Author: Emilie Di Grazia
We often hear about the EU or the UN and non-governmental organizations, known commonly as NGOs, fussing around about human rights and decrying the lack of human rights implementation and respect.
It has become part of everyone’s speech, yet, its history, or what it actually means to have these rights, is something we often don’t engage with.
It’s precisely what this entry is about. Let’s go back to the basics – so that we can understand how it relates to the digital world.
Eleanor Roosevelt, December 9th, 1948 – Chair of the United Nations Human Rights Commission and driving force behind the Universal Declaration of Human Rights, proclaimed in Paris by the UN General Assembly on December 10th, 1948.
I don’t know for you, but, I haven’t found my own human rights just standing there in the street, waiting for it to be seized. I mean, don’t get me wrong, it would be nice if human rights were respected and everyone was equal without having to fight for it. The reality is, however, that human rights need to be routinely proclaimed, protected and fulfilled.
This is why the international human rights framework has been traditionally understood as having «rights holders » and « duty-bearers. »
So where to find our human rights?
I won’t bore you with history, but introducing what is often referred to as the International Bill of Human Rights, constituted of three international legal instruments, is quite fundamental to the rest of the story.
First, and perhaps best known, is the Universal Declaration of Human Rights (UDHR) adopted by the nascent United Nations on December 10th, 1948 (also known internationally as Human Rights Day.) This declaration, however, is not binding on States: it was then thought to declare aspirations for better enjoyment of life, after the tragic events of the Second World war. BUT: all United Nations (UN) members are bound to it, in some ways.
While some lawyers argue that it has become law from its globally accepted use by States (also known as having become customary law), two treaties were then drafted and entered into force in January 1976, detailing the rights proclaimed and creating mechanisms, known as “committees”, for review of States human rights record and dissemination of the laws. The two treaties, the International Covenant on Civil and Political Rights (ICCPR) and International Covenant on Economic, Social and Cultural Rights (ICESCR) are, compared to the UDHR, binding to States that have ratified the Covenants. While stronger in obligations, it does not have the same universal application as the Declaration.
How do duties translate to? In a nutshell.
People often refer to human rights obligations as being of either “negative” or “positive” nature. The former refers to the obligation to not interfere – an example: the freedom of expression is entitled to all, and States have the obligation not to silence, censor, prohibit means of communications, or to threaten judicial pursuits or even death for imparting information or seeking information. Civil and political rights, in ICCPR, have been usually referred to as “negative” rights.
The “positive” obligations, require States’ actions to materialize these rights. It is often associated to economic, social and cultural rights, – an example: the right to education is entitled to all, and States have the obligation to ensure access to all without any discrimination, to invest in educational institutions both materially and content, etc. Economic, social and cultural rights in ICESCR have been usually referred to as “positive” rights – and thus dependent on the States’ development for fulfillment.
This conceptualization of human rights states obligations and the separation of these rights into two distinct categories is a result of the Cold War, as the West promoted civil and political rights, and the East promoted social and economic rights.
However, rather than an actual conception accepted in law, the conceptualization of rights in such a way is wrong. Indeed, no right is entirely negative or positive – let’s take our previous examples: without the infrastructure for communications technology, which is something that requires an enormous amount of resources and power, the mediums for enjoying the right to freedom of expression would not be accessible. By investing in these infrastructures, the State enables and fulfill the right to freedom of expression. Our other example, the right to education, also requires non-interference – States cannot, for example, deny education to a certain group of people for any form of belonging, and should there be individuals/groups denying this right to some, then it needs to interfere so that they may be able to enjoy.
A closer look also reflects the connection between these rights. Again, some argue that without basic education for all, not everyone has the same ability to enjoy their right to freedom of expression. As such, fulfillment of this right feeds into the other.
This is why, in 1993, the Vienna Declaration and Programme of Action were adopted, which declares that all human rights are « universal, indivisible and interdependent and interrelated ».
So let’s drop the old concept of how to conceptualize States human rights obligations for every right.
- The obligation to respect: refers to the obligation to not interfere with the rights of individuals.
- The obligation to protect : refers to the obligation to protect these rights from any type of denial from other actors.
- The obligation to fulfill : refers to the obligation to fulfill these rights so that they can be enjoyed by all.
Some argue that States also have the duty to promote human rights.
On the next entries, we will explore just how the United Nations and European Union works when it comes to human rights and reviews States records. Until then, I leave you with this quote: