Topic 1: Conceptual Approach

Human rights are the basic rights all people have simply because of being humans (right to live
freely, to speak your mind, to have the same rights, etc.), from birth until death. They must be
applied everywhere for everyone.
Anciently, natural law was used in order to determine the legislation a population was subject
to. However, the problems of natural language in law were:
- Ambiguity: diversity of meanings of the term (meaning of “human”, “rights”, etc.).
- Vagueness: lack of certainty in the meaning of the term.
- Emotivity: terms that cause reactions of acceptance or rejection.
From an ethical point of view, they are linked to human dignity to prevent persons to use
other persons as a mean, but from a legal one, rights should be included in the highest
standards of the legal system.
They can never be taken away, but they can be restricted. The basic rights are based on
dignity, fairness, equality, respect and independence, and they are protected by law.
Universal human rights are expressed in treaties, customs, general principles and other
sources of IL. Int’l HHRRs law lays down obligations of Governments to promote and protect it.

Characteristics:
- Universal: they are not a monopoly of any privileged class of people. Dignity, divinity
and equality are inherent in human nature. It has been reiterated in numerous int’l
HHRRs conventions (e.g., 1993 Vienna World Conference on HHRRs). Almost all
countries have ratified four or more core HHRRs treaties, giving concrete expression to
universality.
- Inalienable: you have human rights from the moment of birth and they cannot be
taken away, except for concrete situations (e.g., when you break the law you may go
to prison).
- Essential and necessary: welfare of an individual is impossible without them, as they
provide suitable conditions for material and moral upliftment of the people. Human
life has a purpose, so HHRRs are applied to those essential conditions for its fulfilment.
- In connection with human dignity: treating someone with dignity irrespective of their
race, gender, etc., is concerned with human dignity.
- Interdependent and indivisible : the improvement of one facilitates advancement of
the others, and the deprivation of one adversely affects the others.
- Equal and non-discriminatory : it prohibits discrimination on the basis of a list of non-
exhaustive categories (i.e., sex, race, colour, etc.). It is complemented by the principle
of equality (Article 1 of the Universal Declaration of HHRRs).
- HHRRs are never absolute: each right has limitations. HHRRs are limited powers or
claims which contribute to the common good.
- Dynamic: they depend on the socio-eco-cultural and political context of every country.
Simultaneously, judges also have to interpret laws in accordance with changes in social
values.
- They limit State powers: Governments have obligations to protect and enhance rights
and freedoms. The obligation to respect refrains the State to interfere with or curtail
the enjoyment of HHRRs, as they imply that everyone has legitimate claims upon their
society for certain freedoms and benefits.

According to the spheres of life activity, there are three types of rights:
- Civil/Individual rights: they are applied to every people who live in a determined
territory. They are the basis for the legal status of a person, have natural
 Topic 1: Conceptual Approach

characteristics and belong to everyone with no limitations. The State must fight against
violations of these rights (e.g., right to life, right to personal security, freedom of
conscience, freedom of marriage, etc.).
- Political/Public rights: they express the possibility of every person to participate in the
political arena, in the formation and realization of State power. They strengthen the
connection between the citizen, the society and the State (e.g., right to gather,
freedom of speech, freedom to join political parties, freedom to vote, etc.).
- Social, economic and cultural rights : social and economic rights are aimed at the
provision of welfare, the quality of a person’s life, self-development and social stability
(e.g., right to private property, right to work, right to associate, freedom of
entrepreneurship, etc.). Cultural rights guarantee spiritual development of a human
and help each individual to be spiritual or cultural (e.g., right to social values, right to
participate in cultural life, freedom of religion, the right of feeling identified with a
nationality, etc.).

According to the time of appearance, there are three generations:

1. First generation (end of the XVIII century) : they belong to every human from the
moment of birth and the State must not limit them. It comes from individual and
political rights. They refer to the right to life, the right to freedom and security,
freedom of speech…
o Declaration of Rights of Virginia of 1776.
o American Bill of rights of 1789-1791.
o French Declaration of Rights of Human and Citizen of 1789.
2. Second generation (middle of the XX century) : they fight against social and economic
inequality. They reflected the ideas of the assignment of socio-economic and cultural
conditions of living of a person in labour, employment, welfare and social security, so
they depended on the countries’ economy (e.g., right to work, right to leisure, etc.).
o Constitution of the United Mexican States of 1917.
o German Weimar Constitution of 1919.
o Constitution of the Spanish Republic of 1913.
3. Third generation (second half of the XX century) : they are the result of national
sovereignty and decolonization. They are called rights of solidarity (i.e., development,
proper environment, right to self-determination, etc.). These rights led to the
interrelation and interdependence of individual and collective rights. In this
generation, rights for specific groups appeared (i.e., women, aged people, disabled
people, etc.). They were influenced by globalization and scientific and technological
progress (i.e., medicine, genetics, cloning and transplantation).