacy or not to be tortured, are defined exclusively in terms of other people's obligations of non-interference; positive rights, by contrast, require other agents, traditionally (though no longer exclusively) the State, to carry out certain positive activities. Another very widespread classification orders human rights into three or more generations, generally according to the historical moment in which they were or are being claimed.

According to part of the doctrine, human rights cannot be ranked, since they are indivisible and interdependent. For another part of the doctrine (Bidart, Rosatti, Ekmekdjian, Riofrío), it is possible to establish logical, chronological, axiological and normative criteria, among others, to set up some kind of hierarchy, abstract or concrete, among rights. The most widely accepted thesis is that the specific weight of a right, and the determination of which right should prevail in a balancing of rights, must be decided in the concrete case.

Historical

Human rights, heirs to the notion of natural rights, are an idea of great moral force and with growing support. Legally, they are recognized in the domestic law of numerous States and in international treaties. For many, moreover, the doctrine of human rights extends beyond law and forms an ethical and moral basis that should underpin the regulation of the contemporary geopolitical order. The Universal Declaration of Human Rights has become a key reference in today's ethical and political debate, and the language of rights has been incorporated into the collective conscience of many societies. However, there is an ongoing debate in philosophy and political science about the nature, foundation, content and even the existence of human rights; and also clear problems regarding their effectiveness, since there is a great disproportion between what is violated and what is guaranteed by States.

According to De Souza Santos, the hegemony of human rights as the language of human dignity is undeniable today. However, this hegemony must coexist with an alarming reality. The great majority of the world's population is not the subject of human rights but the object of human rights discourses.

Cultural origin

There is an important debate about the cultural origin of human rights. They are generally considered to be rooted in modern Western culture, but there are at least two other main positions. Some claim that all cultures have visions of dignity that are expressed in the form of human rights, and they refer to proclamations such as the Manden Charter of 1222, the founding declaration of the Mali Empire. Nevertheless, neither in Japanese nor in classical Sanskrit, for example, did the term right exist until contacts with Western culture took place, since these cultures have traditionally placed the emphasis on duties. There are also those who consider that the West did not create the idea or the concept of human rights, although it did create a concrete way of systematizing them, a progressive discussion and the project of a philosophy of human rights.

According to the Declaration adopted by consensus of the 171 States meeting in Vienna at the World Conference on Human Rights in 1993: "all human rights are universal, indivisible and interdependent and interrelated". "Thus, universality, indivisibility and interdependence are the conceptual pillars on which the international recognition and protection of human rights seeks to rest."

Universality is "inherent to the fundamental rights of man because these are expressions of the dignity of every individual" and therefore they should be accepted, respected and guaranteed by States regardless of the political-ideological, economic and socio-cultural system they express. This becomes a somewhat ambiguous and complicated question because of the different regional and local worldviews.

Theories that defend the universality of human rights are usually set against cultural relativism, which affirms the validity of all cultural systems and the impossibility of any absolute assessment from an external framework, which in this case would be universal human rights. Between these two extreme positions lies a range of intermediate positions. Many human rights declarations issued by regional international organizations place greater or lesser emphasis on the cultural aspect and give more importance to certain rights according to their historical trajectory. In 1981 the Organisation of African Unity proclaimed the African Charter on Human and Peoples' Rights, which took up principles of the 1948 Universal Declaration and added others that had traditionally been denied in Africa, such as the right to self-determination or the duty of States to eliminate all forms of foreign economic exploitation. Later, the African States that agreed to the Tunis Declaration on November 6, 1993 affirmed that no particular model can be prescribed at the universal level, since the historical and cultural realities of each nation and the traditions, norms and values of each people cannot be disregarded. The Bangkok Declaration, issued by Asian countries on April 22, 1993, and the Cairo Declaration, signed by the Organization of the Islamic Conference on August 5, 1990, take a similar line.

Historical evolution

Many philosophers and historians of law consider that human rights cannot be spoken of until modernity in the West. Until then, the norms of the community, conceived in relation to the cosmic order, left no room for the human being as a singular subject, and law was conceived primarily as the objective order of society. The society of estates had its center in groups such as the family, the lineage or professional or labor corporations, which implies that no faculties belonging to the human being as such were conceived, no faculties to demand or claim something. On the contrary, all power attributed to the individual derived from a double status: that of the subject within the family and that of the family within society. Outside one's status there were no rights.

The existence of subjective rights, as they are thought of today, was a subject of debate during the 16th, 17th and 18th centuries. It is usually said that human rights are the product of the progressive affirmation of individuality and, accordingly, that the idea of the rights of man first appeared during the bourgeois struggle against the system of the Ancien Régime. While this is the most widespread view, other authors consider that human rights are a constant in History and have their roots in the classical world.

Remote antecedents

The Cyrus Cylinder has been called the first declaration of human rights.

One of the oldest documents that has been linked to human rights is the Cyrus Cylinder, which contains a declaration by the Persian King Cyrus the Great after his conquest of Babylon in 539 BC. It was discovered in 1879 and the UN translated it in 1971 into all its official languages. It can be placed within a Mesopotamian tradition centered on the figure of the just King, whose first known example is King Urukagina of Lagash, who reigned in the 24th century BC, and in which Hammurabi of Babylon and his famous Code, dating from the 18th century BC, also stand out. Nevertheless, the Cyrus Cylinder presents novel features, especially regarding religion. It has been valued positively for its humanist sense and has even been described as the first declaration of human rights. Numerous historians, however, consider the term alien to that historical context.

The Magna Carta, Magna Carta Libertatum of 1215

Medieval and early modern documents, such as the English Magna Carta of 1215 and the Mandinka Manden Charter of 1222, have also been associated with human rights. Against this idea, José Ramón Narváez Hernández states that the Magna Carta cannot be considered a declaration of human rights, since in this period rights existed but only among equals, and not with a universal character: the formal equality of all human beings is not asserted. The same was true in the Mali Empire, whose oral constitution, the Kouroukan Fouga, reflects how the population was structured according to its tribe of origin. These considerations can be extended to documents such as the Golden Bull of Andrew II in Hungary in 1222; the Confirmatio fororum et libertartum of 1283 and the Privilege of the Union of 1287, both from Aragon; the Bayerische Freiheitsbriefe und Landesfreiheitserklärungen from 1311 onward; or the Joyeuse Entrée of Brabant of 1356. In all these cases, the rights and freedoms recognized belong to the sphere of pacts between the Monarch and the estates of the realm: in short, they are not human rights but corporate rights or privileges.

Greco-Roman society

In Ancient Greece, a notion of human dignity vis-à-vis the community that could be articulated in the form of rights was never constructed; rather, people were understood to belong to society as parts of a whole, and it was society's ends that prevailed. The only opposition to tyranny rested on appeal to divine Law as opposed to the norm, as shown in the myth of Antigone, set down by Sophocles in the tragedy of the same name.

Greek society was divided into three main groups: citizens, metics or foreigners, and slaves. Slavery was considered natural, which is reflected in the statement of Aristotle, for whom "it is clear that some men are by nature free, and others slaves, and that for these latter slavery is both expedient and right". Political organization was structured in polis or city-states: for the Greeks, society was a necessary consequence of human nature. In this context, the political theories of Plato and Aristotle placed great emphasis on the concept of the common good. For Plato, once men are grouped in society, society takes shape in the polis, whose common good takes precedence over the particular good of the individuals who make it up. Justice, in turn, is the safeguard of the common good, and it is expressed through laws, which are the instruments that make it possible to achieve both the collective and the individual good. Nevertheless, in his eagerness to achieve a perfect society, Plato went so far as to recommend putting deformed or sickly newborns to death, and killing or banishing the unsociable.

Aristotle also considered that man was a social being who could not fulfill himself outside the family and society, so he too subordinated the individual good to the common good. Moreover, by defining the city as a community of free citizens, he reduced the common good to the good of a particular social group that excluded women, foreigners, workers and slaves. On this view rests the Aristotelian idea of justice, which states that "equality among equals is as just as inequality among unequals".

As Greek culture declined, after Hellas was conquered by Rome, philosophies spread that placed the emphasis on the pursuit of individual happiness, among them Epicureanism and Stoicism. Stoicism regarded human reason as part of a divine logos, which contributed to conceiving man as a member of a universal family beyond the polis. Seneca, Epictetus, Marcus Aurelius and Cicero were among those who spread Stoic philosophy through the Latin world.

Influence of Christianity

Stoic philosophy, widespread in Greco-Roman society, conceived the idea of cosmopolitanism, to which Christianity gave a more spiritual meaning in order to affirm the equality of men and women as citizens of the Kingdom of God and their dignity; nevertheless, according to Luis de Sebastián, for medieval Christian theologians theological equality was compatible with social inequality: people were born with a social status that, in accordance with divine design, was the most suitable for their salvation.

Christianity, derived from the Jewish religion, inherited from it, among other things, the tradition of mišpat, a legal concept with a rich semantic range. It denotes judicial decisions and just legal judgment; in relation to law, the kind of law manifested in the defense of the poor and oppressed, which is in turn linked to the messianic goods that are awaited. Since, until modernity, the term law (derecho) was attributed mainly to "what is just" as an objective order, in ancient or medieval Christian thought there was no explicit reference to human rights; but there was a recognition of demands of justice descending from this Jewish tradition. For example, the New Testament contains teachings against injustice, homicide, theft, slander and selfishness in the use of goods. In the Epistle of James, the apostle denounced employers who did not pay their employees their just wages. Christianity gradually poured its doctrine into Roman law, improving the situation of slaves, children and women, whose status in Christian philosophy was much higher than in Greco-Roman philosophy. In the economic sphere, it condemned usury and exploitation, laying the foundations of the doctrine of the just price.

These ideas were developed by the Church Fathers, who proclaimed a social and limited sense of property and of law. But it was Thomas Aquinas who laid the foundations of the medieval legal order, taking up ideas from Aristotle and Augustine of Hippo and affirming that, in addition to the positive law determined and established by men, there exists a natural law, proper to the rational creature, which no man and no government may disregard.

Christian doctrine postulated the existence of two kingdoms, the temporal and the spiritual, following the distinction made by Jesus of Nazareth ("Render unto Caesar the things that are Caesar's, and unto God the things that are God's"). Faced with the problem of reconciling individual and social interests, Thomas Aquinas stated in his Summa Theologiae that if there was a conflict between the social and the individual within the material world, the common good should prevail. But if, on the contrary, the conflict affected the intimate sphere of the human being and his salvation, then the good of the man would prevail over that of society. In this sphere, where there is a manifest conflict between positive law and natural law, Thomist thought implies the existence of a right of resistance against the arbitrary will of rulers.

School of Salamanca

Spanish scholasticism during the 16th and 17th centuries, represented by Luis de Molina, Domingo de Soto and Francisco Suárez, members of the School of Salamanca, defined law (derecho) as a moral power over what is one's own. Although they maintained at the same time the idea of law as an objective order, they stated that certain natural rights exist, mentioning both rights relating to the body (the right to life, to property) and to the spirit (the right to freedom of thought, to dignity). The jurist Vázquez de Menchaca, starting from an individualist philosophy, was decisive in spreading the term iura naturalia. This natural-law thought was fostered by contact with the American civilizations and by the debate that arose in Castile over the just titles of the conquest and, in particular, the nature of the natives.

In the Castilian settlement of America, it is usually said, measures were applied in which the seeds of the idea of human rights are present, debated in the well-known Valladolid Controversy that took place in 1550 and 1551. Nevertheless, some criticize that, in practice, these measures were formulated to achieve colonization objectives. The thought of the School of Salamanca, especially through Francisco Suárez and Gabriel Vázquez, also contributed to the rise of European natural law through Hugo Grotius.

The rights proclaimed by the School of Salamanca were grounded in the very nature of the person, considered worthy merely by the fact of existing (an idea already taken up by Saint Thomas Aquinas). Natural Law is what these theologians put on the table in the face of the discovery of the New World.

The natural law of the Salamanca School that arose in the wake of the conquest represents the genesis of what would later be known as human rights. They conceived the world as a "universal international community" based on human nature, which possesses dignity in itself, and whose supreme principle of coexistence was the common good.

The opposing positions met at the Junta de Valladolid (1550–1551), convened by Charles I to try to establish the main line of the conquest. Against the position of Sepúlveda stood the Dominican Bartolomé de las Casas, who took up the theories of the School of Salamanca and of the late Francisco de Vitoria. The line of the latter held that the Indians had the right to be free, to life, to the legitimate defense of life, to the means that guaranteed their existence, to freedom of worship, to property, to education, to instruction, to family, to the upbringing and education of their children, and even to take part in the government of their country. All of this is set out in the Relectio de Indis that Francisco de Vitoria had written some time before.

Bourgeois revolutions and the enactment of human rights in positive law

Liberty Leading the People, by Eugène Delacroix (1830). Human rights were written into law in the wake of the bourgeois revolutions of the 17th and 18th centuries.

During the English Revolution, the bourgeoisie managed to satisfy its demands for some kind of security against the abuses of the crown and limited the power of the kings over their subjects. Having proclaimed the Habeas Corpus Act in 1679, in 1689 Parliament imposed on William III of England, in the Bill of Rights, a series of principles on which monarchs could not legislate or decide. This closed the way to the restoration of absolute monarchy, which was based on the English Crown's claim that its right was of divine design. According to Antonio Fernández-Galiano and Benito de Castro Cid, the Bill of Rights can be considered a declaration of rights, but not of human rights, since those rights are recognized with national scope and are not considered to belong to every man.

During the 17th and 18th centuries, various European philosophers developed the concept of natural rights. Among them John Locke and Voltaire stand out, whose ideas were very important for the development of the modern notion of rights. Natural rights, for Locke, did not depend on citizenship or on the laws of a State, nor were they necessarily limited to a particular ethnic, cultural or religious group. The theory of the social contract, according to its three main formulators, the aforementioned Locke, Thomas Hobbes and Jean-Jacques Rousseau, is based on the idea that the rights of the individual are natural and that, in the state of nature, all men hold all rights. These notions were embodied in the declarations of rights of the late 18th century.

The direct cause of the birth of Human Rights, from a sociological perspective, has also been an important subject of debate. On the one hand, Georg Jellinek argued that human rights were directly aimed at allowing the exercise of religious freedom; on the other, Karl Marx stated that they were due to the bourgeoisie's aim of guaranteeing the right to property. Max Weber, in The Protestant Ethic and the Spirit of Capitalism, states that there was a connection between the individualist ethic on which human rights were based and the rise of modern capitalism.

Declaration of the Rights of Man and of the Citizen, adopted by the French National Assembly on August 26, 1789.

The various culminations of the American Revolution and the French Revolution, fundamental milestones in the effective transition to the Contemporary Age, represent the end or the beginning, depending on how one sees it, of the complex process of recognizing or creating human rights. If the revolutions are the catalyst that gives rise to the gestation of human rights, the various birth certificates are the declarations of rights of the American colonies. The first declaration of the rights of man of the modern era is the Virginia Declaration of Rights, written by George Mason and proclaimed by the Virginia Convention on June 12, 1776. It greatly influenced Thomas Jefferson in the declaration of human rights contained in the United States Declaration of Independence of July 4, 1776. Both texts influenced the French Declaration of the Rights of Man and of the Citizen of 1789. These declarations, grounded in rationalist natural law, represent the conversion of subjective right into the center of the legal order, and law as a social order is subordinated to it.

As a result of this natural-law influence, the rights recognized are meant to cross national borders and are considered "rights of men". Although the first recorded use of the expression "rights of man" (iura hominum) occurred as early as 1537, in a text by Volmerus entitled Historia diplomática rerum ataviarum, the term did not become popular among scholars until the end of the 18th century, with Thomas Paine's The Rights of Man (1791–1792). As set out in the Declarations, both the French and the American revolutionaries considered these rights inalienable and inherent to human nature, even "self-evident" truths according to the United States Declaration of Independence. Despite this, they decided to set them down in public declarations, which is justified on legal and political grounds. On the first, it must be borne in mind that for the revolutionary Enlightenment it is the constitution that guarantees rights and freedoms, which explains their positive formulation. On the second, the aim was to make it easier to safeguard the free development of the individual in society against the arbitrariness of power: the Preamble to the Declaration of the Rights of Man and of the Citizen already stated expressly that "ignorance, neglect or contempt of human rights are the sole causes of public misfortunes and of the corruption of governments".

New demands and the internationalization of rights

The notion of human rights contained in the Declarations, based on the bourgeois ideology of philosophical individualism and economic liberalism, did not undergo great changes over the following century until, faced with the dreadful living conditions of the working masses, trade union movements and workers' struggles arose that articulated their demands in the form of new rights intended to solve certain social problems through State intervention, such as the guarantee of the right to strike, minimum working conditions, or the prohibition or regulation of child labor. From the first half of the 19th century a new social philosophy had developed, which manifested itself in utopian socialism, the reformism of the Catholic Social School, social democracy, anarchism and scientific socialism. In this new phase the Russian Revolution, the Mexican Revolution and the Córdoba University Reform (Argentina) were very important.

In addition to workers' struggles, over the course of the contemporary age the movements for women's suffrage won for many women the right to vote; national liberation movements managed to free themselves from the rule of the colonial powers; and various claims of oppressed racial or religious minorities, civil rights movements and identity politics movements defending the cultural self-determination of human groups triumphed.

Eleanor Roosevelt holding the Universal Declaration of Human Rights in Spanish

The 20th century was also characterized by the incorporation of human rights into international law. If at the beginning of the century it was asserted that this branch of law regulated only relations between States and excluded private individuals, the change was rapid, and after the Second World War, according to Juan Antonio Carrillo Salcedo, human rights could be considered a constitutional principle of contemporary international law. It is especially since the birth of the United Nations in 1945 that the concept of human rights has become universal and has acquired the great importance it has in international legal culture. On December 10, 1948 the Universal Declaration of Human Rights was adopted and proclaimed by the United Nations General Assembly in its Resolution 217 A (III), in response to the horrors of the Second World War and as an attempt to lay the foundations of the new international order that was emerging after the armistice.

Numerous international treaties on the subject have since been approved, notably the European Convention on Human Rights of 1950, the International Covenants on Human Rights of 1966 (the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights), and the American Convention on Human Rights of 1969, which create various mechanisms for their promotion and guarantee.

Nature and foundation

Norberto Bobbio asserts the impossibility of finding an absolute foundation for human rights and gives four reasons for this. First, the absence of an unequivocal and clear concept of them; second, their variability over time; third, their heterogeneity; and fourth, the antinomies and conflicts that exist between different rights, such as between civil and political rights on the one hand and social and cultural rights on the other. At the Colloquium of the International Institute of Philosophy held in L'Aquila in 1964, Bobbio proposed replacing the search for an impossible absolute foundation with the study of the various possible foundations supported by the social sciences. And, in any case, for the Italian jurist, the basic problem concerning human rights is not their foundation but their implementation and protection. But many jurists and philosophers do not share this belief; on the contrary, the foundation of human rights has been and is a subject of great interest over time, and most consider it a theoretical task with great impact on practice.

Each of the numerous theories that thinkers have developed is influenced by the dominant Philosophy of the historical moment in which it was conceived, and starts from very different worldviews and conceptions of the human being, to whom they attribute or deny certain immanent characteristics. For some, the axis of human rights is a series of concrete rights (according to Herbert Hart, the right to liberty; according to John Rawls, certain fundamental rights corresponding to certain fundamental duties; according to Ronald Dworkin, the right to equality before the law); for others, human rights are the normative translation of a series of values, apprehended from reality or socially constructed. A third group considers that human rights are criteria or limits to which the activity of public authorities or the market must conform, a thesis defended both from a natural-law axiology (Luis Recasens Siches) and from a critical legal positivism (Luigi Ferrajoli). Finally, various theories hold that human rights are the codification of moral conduct which, according to David Hume, is a social and human product that develops in a process of biological and social evolution. Sociological theories of law and the works of Max Weber consider that conduct develops as a sociological pattern of norm-setting.

As for their foundation, depending on the conception of law one holds (natural-law, rationalist natural law, positivist, linked to legal realism or to legal dualism, among others), the conceptual category of human rights may be considered derived from divinity, observable in nature, accessible through reason, determined by contexts in the many ways in which History can be understood, a synthesis of ideas from these or other ideological and philosophical positions, or a mere nonexistent concept without validity.

Natural law

Natural-law theses are those that affirm the existence of natural law. Although this concept has been understood differently in each period, all these doctrines agree in affirming the existence of a juridical order prior to and founding positive law: enactment in positive law, therefore, would merely declare rights that already exist. This conception is reflected in the declarations of rights of the 18th century, and article 1 of the Universal Declaration of Human Rights states that "all human beings are born free and equal in dignity and rights", which jurists such as Hans Kelsen regard as a clear manifestation of the doctrine of natural law.

Some natural-law theories claim that human rights are based on biological aspects, such as the advantage for the survival of the species, in the context of natural selection, of conduct based on empathy and altruism. Others ground them in the natural moral order as derived from certain religious precepts. They consider moral conduct a set of objectively valid prescriptions and appeal to texts such as the Bible or the Quran. In contrast to these, since the 17th century, with Hugo Grotius, rationalist natural law has gained strength, in the hands of authors who progressively detach themselves from the idea of God, basing themselves solely on pure reason, although there are today various natural-law foundations of religious character or inspiration. Among them is the Social Doctrine of the Church, which takes up the ideas of the Church Fathers and Thomas Aquinas. Reaching what is truly human is one of the main critiques in the statements of Paul VI in his encyclical "Humanae vitae". Life is a feeling from a divinity toward the common good expressed in Christian reality, from the morality of well-being.

According to the Social Doctrine of the Church, the solid or immediate foundation of rights lies in the natural law, the norm (of natural law) that is the balanced source of each person's rights and duties; in turn, its ultimate foundation is God himself: the order with which God governs the universe is called the eternal law, of which natural law is a participation or derivation. Human rights are objective inasmuch as they do not depend on the subjectivity of whoever holds them or is bound by them. Therefore, they are not subject to anyone's moods, opinions or will; nor to consensus, not even that of the majority. For the Catholic Church, moreover, another characteristic of human rights is their sociability: since man is naturally social, there are natural rights of the person as an individual, but also as a member of various natural social groups; that is, natural rights of the family, of associations or of nations. For the same reason, rights are ordered to the common good and are constitutively limited. More specifically regarding their precision and limitation, human rights refer to what is concretely just, so they do not mean the recognition of a freedom to do anything, at any time or in any way.

One of the most relevant and influential human rights theorists was John Locke, who raised the defense of natural rights to the category of the fundamental principle legitimizing government and the basic end of civil society. Locke based his ideas on the concept of property, which he used in a broad sense and in a restricted sense. In the broad sense, it refers to a wide set of human interests and aspirations; more restrictively, it refers to material goods. Locke stated that property is a natural right and that it derives from labor. He also said that property precedes the State and that the State cannot dispose of its subjects' property arbitrarily. According to Locke, to deny the right to property is to deny human rights. The British philosopher had great influence in the United Kingdom and was decisive in the philosophy on which the founding of the United States was based.

Some philosophers have considered that human rights derive from a particular fundamental right or value. For many authors, among them Samuel Pufendorf, the system of man's natural rights derives from his dignity; others, such as Hegel or Kant, stated that freedom is the foundation of human rights and, at the same time, the chief among them. Kant represented the culmination of a process aimed at purging natural-law theories of historical or empirical elements, by grounding his theory of natural law in a priori principles, understood as demands of practical reason.

In the second half of the 20th century, after its decline in favor of positivist ideas, natural law resurged strongly with a multitude of very diverse theories. Of these, some maintain an objectivist foundation of human rights, inasmuch as they affirm the existence of an order of values or principles with objective and universal validity, independent of individuals. Others, the subjectivist ones, place human autonomy as the source of all values; they base human rights on the rational self-awareness of human dignity, freedom and equality. Finally, the so-called intersubjectivist theses, which arise from an attempt at synthesis between the two previous tendencies, regard human rights as values rooted in common needs and therefore intrinsically communicable.

Legal positivism

Positivist theses are directly opposed to natural-law ones, since they consider that the only set of norms with a legal character is positive law. They therefore assert that enactment in positive law has a constitutive character, denying the legal character of natural law or even its existence. John Austin considered that human rights are part of the social norms that influence law, but are not law: for many positivists, human rights are moral ideas, but without legal value in themselves. To have such value, they must be incorporated into the legal system: laws are the legal formulation of the sovereign will of the people and are binding. It is neither necessary nor appropriate to resort to any support other than the legal one.

The growing acceptance of legal positivism throughout the 19th century pushed natural law aside and led to human rights being embodied, as fundamental rights, in the Constitutions of Western countries. The process relied on the category of subjective public rights, which arose as an alternative to that of natural rights, which positivists considered ideological in character. The theory of objective public rights recognized the legal personality of the State, which thus became the holder of rights and duties. After the rise of totalitarian regimes in the 1920s and 1930s and the Second World War, there was a resurgence of natural law that led authors such as Hans Kelsen, Alf Ross, Herbert Hart and Norberto Bobbio to react by clarifying the fundamental concepts of positivist theories. This caused a diversification of legal positivism that produced theses that were sometimes incompatible with one another.

Some of these recent theses make room for the defense of human rights. One of them is the dualist theory of rights, formulated by Gregorio Peces-Barba and very similar to the one articulated by Eusebio Fernández, which incorporates some elements proper to natural law, inasmuch as only rights with a moral foundation are fundamental; but at the same time it considers enactment in positive law a necessary requirement for a human right to be one. It therefore conceives rights as the crossroads between the legal and the ethical, and as the normative translation of the values of dignity, freedom and equality, while also legitimizing public authorities. The theory of legal guaranteeism, defended by Luigi Ferrajoli, states that the rule of law has both a formal and a material legitimacy. Formal legitimacy refers to the rule of law; material legitimacy, to the binding of all the powers of the State to the satisfaction of fundamental rights, of which, according to the Italian jurist, human rights are a subclass.

Both theories go beyond a purely formal legal positivism and, keeping to the internal mechanisms of the legal system, provide material criteria to ensure the stabilization of the legal order and the guarantee of fundamental rights. María de Lourdes Souza considers it important to take their context into account: guaranteeism, which is based on the rule of law, arises in a democratic socio-legal context which, although it shows regressive tendencies, is more or less egalitarian and just. In the same way, legal dualism is set within a particular legal and political framework, that of the social and democratic State under the rule of law.

Realist theses

Realist theses can be defined as those for which enactment in positive law is one requirement, among others, that influences the effectiveness of human rights. They encompass a very diverse and heterogeneous set of doctrinal positions, which assert that it is people's practice that gives meaning to human rights. They criticize the ideal conception of rights held by natural law, as well as the purely formal one of legal positivism, asserting that both currents are excessively abstract and do not take into account the economic and social conditions on which the effective enjoyment of rights depends. In general, realist theses insist on one of the following spheres: on the political level, on the conditions of political and economic democracy necessary for the real enjoyment of human rights; on the legal level, on the mechanisms of guarantee and protection; and on the sociological level, on collective awareness of human rights.

The realist position is related, to a great extent, to socialism. Already in On the Jewish Question, one of his first works, Karl Marx criticized the bourgeois notion of human rights, which he described as rights of the egoistic individual based on an abstract conception of freedom and emancipation. For the German philosopher, bourgeois human rights were a set of legal protections for the defense of the class owning the means of production. Marx stated that it is material conditions that determine the real scope of human rights, and that their effective realization requires genuine political emancipation.

Helio Gallardo and Joaquín Herrera Flores assert that human rights rest on social fabrics, on intersubjective relations and experiences. Helio Gallardo considers that the foundation of human rights is the transfers of power that occur between social groups, as well as the institutions in which they are articulated and the logics that inspire social relations. These transfers of power may or may not be enacted in positive law, and may be more or less precarious. For Joaquín Herrera, along similar lines, human rights are the practices and means by which spaces of emancipation are opened that incorporate human beings into the processes of reproduction and maintenance of life.

The consensus theory of truth, developed by Jürgen Habermas (a member of the Frankfurt School), proposes an intersubjective foundation of values and rights, through a rational agreement reached under ideal conditions. Along similar lines, for Chaïm Perelman human rights are grounded in the moral experience and conscience of a consensus reached through a particular process. These are foundations on which those he calls "reasonable minds" agree and which would likewise be approved by "universal audiences", those regarded as valid interlocutors for each matter.

Utilitarianism

At first, utilitarianism emerged as an alternative to the idea of human rights rather than as a proposal for their foundation; although later John Stuart Mill and other authors tried to ground human rights in this philosophy. Utilitarianism, as an ethical doctrine, regards "the greatest happiness of the greatest number as the measure of right and wrong". Utilitarians start from the rejection of the idea of human rights as natural rights: especially critical of this idea was Jeremy Bentham, who described as nonsense the assertion that rights exist prior to the State: rights, if they exist, are a social product justified by the principle of utility.

According to John Stuart Mill, rights are rules for maximizing happiness; but he adds that rights are not absolute since, under certain exceptional conditions, complying with them takes us so far from the end (the maximization of social utility) that the loss of happiness cannot be offset by the considerable weight they carry.

This utilitarian foundation has been criticized for the lack of guarantee it gives human rights, which could be violated in order to achieve the greatest happiness of the greatest number. John Rawls and James Fishkin have particularly stressed this point. Thomas Nagel and many others have denounced the use of the utilitarian approach to justify the use of large-scale violence against the civilian population or the use of weapons of mass destruction understood as a lesser evil, the quickest way to obtain victory in a war and supposedly avoid a greater number of deaths. The utilitarians' reaction to these criticisms gave rise to theories such as rule utilitarianism, ideal rule utilitarianism, or the integration of a principle of respect for persons. Richard Brandt defines rule utilitarianism as the view that "an act is obligatory only if the uniform acceptance of a corresponding rule will maximize expectable utility". Rule utilitarianism, therefore, assesses not only the effects of a specific act but the effects of its generalization.

Institutional and legal aspects

Human rights have growing legal force, inasmuch as they are integrated into the constitutions and, in general, into the legal system of States. Also, in the sphere of the international community, through their recognition in numerous international treaties (both general and sectoral; universal and regional) and through the creation of judicial, quasi-judicial or other bodies for their defense, promotion and guarantee.

Moreover, owing to their acceptance, various human rights are considered part of customary international law and some even norms of jus cogens, as international bodies such as the Human Rights Committee and the International Court of Justice have stated. Among them are the prohibition of torture and of arbitrary deprivation of life and access to minimum procedural guarantees and the prohibition of arbitrary detention.

Human rights and constitutional rights

It is important to distinguish human rights from constitutional or fundamental rights and not to confuse them. Although human rights are generally included among constitutional rights, they do not always coincide. To determine which rights are "constitutional" it is enough to consult the catalog of rights recognized by the political constitutions of States; the concept of "human rights" belongs rather to the sphere of the Philosophy of law.

The relationship between the two concepts has been studied by numerous authors and is problematic. Among those who recognize the validity of the concept of human rights, natural-law theories consider that the existence of human rights is independent of their recognition as constitutional rights. For some authors, such as Francisco Laporta, there would be a small number of basic human rights, from which the more concrete constitutional rights would derive.

For dualist theories, for their part (those that give importance both to the moral foundation of rights and to their enactment in positive law), the concepts of human rights and constitutional rights would have equivalent content. Luigi Ferrajoli considers, in his theory of legal guaranteeism, that while constitutional or fundamental rights are those recognized in the charter of States, human rights are those recognized to everyone, regardless of their citizenship and their capacity to act: a country's constitution, for example, may grant its citizens rights that do not extend to non-nationals (for example, the right to vote). In that case these would be constitutional rights recognized to the citizen, but they could not be human rights if they are not recognized to all persons whatever their condition.

Generational classification

Although most legal doctrines distinguish several generations of human rights, there are many different classifications. All tend to agree in describing the first generation, but then they branch out and become more complex. Moreover, there are at least two conceptions of this generational view. For one of them, the generations are the expression of a rationality that is progressively realized over time; for others, each generation of human rights is the expression of a different rationality and may come into conflict with the others. On the other hand, there are positions that avoid taking a stand on the categories of human rights and instead tend to approach them as a unitary system.

Each new generation, classified chronologically in relation to the previous ones, has been criticized. If first-generation rights were already criticized, so were second-generation rights during the 20th century, although today almost all jurists accept them. Today the existence of a third generation of human rights is a subject of debate since, from both the legal and the political points of view, the indeterminacy of this category and the difficulty of guaranteeing it are criticized. Despite these objections, there are theories that speak of four and even five generations of human rights.

Three generations of human rights

Main articles: Three generations of human rights; Civil and political rights; and Economic, social and cultural rights

The division of human rights into three generations was first conceived by Karel Vašák in 1979. Each is associated with one of the great values proclaimed in the French Revolution: liberty, equality, fraternity.

First-generation rights are civil and political rights, linked to the principle of liberty. They are generally considered rights of defense or negative rights, which require public authorities to refrain from interfering in the private sphere. Second-generation rights, for their part, are economic, social and cultural rights, which are linked to the principle of equality. Their effective realization requires the intervention of public authorities through benefits and public services. There is a certain contradiction between rights against the State (first generation) and rights over the State (second generation). Defenders of civil and political rights frequently describe economic, social and cultural rights as false rights, since the State can satisfy them only by imposing their realization on others, which for them would mean a violation of first-generation rights.

Third-generation rights, for their part, which emerged in legal doctrine in the 1980s, are linked to solidarity. What unifies them is their impact on everyone's life, on a universal scale, so their realization requires a series of efforts and cooperation at a planetary level. They normally include heterogeneous rights such as the right to peace, to quality of life or guarantees against genetic manipulation, although different jurists associate these rights with other generations: for example, while for Vallespín Pérez protection against genetic manipulation would be a fourth-generation right, for Roberto González Álvarez it is a manifestation, in the face of new threats, of first-generation rights such as the right to life, liberty and physical integrity.

Human rights covenants and conventions

The following covenants and conventions have been adopted by numerous organizations, among them the United Nations. Some countries have signed and ratified the covenants, others have only signed them, and others have neither signed nor ratified them.

Instrument	Date of adoption	Date of entry into force	Number of countries that ratified it
International Covenant on Economic, Social and Cultural Rights	December 16, 1966	January 3, 1976	164
International Covenant on Civil and Political Rights	December 16, 1966	March 23, 1976	167
International Convention on the Elimination of All Forms of Racial Discrimination	December 21, 1965	January 4, 1969	167
International Convention for the Protection of All Persons from Enforced Disappearance	December 20, 2006	December 23, 2010	53
Convention on the Elimination of All Forms of Discrimination Against Women	December 18, 1979	September 3, 1981	187
Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment	December 10, 1984	June 26, 1987	161
Convention on the Rights of the Child	November 20, 1989	January 18, 2002	196
International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families	December 18, 1990	July 1, 2003	149
Convention on the Rights of Persons with Disabilities	December 13, 2006	May 3, 2008.	173

Other proposals

Authors such as David Vallespín Pérez, Franz Matcher, Antonio Pérez Luño, Augusto Mario Morello, Robert B. Gelman, Javier Bustamante Donas and Juan Carlos Riofrío Martínez-Villalba assert that a fourth generation of human rights is emerging. Nevertheless, its content is not clear, and these authors do not present a single proposal. They normally take some third-generation rights and include them in the fourth, such as the right to the environment or aspects related to bioethics. Javier Bustamante states that the fourth generation consists of human rights in relation to new technologies, while Riofrío prefers to speak of digital rights, which would include a new range of rights, such as:

• The right to exist digitally
• The right to digital reputation
• Digital esteem
• Digital freedom and responsibility
• Virtual privacy, the right to be forgotten, the right to anonymity
• The right to big-reply
• The right to a digital domicile
• The right to technology, to updates, to patches
• The right to cyber peace and computer security
• The right to a digital will

Others point out that the distinguishing element would be that, while the first three generations refer to the human being as a member of society, fourth-generation rights would refer to the human being as a species. This idea had been agreed in the Charter of the United Nations (see point 5) when its preamble stated, "we the Peoples of the United Nations determined … to reaffirm faith in fundamental human rights, in the dignity and worth of the human person, in the equal rights of men and women and of nations large and small... have resolved to combine our efforts to accomplish these aims", and then more explicitly, when they expressed among their purposes the following: "to achieve international co-operation in solving international problems of an economic, social, cultural, or humanitarian character, and in promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language, or religion". To fulfill this purpose, the State was initially still conceived as the immediate agent, to whose custody the Western tradition had entrusted a certain number of guarantees to the citizen, beginning with the English, North American and French revolutions. But the precarious development of democracy in the world, the bitter experience of the Second World War and the chaotic political situation created by its consequences in many nations showed that the enshrining of human rights in constitutions and domestic laws was not enough to ensure their protection and respect by governments. In numerous States, for various reasons, the protection of national law was eliminated, suspended, made inoperative or openly violated by governments of force or with a legal mask.

Helio Gallardo, for his part, defends the existence of five generations of human rights, which he identifies with the claims of different social groups. They would be civil and political rights, claimed by the bourgeoisie; economic, social and cultural rights, proper to the workers' and anti-slavery movements; the rights of different peoples and sectors, including the struggles for decolonization and feminist struggles; environmental rights, which he defines as rights of future generations; and those relating to control over one's body and one's own genetic organization, in opposition to the commodification of the inner life.

Human rights of the 21st century: the Universal Declaration of Emerging Human Rights

The Universal Declaration of Emerging Human Rights (UDEHR) arose from a process of dialogue among various components of civil society, organized by the Human Rights Institute of Catalonia within the framework of the Universal Forum of Cultures Barcelona 2004, entitled Human Rights, Emerging Needs and New Commitments. On November 2, 2007, within the framework of the Monterrey Forum (Mexico), the UDEHR was approved.

Emerging human rights represent a new conception of civil society participation, giving a voice to national and international organizations and groups that have traditionally had little or no weight in shaping legal norms, such as NGOs, social movements and cities, in the face of the social, political and technological challenges posed by globalization and global society. The UDEHR does not seek to replace or invalidate the 1948 Universal Declaration of Human Rights, nor the national or international instruments for the protection of human rights; rather, it seeks to update and complement them, respond to the challenges of global society and act as a complement from the point of view of participatory citizenship.

We, the citizens of the world, members of civil society committed to Human Rights, forming part of the universal political community, gathered on the occasion of the Universal Forum of Cultures in Barcelona 2004 and Monterrey 2007, and inspired by the values of respect for the dignity of the human being, liberty, justice, equality and solidarity, and the right to an existence that makes it possible to develop uniform standards of well-being and quality of life for all […]

— Preamble of the Universal Declaration of Emerging Human Rights

Human right to peace

Since the Universal Declaration of Human Rights, the concept of peace has undergone conceptual developments that have led it to be considered a "positive and dynamic" peace "that entails respect for human rights and the integral development of peoples" and not as the mere absence of violence.

Over time the concept has come to encompass other aspects such as conflict resolution and disarmament, socio-economic development, human rights and environmental problems. That is, peace is no longer considered the state that follows the end of a conflict. Peace "has a positive meaning with a threefold objective: to achieve the satisfaction of the basic needs of all human beings, the elimination of all kinds of violence (structural, family, marital) and effective respect for all human rights (…)". Having and living in peace does not only mean not living in war; it implies the satisfaction of basic needs and guaranteed economic, social, political and cultural development; respect for the environment and the demand for justice and knowledge of the truth, as well as asylum. In this way, peace is a consequence of the satisfaction and existence of the other Human Rights and, therefore, is also inherent to every human being.

This recent conception therefore implies considering peace as an individual but also a collective right, since "persons, groups, peoples and all of humanity have the inalienable right to a just, sustainable and lasting peace", conditions guaranteed by, among others, the states. This implies considering peace a third-generation right or right of solidarity. Third-Generation rights, or rights of solidarity, are collective rights that emerged in the 1960s and therefore address matters of a supranational character. Their resolution affects specific sectors of society and they therefore intrinsically contain the value of co-responsibility.

This vision crystallized in Spain with the Luarca Declaration on the Human Right to Peace in 2006, taken up by the Spanish Society for International Human Rights Law (AEDIDH). Its preamble already mentions that "peace is not limited to the strict absence of armed conflict". Shortly after, the text "describes the human right to peace as a right with its own entity, universal vocation and intergenerational character. Peace is a right and a need of persons and of groups (…). On these premises the right to peace is clearly placed among the so-called rights of solidarity, of a markedly collective nature, which, although they have their own content, rest on individual rights".

The Luarca Declaration recognizes the following rights: the right to education in and for peace and the other human rights; the right to human security and to live in a safe and healthy environment; the right to development and to a sustainable environment; the right to disobedience and conscientious objection; the right of resistance against oppression and totalitarianism; the right to disarmament; freedom of thought, opinion, expression, conscience and religion; the right to refuge; the right to emigrate and to participate; and the rights of victims and of groups in vulnerable situations.

It also sets out obligations. Essentially, the states and the UN are chiefly responsible for guaranteeing the human right to peace. States have the obligation to adopt measures to build and consolidate peace, as well as to protect Humanity from war. On the other hand, the UN must be strengthened in the twofold action of preventing violations and protecting human rights and human dignity, including the human right to peace.

Other entities have adopted the Declaration in their cities (as in the case of Barcelona through the International Catalan Institute for Peace, ICIP, in 2010), and there are currently various working groups focused on integrating the right to peace into international law with the help of, among others, the World Alliance for the Human Right to Peace.

The preamble of the two International Covenants on Human Rights already considers that "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". The Proclamation of Tehran (1968), the Declaration on Social Progress and Development (1969) and the Vienna Declaration (1993) follow the same line.

Today there are international instruments that enshrine the right to peace as a human right, but they are all declaratory resolutions without legal force. Thus, the right to peace is recognized, but for the time being it has no legal protection, responsibility or means of being guaranteed. For this reason it is urgent to incorporate the human right to peace into an international treaty which, duly ratified, would have effects in domestic legal systems. But in order to create obligations between states, the right to peace must be incorporated into international treaties. There are three ways of doing so: in an additional protocol to the European Convention for the Protection of Human Rights and Fundamental Freedoms, in a new covenant on third-generation rights, and in a Declaration of the United Nations General Assembly.

The above options are not simple. The first option could not be considered valid since, to guarantee compliance with the Convention, a judicial body was created to protect the civil and political rights deriving from the Protocol. These are not protected in the same way as economic, social and cultural rights, since the latter are collective and of progressive development. Peace is a collective right, but it also has individual elements that would allow victims to resort to international justice. A new covenant on third-generation rights is beneficial in a certain way because third-generation rights must be treated in a special way, being fundamentally collective. However, as mentioned above, the right to peace has an individual dimension that would be lost if it could not be brought before the courts by this route. Finally, the last method would produce a great theoretical impact at the international level, but little relevance in legal terms. The Declaration in itself lacks legal effects and, therefore, states are not obliged to comply with it. In this case, a declaration would be the preliminary step for it to be escalated and incorporated into an international treaty.

See also

• Natural law
• Civil and political rights
• Constitutional rights
• Children's rights
• Social Doctrine of the Church
• Amnesty International
• International Bill of Human Rights
• Inter-American Commission on Human Rights
• Commission for the Investigation of Attacks on Journalists CIAP-FELAP
• Valladolid Controversy
• European Convention on Human Rights
• Inter-American Court of Human Rights
• International Court of Justice
• International Criminal Court
• Social criticism
• Declaration of Human Duties and Responsibilities
• Universal Declaration of Human Rights
• Individual rights
• Reproductive rights
• Discrimination
• Women's emancipation
• United Nations Development Fund for Women UNIFEM
• Habeas corpus
• Justice
• Social justice
• Civil Rights Act of 1871
• Liberty
• Civil rights movement in the United States
• International Labour Organization
• World Organisation Against Torture
• Tavistock Principles
• Recurso de amparo
• Secrecy of correspondence
• European Court of Human Rights

Bibliography

• Bulygin, Eugenio (1987). "Sobre el estatus ontológico de los derechos humanos" (PDF). Doxa: Cuadernos de filosofía del Derecho (in español) (4): 79–85. ISSN 0214-8676. Archived from the original (PDF) on September 5, 2008. Retrieved December 17, 2007.
• Clavero, Bartolomé (1994). Derecho indígena y cultura constitucional en América (in español). México: siglo veintiuno editores. ISBN 968-23-1946-3.{{cite book}}: CS1 maint: publisher location (link)
• Fernández-Galiano, Antonio (1999). Lecciones de Teoría del Derecho y Derecho Natural (in español). de Castro Cid, Benito. Madrid: Universitas. ISBN 84-7991-087-9.{{cite book}}: CS1 maint: publisher location (link)
• González-Carvajal, Luis (2005). En defensa de los humillados y ofendidos. Los derechos humanos ante la fe cristiana (in español). Santander: Sal Terrae. ISBN 84-293-1587-X.{{cite book}}: CS1 maint: publisher location (link)
• González Uribe, Héctor (1988–1989). "Fundamentación filosófica de los derechos humanos ¿personalismo o transpersonalismo?" (PDF). Jurídica. Anuario del Departamento de Derecho de la Universidad Iberoamericana (in español) (19): 325–341. ISSN 1405-0935. Retrieved October 1, 2007.
• Haaland Matlary, Jane (2009). Derechos humanos depredados (in español). Ediciones Cristiandad. ISBN 9788470575358.
• Pérez Luño, Antonio Enrique (2005). Derechos humanos, Estado de Derecho y Constitución (in español). Madrid: Tecnos. ISBN 84-309-4284-X.{{cite book}}: CS1 maint: publisher location (link)
• Ricoeur, Paul (coord.) (1985). Los fundamentos filosóficos de los derechos humanos (in español). Barcelona: Serbal/UNESCO. ISBN 84-7628-003-3.
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• Velasco Arroyo, Juan Carlos (1990). "Aproximación al concepto de los derechos humanos" (PDF). Anuario de Derechos Humanos (in español) (7): 269–284. ISSN 0212-0364. Retrieved September 15, 2009.
• De la Barreda, Luis (1999). Los Derechos Humanos Una Conquista Irrenunciable. Distrito Federal, Mexico: D.R. Dirección Genral de Publicaciones del CONACULTA

Further reading

• Joas, Hans (2013). The Sacredness of the Person: A New Genealogy of Human Rights. Georgetown University Press. ISBN 9781589019690.

External links

• Declaration of the Rights of Man and of the Citizen (Déclaration des Droits de l’Homme et du Citoyen). Assemblée nationale, 1789 (pp. 1–8).
  • Spanish text on Wikisource.
  • French text on Wikisource.
• Universal Declaration of Human Rights.
• UN page on Human Rights.
• Human Rights - Research Guide - UN Library website
• United Nations: what are human rights?
• YouTube video: The Declaration of Human Rights, by Human Rights Action Center.
• Normative table of human rights and their protection mechanisms.
• Derechos humanos para construir igualdad, Manos Unidas no. 192, 2013.