Human rights: principles, history, and contemporary practice

Universality

Universality in human rights stands for universality. This means that human rights are valid everywhere and for all people at all times. As a natural right, they stand above all positive law and are thus independent of and in their essence inviolable by state legislation.

In order for this first subjective meaning to be practically realizable, the second intersubjective meaning must be fulfilled: The recognition of the human right and its practical validity for every human being. Accordingly, every human being is obliged to respect the human rights of his fellow human beings. Therefore, viable and legal instruments are needed to guarantee the universal recognition of human rights. It is therefore only possible to speak of a human rights guarantee if the claims are actually accepted and enforceable as legal norms. Therefore, all states that have joined the UN have been obliged to give full effect to human rights in their national legal systems.

However, universality in particular is not always guaranteed in practice, as the formulation and protection of specific human rights depend on political views and the associated legal enforcement within states and institutions. Constraints on who is considered a human being (legal subject), against whom these rights can be asserted (legal addressee), how the content of human rights is determined and who enforces them (sanctioning authority) are therefore conditioned by varying historical, cultural or even political factors in each case. Cultural relativism opposes the universal claim that human rights are universally valid.

Egalitarianism

Human rights are egalitarian, i.e. they apply equally to every human being; regardless of, for example, origin, gender, nationality, age, skin color, etc. This principle of equality is summarized in Article 1 of the Universal Declaration of Human Rights with:

Accordingly, every person is equal before the law and may not be discriminated against.

The discussion about equal rights for men and women also revolves around this important fundamental norm. However, social or societal equality is often confused with the prohibition of differentiation in human rights. Equality in all areas of life, including private ones, is not the content of the regulation, however. Equality of opportunity, in turn, is an actual legal reflex of the regulation, as far as it goes.

Inalienability

Human rights cannot be taken away from anyone, nor can they be willingly given up or ceded. This also applies if a restriction of human rights is attempted to be justified with an "even higher good" (of whatever kind); for example, in the sense of the "common good" or simply because a majority of the population has so decided. They are thus in contradiction to collectivism. Since human rights are individual (highly personal) rights, they cannot be subordinated to any collective and thus escape state sovereignty. Therefore, the use of torture, for example, would remain unlawful even if it were based on a formally lawful law or even on a referendum.

This concept is realized in Germany, for example, with the eternity clause in the Basic Law. In concrete terms, this was a lesson learned from the National Socialist era, in which individual human rights violations were justified on the grounds that they served a "higher purpose" in the sense of the "national community" and were democratically legitimized. This collectivist view was also summed up by the formula "You are nothing, your people are everything!" Such semantics can also be found in most other totalitarian dictatorships.

Indivisibility

In addition to the principle of the universality of human rights, the claim of their indivisibility is also raised. Human rights must therefore always be realized in their entirety. It is not possible to implement rights to freedom if the right to food, for example, is not realized at the same time. Conversely, the violation of economic or cultural rights, such as forced displacement, the banning of languages or the deprivation of livelihoods, is usually accompanied by the violation of civil and political rights.

Legal sources

The internationally authoritative source for the existence and content of human rights is the International Bill of Human Rights of the United Nations. In addition to the 1948 Universal Declaration of Human Rights, which is, however, only a declaration adopted by the UN General Assembly and not directly binding on member states, the central human rights instruments within this corpus are:

1. the International Covenant on Civil and Political Rights, and
2. the International Covenant on Economic, Social and Cultural Rights.

Both covenants were adopted by the UN General Assembly in 1966 and entered into force ten years later after being ratified by the required number of member states. They are binding law for all member states that have ratified them (see also the section on "United Nations" below).

In addition, there are a large number of conventions that regulate the protection of individual human rights in detail, for example

1. the Convention on the Prevention and Punishment of the Crime of Genocide
2. the Geneva Refugee Convention
3. the International Convention on the Elimination of All Forms of Racial Discrimination
4. the Convention on the Elimination of All Forms of Discrimination against Women
5. the UN Convention against Torture
6. the UN Convention on the Rights of the Child
7. the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families
8. the UN Convention on the Rights of Persons with Disabilities
9. the Optional Protocol on the Right of Individual Complaints to the UN Covenant on Civil and Political Rights
10. the Optional Protocol on the Abolition of the Death Penalty to the UN Civil Covenant
11. the Optional Protocol on the Right of Individual Complaints to the UN Social Covenant

In addition, there are regional human rights conventions on the various continents. In Europe, this is the European Convention on Human Rights (ECHR) or Convention for the Protection of Human Rights and Fundamental Freedoms. It contains a catalog of fundamental rights and human rights. The convention was negotiated within the framework of the Council of Europe, signed in Rome on November 4, 1950, and entered into force on July 3, 1953. Africa (Banjul Charter) and the American double continent (Inter-American Convention on Human Rights) also each have their own regional human rights conventions.

Civil and political rights

Personal rights (basic rights)

• Right to life
• Right to physical integrity
• Prohibition of torture
• Protection against human experimentation without the patient's consent, against forced sterilization and castration, protection against corporal punishment and corporal beating, and protection against degrading or humiliating treatment (such as honor penalties), abolition of corporal punishment in education and schools

Freedom rights

• Right to liberty, property and security of person
• General freedom of action that can only be restricted by law
• Freedom from arbitrary interference with privacy (inviolability of the home, secrecy of correspondence, etc.)
• Freedom of expression
• Freedom of thought, conscience and religion
• Freedom of travel
• Freedom of assembly
• Freedom of Information
• Freedom of occupation

Judicial human rights

• Effective judicial legal protection in the event of legal infringements
• Right to a fair trial before an independent and impartial tribunal of lawful judges
• Right to be heard (audiatur et altera pars)
• No punishment without prior law (nulla poena sine lege)
• Presumption of innocence (in dubio pro reo)

Economic, cultural and social rights

In addition, the legal standards set forth in the International Covenant on Economic, Social and Cultural Rights include:

• Right to self-determination (Art. 1)
• Equal rights for men and women (Art. 3)
• Right to work and adequate remuneration (Art. 6/7)
• Right to form trade unions (Art. 8)
• The right to social security (Art. 9)
• Protection of families, pregnant women, mothers and children (Art. 10)
• Right to an adequate standard of living, including adequate food clothing and housing (Art. 11)
• Right to the enjoyment of the highest attainable standard of physical and mental health (Art. 12)
• Right to education (Art. 13)
• Right to participate in cultural life (Art. 15)

The economic, social and cultural rights from the UN Social Covenant are also referred to as "social human rights" for short. Whereas civil and political rights are now included in numerous constitutions and their violation is actionable in court, social human rights are not positively standardized in law in all member states.

Against the existence of economic, cultural and social rights, it is sometimes argued that here the traditional right of defense (status negativus) turns into a status positivus (entitlement to the granting of positive social benefits).

The characterization of civil and political rights as purely defensive rights, however, is just as erroneous as that of economic, social and cultural rights as purely guaranteeing rights. For example, guaranteeing internal and external security and an independently functioning judiciary is a positive state service. However, this is overwhelmingly seen as an actual purpose of the state and thus justified. The same applies to the enforcement of general and free elections.

At the same time, social human rights often appear as defensive rights. These include refraining from forced displacement in the course of an internal conflict as well as respecting the right of an indigenous people to retain its language, legal system or institutions.

Therefore, the so-called Limburg Principles, which were drafted in 1986 by a group of United Nations human rights experts, provide three types of obligations for each human right that the state must fulfill:

1. Duty to respect: The state is obliged to refrain from violating rights;
2. Duty to protect: The state must protect rights from encroachment by third parties;
3. Duty to guarantee: The state must ensure the full realization of human rights where this is not yet the case.

The understanding of human rights as purely defensive rights covers only the first of these three obligations. Within the United Nations human rights system, however, the more comprehensive understanding of human rights that emerges from the Limburg Principles can now be considered recognized.

In general, it should be noted that the European tradition often understands civil and political rights as the only "real" rights, whereas in countries where hunger or displacement or access to water are burning issues, economic, social and cultural rights receive more attention. The European Convention on Human Rights, for example, completely hides this area, while it plays a central role in the Organization of African Unity's Human Rights Charter. "This addresses the fundamental problem of whether individual liberty rights are effectively usable only on the basis of a collective minimum standard."