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Ge8074 Unit 1 - Notes
Ge8074 Unit 1 - Notes
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UNIT-I
Syllabus
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Meaning, origin and Development. Notion and classification of Rights - Natural, Moral and
Legal Rights. Civil and Political Rights, Economic, Social and Cultural Rights; collective /
Solidarity Rights.
Contents w .Ea
1.1
1.2
Human Rights
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Human Rights Origin and Development
1.3
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Notion and Classification of Human Rights
1.4
1.5
Natural, Moral and Legal Rights
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Civil and Political Rights, Economic, Social and Cultural Rights
Review Questions
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(1 - 1)
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Human Rights 1-2 Introduction to Human Rights
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There are a variety of human rights, including :
Civil rights (such as the rights to life, liberty and security),
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Political rights (like rights to the protection of the law and equality before the law),
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Economic rights (including rights to work, to own property and to receive equal
pay),
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Social rights (like rights to education and consenting marriages),
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Cultural rights (including the right to freely participate in their cultural community)
and
Collective rights (like the right to self-determination).
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Slavery is a violation of human rights
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Slavery, forced labor and human trafficking are violations of human rights because
these acts strip human beings of their inherent rights. In fact, the universal declaration of
human rights explicitly references slavery, stating in article 4 : No one shall be held in .ne
slavery or servitude; slavery and the slave trade shall be prohibited in all their forms.
Slavers and human traffickers grossly violate human rights since they claim
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ownership, labor and/or the humanity of another human being. The human rights most
relevant to trafficking are :
The prohibition of discrimination on the basis of race, color, sex, language, religion,
political or other opinion, national or social origin, property, birth or other status;
The right to life;
The right to liberty and security;
The right not to be submitted to slavery, servitude, forced labor or bonded labor;
The right not to be subjected to torture and/or cruel, inhuman, degrading treatment
or punishment;
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The right to be free from gendered violence;
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Many organizations and governments worldwide focus on improving the status of
women and girls. According to the International Labor Organization, 11.4 million women
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and girls are victims of forced labor in different forms – including debt bondage,
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trafficking and forced prostitution. As global leaders seek to improve the status of women
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and girls, it’s critical to focus on decreasing women and girls’ exploitation in forced labor,
trafficking and slavery.
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When women and girls are enslaved or trafficked, they do not have access to
programs aimed at women’s equality and development.
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Trafficked and enslaved women and girls oftentimes do not attend school. Many
times these women and girls are illiterate.
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Trafficked and enslaved women and girls face gross sexual violence, whether in
forced prostitution, forced marriage or during forced physical labor.
Trafficked and enslaved women and girls are subject to domestic violence.
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Trafficked and enslaved women and girls do not have access to reproductive and
maternal health. The physical and sexual abuse of their exploitation leads to many
early pregnancies, forced abortions and exposure to HIV and other diseases.
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Trafficked and enslaved women and girls do not have access to healthcare.
Trafficked and enslaved women and girls often face critical malnutrition.
Trafficked and enslaved women and girls do not have access to anti-poverty
programs, micro-loans or other economic development initiatives, leaving them
dependent on their exploiters.
declarations and resolutions. The 1993 Vienna world conference on human rights, for
example, noted that it is the duty of states to promote and protect all human rights and
fundamental freedoms, regardless of their political, economic and cultural systems.
All states have ratified at least one and 80 % of states have ratified four or more, of the
core human rights treaties, reflecting consent of states which creates legal obligations for
them and giving concrete expression to universality. Some fundamental human rights
norms enjoy universal protection by customary international law across all boundaries
and civilizations.
Human rights are inalienable. They should not be taken away, except in specific
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situations and according to due process. For example, the right to liberty may be
restricted if a person is found guilty of a crime by a court of law.
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Interdependent and indivisible
All human rights are indivisible, whether they are civil and political rights, such as the
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right to life, equality before the law and freedom of expression; economic, social and
cultural rights, such as the rights to work, social security and education or collective
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rights, such as the rights to development and self-determination, are indivisible,
interrelated and interdependent. The improvement of one right facilitates advancement of
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the others. Likewise, the deprivation of one right adversely affects the others.
against human rights abuses. The obligation to fulfil means that states must take positive
action to facilitate the enjoyment of basic human rights. At the individual level, while we
are entitled our human rights, we should also respect the human rights of others.
NHRC
The National Human Rights Commission (NHRC) established in 1993, is an
independent statutory body as per the provisions of the Protection of Human Rights Act
of 1993 which was amended in 2006.
Human Rights are an indispensable part of society and Human Rights in India are
watched by NHRC.
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NHRC acts as a watchdog of human rights in the country.
NHRC looks over the rights that are related to life, dignity, liberty and equality of
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the individual that is defined in Section 2(1) of the PHR Act.
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They are guaranteed by the Constitution of India, embodied in the international
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covenants and are enforceable by the courts of India as well.
NHRC was established in compliance with the Paris Principles of Human Rights,
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1991 which were adopted for the promotion and protection of Human Rights and
were endorsed by United Nations at its General Assembly of 1993.
Members of NHRC
Chairman of NHRC Retired Chief Justice of India
Two Members Candidates with the knowledge or practical experience in the matters
of Human Rights
Deemed Members Deemed members are chairpersons of the below national commissions :
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4. National Commission for Women
NHRC can review the provisions of the Constitution that safeguard Human Rights
and can suggest necessary restorative measures.
Research in the field of Human Rights is also promoted by the NHRC.
Human Rights awareness and literacy through different media are promoted by
NHRC in various sectors of society.
NHRC has the power to recommend suitable steps that can prevent violation of
Human Rights in India to both Central as well as State Governments.
The President of India gets an annual report from NHRC which is laid before both
the Houses of the Parliament.
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Limitations of NHRC
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It is important to know the limitations of NHRC for UPSC exam. They are mentioned
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The Recommendations made by the NHRC are not binding.
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Violation of Human rights by private parties cannot be considered under NHRC
Jurisdiction.
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NHRC doesn’t have the power to penalise the authorities that don’t implement its
recommended orders.
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3 of the NHRC members are judges which give the functioning of the Commission a
judicial touch.
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The other members that are recommended by the Selection Committee may not
necessarily be Human Rights experts. g .ne
The NHRC does not consider the following cases :
o Cases that are older than one year. t
o Cases that are anonymous, pseudonymous or vague.
o Frivolous cases.
o Cases pertaining to service matters.
The NHRC has limited jurisdiction over cases related to armed forces.
The NHRC faces other issues like excess cases/complaints, insufficient funds,
bureaucratic functioning style, etc.
Rights Commission (NHRC) takes up most of the issues around the country. Some of
them are mentioned below :
Arbitrary arrest and detention
Custodial torture
Child labour
Violence and discrimination against women and children
Extrajudicial killings
Excessive powers
Sexual violence and abuse
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LGBTQ community rights
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SC/ST, disabled people and other religious minority issues
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Labour rights and right to work
Conflict induced internal displacement
Manual scavenging syE
1.2 Human Rights Origin and Development
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The emergence of rights in political thought is generally regarded as relatively recent,
though any historical study of rights reveals how indeterminate the philosophical
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charting of the evolution of rights has been (Renteln, 1988). Human rights are considered
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the offspring of natural rights, which themselves evolved from the concept of natural law.
Natural law, which has played a dominant role in western political theory for centuries, is
that standard of higher-order morality against which all other laws are adjudged. To .ne
contest the injustice of human-made law, one was to appeal to the greater authority of
god or natural law.
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Eventually this concept of natural law evolved into natural rights; this change reflected
a shift in emphasis from society to the individual. Whereas natural law provided a basis
for curbing excessive state power over society, natural rights gave individuals the ability
to press claims against the government (Renteln, 1988).1 The modern conception of rights
can be traced back to enlightenment political philosophy and the movement, primarily in
England, France and the United States, to establish limited forms of representative
government that would respect the freedom of individual citizens.
John Locke, in his second treatise on government (1690), described a “state of nature”
prior to the creation of society in which individuals fended for themselves and looked
after their own interests. In this state, each person possessed a set of natural rights,
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including the rights to life, liberty and property. According to Locke, when individuals
came together in social groups, the main purpose of their union was to secure these rights
more effectively. Consequently, they ceded to the governments they established “only the
right to enforce these natural rights and not the rights themselves” (“Human rights :
Historical development,” n.d.).
Locke’s philosophy, known as classical liberalism, helped foster a new way of thinking
about individuals, governments and the rights that link the two. Previously, heads of
state claimed to rule by divine right, tracing their authority through genealogy to the
ultimate source to some divine being. This was as true for Roman emperors as it was
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Chinese and Japanese emperors. The theory of divine right was most forcefully asserted
during the renaissance by monarchs across Europe, most notoriously James I of England
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(1566-1625) and Louis XIV of France (1638-1715).
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Locke’s principles were adopted by the founding fathers of the United States in the
declaration of independence (1776), which stated :
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We hold these truths to be self-evident, that all men are created equal, that they are
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endowed by their creator with certain unalienable rights, that among these are life, liberty
and the pursuit of happiness. - That to secure these rights, governments are instituted
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among men, deriving their just powers from the consent of the governed.
The echoes of Locke are unmistakable in the language of the declaration of
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independence. Similarly, the language used both by Locke and by the founding fathers
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clearly foreshadows the creation of a document like the universal declaration. These
principles were further expounded and enshrined in the U.S. constitution (1787) and bill
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of rights (1789).
Natural rights theorists have asserted the existence of specific rights - most notably the
right to self-preservation (Hobbes) and the right to property (Locke). Because such
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theorists take the validity of fundamental rights to be self-evident, there has traditionally
been little tolerance for debate. One scholar notes that natural rights “seemed peculiarly
vulnerable to ethical skepticism” (Waldron 1984: 3). Nevertheless, natural rights were not
widely contested as they were asserted in a limited universe of shared Western values
(Renteln, 1988).
What, then, is a right, and how are human rights distinct from natural rights ? For
many philosophical writers, a right is synonymous with a claim. The Oxford english
dictionary defines a right as “a justifiable claim, on legal or moral grounds, to have or
obtain something or act in a certain way.” The classic definition of a human right is a right
which is universal and held by all persons : Downloaded From: www.EasyEngineering.net
A human right by definition is a universal moral right, something which all men,
everywhere, at all times ought to have, something of which no one may be deprived
without a grave affront to justice, something which is owing to every human being
simply because he is human. (Cranston 1973 : 36).
One frequently cited definition of human rights posits four necessary requirements :
First, it must be possessed by all human beings, as well as only by human beings.
Second, because it is the same right that all human beings possess, it must be possessed
equally by all human beings. Third, because human rights are possessed by all human
beings, we can rule out as possible candidates any of those rights which one might have
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in virtue of occupying any particular status or relationship… And fourth, if there are any
human rights, they have the additional characteristic of being assertable, in a manner of
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speaking, ‘against the whole world.’ (Wasserstrom 1979 : 50).
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The United Nations office of the high commissioner for human rights defines human’s
rights as :
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Rights inherent to all human beings, whatever our nationality, place of residence, sex,
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national or ethnic origin, color, religion, language or any other status. We are all equally
entitled to our human rights without discrimination. (“What are human rights ?” n.d.).
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The primary element recurring throughout each of these definitions is universality -
human rights are inalienable and fundamental rights to all persons are inherently entitled
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simply by virtue of being human. As we will soon observe, this crucial and existential
element of universality is profoundly controversial and thus quite tenuous.
The innovation of human rights in the twentieth century extended the idea ofg .ne
individual rights to include all human beings, regardless of citizenship or state affiliation.
Human rights helped reconstitute individual identity and freedom as something
transcending national borders. As the atrocities of the world wars made clear, there were
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times when the state became the citizen’s greatest enemy and outside protection was his
or her best and only hope. Before examining universality and other ideological conflicts
concerning the idea of human rights, let us turn our attention now to the various kinds of
rights that human rights encompass.
of the government in respect of actions affecting the individual and his or her autonomy
(civil rights) and confer an opportunity upon people to contribute to the determination of
laws and participate in government (political rights). Social rights require the
governments to act in a positive, interventionist manner so as to create the necessary
conditions for human life and development. The governments are expected to take active
steps toward promoting the well-being of all its members out of social solidarity. It is
believed that everyone, as a member of society, has the right to social security and is
entitled to realization of the Economic, Social and Cultural Rights (ESCR) indispensable
for his or her dignity and the free development of his or her personality.
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All human rights carry corresponding obligations that must be translated into concrete
duties to guarantee these rights. For many years, traditional human rights discourse was
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dominated by the misperception that civil and political rights require only negative duties
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while economic, social and cultural rights require positive duties. In this view, the right to
free speech is guaranteed when the state leaves people alone, whereas the state must take
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positive action to guarantee the right to health by building health clinics and providing
immunization.
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This positive versus negative dichotomy has been discredited recently in favor of the
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understanding that all human rights have both positive and negative components. It is a
matter of common sense that civil and political rights, including free speech, require the
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positive outlay of state resources in terms of providing a functioning judicial system and
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educating people about their rights. Conversely, all ESCR have negative aspects; some
states prevent people from freely exercising ESCR, for example by blocking food or
medical supplies to disfavored groups or regions. .ne
Most scholars and activists now agree that duties for all human rights - civil and
political as well as ESCR - can be divided into several discrete categories based on the
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type of duties. Although there is some variation in these typologies, they converge along
the following basic categories : The duties to respect, protect and fulfill.
The duty to respect is the negative obligation. It requires responsible parties to refrain
from acting in a way that deprives people of the guaranteed right. Regarding the right to
health, for example, a government may not deprive certain communities of access to
health care facilities. The duty to protect is the obligation concerning third parties. It
requires responsible parties to ensure that third parties do not deprive people of the
guaranteed right. For example, a government must pass and enforce laws prohibiting
private companies from releasing hazardous chemicals that impair public health. The
duty to fulfill is the positive obligation. It requires responsible parties to establish
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political, economic and social systems that provide access to the guaranteed right for all
members of society. For example, a government must provide essential health services
such as accessible primary care and clean water.
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Rights are those conditions of social life without which no man can seek in general,
to be himself at his best.” - Laski.
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“Rights are powers necessary for the fulfillment of man’s vocation as a moral
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being.” -T. H. Green.
“Rights are nothing more nor less than those social conditions which are necessary
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or favourable to the development of personality” - Beni Prasad.
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As such, rights are common and recognized claims of the people which are essential
for their development as human beings.
Rights need enforcement and only then these can be really used by the people.
These are protected and enforced by the laws of the state. It is the duty of a state to
protect the rights of the people.
All these features clearly bring out the nature of rights.
Natural rights :
Faith in natural rights is strongly expressed by several scholars. They hold that people
inherit several rights from nature. Before they came to live in society and state, they used
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to live in a state of nature. In it, they enjoyed certain natural rights, like the right to life,
right to liberty and right to property. Natural rights are parts of human nature and
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reason. However, several other scholars regard the concept of natural rights as imaginary.
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Rights are the products of social living. These can be used only in a society. Rights have
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behind them the recognition of society as common claims for development and that is
why the state protects these rights. Natural rights and legal rights are two types of rights.
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Natural rights are those that are not dependent on the laws or customs of any particular
culture or government and so are universal and inalienable (they cannot be repealed by
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human laws, though one can forfeit their enforcement through one's actions, such as by
violating someone else's rights). Legal rights are those bestowed onto a person by a given
legal system (they can be modified, repealed, and restrained by human laws).
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The concept of natural law is related to the concept of natural rights. Natural law first
appeared in ancient Greek philosophy and was referred to by Roman philosopher Cicero.
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It was subsequently alluded to in the Bible and then developed in the middle ages by
Catholic philosophers such as Albert the Great and his pupil Thomas Aquinas. During
the age of enlightenment, the concept of natural laws was used to challenge the divine
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right of kings and became an alternative justification for the establishment of a social
contract, positive law and government - and thus legal rights - in the form of classical
republicanism. Conversely, the concept of natural rights is used by others to challenge the
legitimacy of all such establishments. The idea of human rights is also closely related to
that of natural rights : Some acknowledge no difference between the two, regarding them
as synonymous, while others choose to keep the terms separate to eliminate association
with some features traditionally associated with natural rights. Natural rights, in
particular, are considered beyond the authority of any government or international body
to dismiss. The 1948 United Nations universal declaration of human rights is an
important legal instrument enshrining one conception of natural rights into international
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soft law. Natural rights were traditionally viewed as exclusively negative rights, whereas
human rights also comprise positive rights. Even on a natural rights conception of human
rights, the two terms may not be synonymous.
Moral rights :
Moral rights are those rights which are based on human consciousness. They are
backed by moral force of human mind. These are based on human sense of goodness and
justice. These are not backed by the force of law. Sense of goodness and public opinion
are the sanctions behind moral rights.
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If any person violates any moral right, no legal action can be taken against him. The
state does not enforce these rights. Its courts do not recognize these rights. Moral rights
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include rules of good conduct, courtesy and of moral behavior. These stand for moral
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perfection of the people legal rights.
Legal rights are those rights which are recognized and enforced by the state. Any
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violation of any legal right is punished by law. Law courts of the state enforce legal rights.
These rights can be enforced against individuals and also against the government. In this
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way, legal rights are different from moral rights. Legal rights are equally available to all
the citizens. All citizens enjoy legal rights without any discrimination. They can go to the
courts for getting their legal rights enforced.
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1.5 Civil and Political Rights, Economic, Social and Cultural Rights
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Legal rights are of three types :
1. Civil rights
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2. Political rights
3. Economic rights
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4. Social rights
5. Cultural rights
Civil rights movements in the United States gathered steam by 1848 with such
documents as the declaration of sentiment. Consciously modeled after the declaration of
independence, the declaration of rights and sentiments became the founding document of
the American women's movement and it was adopted at the Seneca Falls Convention,
July 19 and 20, 1848.
Worldwide, several political movements for equality before the law occurred between
approximately 1950 and 1980. These movements had a legal and constitutional aspect and
resulted in much law-making at both national and international levels. They also had an
activist side, particularly in situations where violations of rights were widespread.
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Movements with the proclaimed aim of securing observance of civil and political rights
included :
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The civil rights movement in the United States, where rights of black citizens had
been violated;
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The Northern Ireland civil rights association, formed in 1967 following failures in
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this province of the United Kingdom to respect the Roman Catholic minority's
rights; and
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Movements in many communist countries, such as the Prague Spring and
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Charter 77 in Czechoslovakia and the uprisings in hungary.
Most civil rights movements relied on the technique of civil resistance, using
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nonviolent methods to achieve their aims. In some countries, struggles for civil rights
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were accompanied, or followed, by civil unrest and even armed rebellion. While civil
rights movements over the last sixty years have resulted in an extension of civil and
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political rights, the process was long and tenuous in many countries and many of these
movements did not achieve or fully achieve their objectives. t
1.5.2 Political Rights
Political rights are those rights by virtue of which citizens get a share in the political
process. These enable them to take an active part in the political process. These rights
include right to vote, right to get elected, right to hold public office and right to criticize
and oppose the government. Political rights are really available to the people in a
democratic state.
Civil and political rights are a class of rights that protect individuals' freedom from
infringement by governments, social organizations, and private individuals. They ensure
one's entitlement to participate in the civil and political life of the society and state
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Civil rights include the ensuring of peoples' physical and mental integrity, life and
safety; protection from discrimination on grounds such as race, gender, sexual
orientation, gender identity, national origin, color, age, political affiliation, ethnicity,
religion and disability; and individual rights such as privacy and the freedom of thought,
speech, religion, press, assembly and movement.
Political rights include natural justice (procedural fairness) in law, such as the rights of
the accused, including the right to a fair trial; due process; the right to seek redress or a
legal remedy; and rights of participation in civil society and politics such as freedom of
association, the right to assemble, the right to petition, the right of self-defense, and the
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right to vote.
Civil and political rights form the original and main part of international human
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rights. They comprise the first portion of the 1948 universal declaration of human rights
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(with economic, social and cultural rights comprising the second portion). The theory of
three generations of human rights considers this group of rights to be "first-generation
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rights" and the theory of rights considers them to be generally negative rights.
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Economic rights are those rights which provide economic security to the people. These
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enable all citizens to make proper use of their civil and political rights. The basic needs of
every person are related to his food, clothing, shelter, medical treatment etc. Without the
fulfillment of these no person can really enjoy his civil and political rights. It is therefore.ne
essential, that every person must get the right to work, right to adequate wages, right to
leisure and rest and right to social security in case of illness, physical disability and old
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age. Legal rights are, clearly, rights which exist under the rules of legal systems or by
virtue of decisions of suitably authoritative bodies within them. They raise a number of
different philosophical issues. (1) Whether legal rights are conceptually related to other
types of rights, principally moral rights; (2) What the analysis of the concept of a legal
right is; (3) What kinds of entities can be legal right-holders; (4) Whether there any kinds
of rights which are exclusive to or at least have much greater importance in, legal
systems, as opposed to morality; (5) What rights legal systems ought to create or
recognise. Issue (5) is primarily one of moral and political philosophy, and is not different
in general principle from the issue of what duties, permissions, powers, etc, legal systems
ought to create or recognise. It will not, therefore, be addressed here.
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Socio-economic human rights, such as the right to education, right to housing, right to
an adequate standard of living, right to health, victims' rights and the right to science and
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culture. Economic, social and cultural rights are recognised and protected in international
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and regional human rights instruments. Member states have a legal obligation to respect,
protect and fulfil economic, social and cultural rights and are expected to take
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"progressive action" towards their fulfilment.
The universal declaration on human rights recognizes a number of economic, social
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and cultural rights and the International Covenant on Economic, Social and Cultural
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Rights (ICESCR) is the primary international legal source of economic, social and cultural
rights. The convention on the rights of the child and the convention on the elimination of
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all forms of discrimination against women recognizes and protects many of the economic,
social and cultural rights recognised in the ICESCR in relation to children and women.
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The convention on the elimination of all forms of racial discrimination prohibits
discrimination on the basis of racial or ethnic origin in relation to a number of economic, .ne
social and cultural rights. The convention on the rights of persons with disabilities also
prohibits all discrimination on the basis of the disability including refusal of the
reasonable accommodation relating to full enjoyment of economic, social and cultural
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rights.
Economic, social and cultural rights include the human right to work, the right to an
adequate standard of living, including food, clothing and housing, the right to physical
and mental health, the right to social security, the right to a healthy environment and the
right to education.
Economic, social and cultural rights are part of the body of human rights law that
developed in the aftermath of World War II. Human rights law includes all economic and
social rights, as well as civil and political rights like the right to free speech and the right
to a fair trial. These rights are deeply intertwined : For example, the right to speak freely
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means little without a basic education, the right to vote means little if you are suffering
from starvation. Similarly, the right to work means little if you are not allowed to meet
and assemble in groups to discuss work conditions.
The most important human rights law is in the international bill of human rights,
which includes the universal declaration of human rights (1948), the international
covenant on civil and political rights, the international covenant on economic, social and
cultural rights. Economic and social rights are also included in numerous other human
rights legal instruments. Among the most important are :
Convention on the Rights of the Child (CRC).
Convention on the Elimination of Discrimination Against Women (CEDAW).
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Convention on the Elimination of All Forms of Racial Discrimination (CERD).
Vienna world conference on human rights declaration and plan of action.
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Conventions of the international labor organization.
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The optional protocol to the international covenant on economic, social and cultural
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rights, yet to come into force.
CESR has prepared a guide to the legal framework of economic, social and cultural
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rights that elaborates on how those rights exist in international law.
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recognize that human beings deserve to live in freedom, justice, dignity and economic
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security. The international bill of rights grew out of these traditions and calls for all
governments to make sure their citizens have human rights - civil, political, social,
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cultural and economic. Referring to economic, social and cultural issues as "rights" uses
the legal framework developed under international law and gives individuals legitimate
claims against state and non-state actors for protection and guarantees.
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During the Cold War and within trickle-down economic theory, economic, social and
cultural rights were frequently mislabeled as "benefits," meaning individuals had no basic
claims to things like food and shelter. After the covenant came into force in 1976,
jurisprudence around economic and social rights began to develop and great progress
followed the formation of the United Nations committee on economic, social and cultural
rights.
Economic and social rights require governments and other powerful actors to ensure
that people have access to basic needs, and that people have a voice in decisions affecting
their well-being. Poverty and injustice are neither inevitable nor natural, but arise from
deliberate decisions and policies and the human rights legal framework provides a way to
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hold public officials accountable for development policies and priorities.
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Respect - The obligation to respect requires governments to refrain from interfering
directly or indirectly with the enjoyment of economic, social and cultural rights.
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Protect - The obligation to protect requires governments to prevent third parties,
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such as corporations, from interfering in any way with the enjoyment of economic,
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social and cultural rights.
Fulfill - The obligation to fulfill requires governments to adopt the necessary
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measures to achieve the full realization of economic, social and cultural rights.
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enforce. However, this does not mean that non-state actors are free to violate people's
human rights. There are three main ways to apply human rights standards to non-state
actors.
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First, governments have the primary responsibility to protect human rights, .ne
including from violations by non-state actors.
Second, individuals may enforce their basic rights through judicial action. Finally,
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non-state actors are bound to respect human rights standards through the universal
protection of human dignity.
on the international covenant on economic, social and cultural rights, prepared by Jeff
King for CESR and the Sri Lankan-based law and society trust.
For many years, there has been no way for individuals to bring forward violations of
ESCR to the committee on economic, social and cultural rights. However, governments at
the United Nations agreed in 2008 to allow the possibility of allowing individual
complaints through the adoption of an optional protocol to the ICESCR.
For those countries that haven't ratified the ICESCR, there are other international
venues that apply political pressure. For example, a country may be a party to the CRC or
CEDAW, both of which include ESCR. Larger bodies, like the commission on human
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rights, can also be used to apply political pressure. Additionally, petitions in regional
human rights commissions can also be effective in highlighting an issue and seeking
remedy.
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At the domestic level, there are political and legal remedies for many ESC violations.
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Although these remedies are still far from comprehensive, they do demonstrate that
economic and social rights are fundamentally justiciable. For example, a core part of
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every ESCR is a prohibition on discrimination, whether for employment, housing or food.
Anti-discrimination laws exist in most countries and are fully enforceable in a court of
law.
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Justifiability of economic, social and cultural rights
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Opponents of ESCR, regrettably including some in the human rights field, argue that
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ESCR are not judicially enforceable and that they are too vague to monitor effectively. Yet
most sovereign states have enshrined ESCR in their constitutions, and there are numerous .ne
examples of courts applying domestic and international law to protect ESCR. Vagueness
has also not prevented international development agencies from producing immense
volumes of research on global social and economic conditions. These include
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standardized methodologies for comparing conditions in different countries and regions,
the UNDP's human development index and gender-related indices, UNICEF's rate of
progress measurements, and the World Bank's world development reports, to name a
few.
Historical neglect of ESCR cannot be attributed to methodological obstacles. While
there is always a need for additional indicators to measure compliance in specific rights, it
must be emphasized that the definition of all rights, even freedom from torture, changes
and expands over time through concrete practice. The main obstacle to realizing ESCR
remains a lack of political will and commitment on the part of states, international
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institutions and NGOs whose responsibility it is to respect, protect and promote these
rights for the benefit of all human beings.
The following list provides just a few examples of ESCR violations that are already
being tried in courts around the world :
Forcible evictions.
Terminating an employee without cause.
Deliberate poisoning of a water supply.
Discrimination in access to medical care, work, housing, education etc.
Banning unions.
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Depriving children of adequate food and water.
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Failing to provide any primary level education.
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Failing to provide basic health care facilities.
Educational institutions in such poor condition that they are a risk to safety.
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Housing in such poor condition that it is a risk to safety.
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over 60 years of its existence, new treaties and documents have clarified and further
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developed some of the basic concepts that were laid down in that original document.
These additions have been a result of a number of factors : They have partly come
about as a response to changing ideas about human dignity and partly as a result of new .ne
threats and opportunities emerging. In the case of the specific new category of rights that
have been proposed as third generation rights, these have been the consequence of a
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deeper understanding of the different types of obstacles that may stand in the way of
realising the first and second generation rights.
The idea at the basis of the third generation of rights is that of solidarity; and the rights
embrace collective rights of society or peoples, such as the right to sustainable
development, to peace or to a healthy environment. In much of the world, conditions
such as extreme poverty, war, ecological and natural disasters have meant that there has
been only very limited progress in respect of human rights. For that reason, many people
have felt that the recognition of a new category of human rights is necessary : These rights
would ensure the appropriate conditions for societies, particularly in the developing
world, to be able to provide the first and second generation rights that have already been
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The specific rights that are most commonly included within the category of third
generation rights are the rights to development, to peace, to a healthy environment, to
share in the exploitation of the common heritage of mankind, to communication and
humanitarian assistance.
There has, however, been some debate concerning this category of rights. Some
experts object to the idea of these rights because they are ‘collective rights', in the sense of
being held by communities or even whole states. They argue that human rights can only
be held by individuals. The argument is more than merely verbal, because some people
fear such a change in terminology could provide a "justification" for certain repressive
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regimes to deny (individual) human rights in the name of these collective human rights;
for example, severely curtailing civil rights in order to secure "economic development".
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There is another concern which is sometimes expressed: since it is not the state but the
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international community that is meant to safeguard third generation rights, accountability
is impossible to guarantee. Who or what, is supposed to be responsible for making sure
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that there is peace in the Caucasus or the Middle East or that the Amazonian rainforest is
not destroyed and that appropriate measures are taken against climate change ?
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Nevertheless, whatever we decide to call them, there is general agreement that these
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areas require further exploration and further attention from the international community.
Some collective rights have already been recognised, in particular under the African
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charter on human and peoples' rights and the declaration on the rights of indigenous
development was codified in a 1986 UN general assembly declaration. The right tog
Peoples. The UDHR itself includes the right to self-determination and a human right to
development is an inalienable human right by virtue of which every human person and .ne
all peoples are entitled to participate in, contribute to and enjoy economic, social, cultural
and political development, in which all human rights and fundamental freedoms can be
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fully realised. Article 1, UN declaration on the right to development.
Such politicians therefore suggest that second generation rights are different to first
generation civil and political rights. The first claim often made is that social and economic
rights are neither realistic nor realisable, at least in the short term and that we should
move towards them only gradually. This is the approach that has been taken in the
ICESCR : Governments only need to show that they are taking measures towards meeting
these aims at some point in the future. The claim, however, is certainly open to dispute
and appears to be based more on political considerations than anything else. Many
independent studies show that there are sufficient resources in the world and sufficient
expertise, to ensure that everyone's basic needs could be met if a concerted effort was
made.
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A second claim is that there is a fundamental theoretical difference between first and
second generation rights : That the first type of rights require governments only to refrain
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from certain activities (these are so-called "negative" rights); while the second require
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positive intervention from governments (these are "positive" rights). The argument states
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that it is not realistic to expect governments to take positive steps, for example to provide
food for everyone and that they are therefore not obliged to do so. Without any obligation
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on anyone's part, there can be no right in any meaningful sense of the word.
However, there are two basic misunderstandings in this line of reasoning.
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Firstly, civil and political rights are by no means purely negative. In order, for
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example, for a government to guarantee freedom from torture, it is not enough just for
government officials to refrain from torturing people! Genuine freedom in this area often
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besides. The same goes for securing the right to vote and for all other civil and political
rights. In other words, these rights require positive action by the government in addition
to refraining from negative action.
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Secondly, social and economic rights, just like civil and political rights, also require
that governments refrain from certain activities : For example, from giving large tax
breaks to companies or encouraging development in regions that already possess a
relative advantage or imposing trade tariffs which penalise developing countries - and so
on.
derogation is permitted : Examples include the prohibitions against genocide, slavery and
systematic racial discrimination. Some rights are ‘absolute' in that they cannot be subject
to derogation or limitation in their manifestation, for example the prohibition on torture.
‘Minimum core' obligations have been identified in relation to certain economic and social
rights, for example the provision of essential primary health care, basic shelter and
education. Others may suggest that collective rights are core, in that they establish a
framework of protection within which individual rights can then be realised. There is no
clear consensus or single theory on this and most observers would reinforce the
importance of emphasizing the universality, indivisibility and interdependence of rights.
Irrespective of the question of proliferation, however, science sometimes triggers the
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need for the application of human rights norms to new challenges and these will be
discussed below.
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The advance of science
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Another area where new rights are being acknowledged is in health and medical
science. New scientific discoveries have opened up a number of questions relating to
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ethics and human rights, in particular in the fields of genetic engineering and concerning
the transplant of organs and tissues. Questions on the very nature of life have had to be
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addressed as a result of technical advances in each of these fields.
The council of Europe responded to some of these challenges with a new international
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treaty : The 1999 convention for the protection of human rights and dignity of the human
being with regard to the application of biology and medicine (from now on, referred to as
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the Oviedo convention). This convention has been signed by 30 member states of the
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Summary of most relevant articles :
Any form of discrimination against a person on grounds of their genetic heritage is
prohibited.
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Predictive genetic tests can be carried out only for health purposes and not, for
example, in order to determine the physical characteristics that a child will develop
in later life.
Intervention which aims to modify the human genome may only be undertaken for
preventative, diagnostic or therapeutic purposes.
Medically assisted procreation is not permitted where this is designed to determine
a future child's sex.
Removal of organs or tissue from a living person for transplantation purposes can
be carried out solely for the therapeutic benefit of the recipient. (Article 21 -
Prohibition of financial gain.)
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Q.1 Define human rights.
PART A
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Ans. : Human rights are defined as all those rights which are essential for the protection
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and maintenance of dignity of individuals and create conditions in which every human
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being can develop his personality to the fullest extent may be termed as human rights.
Q.2 Explain the classification of human rights.
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Ans. : Human rights can be classified and organized in a number of different ways, at an
international level the most common categorisation of human rights has been to split them
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into civil and political rights, and economic, social and cultural rights.
Q.3 List the types of fundamental rights.
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Ans. : 1. The right to due process. 2. The right to freedom of speech. 3. The right to freedom
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of religion. 4. The right to privacy. 5. The right to marry. 6. The right to interstate and
intrastate travel. The right to equality. 7. The right to assemble.
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Q.4 What is mean by civil and political rights ?
Ans. : Civil and political rights are a class of rights that protect individuals' freedom from
infringement by governments, social organizations, and private individuals. They ensure
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one's entitlement to participate in the civil and political life of the society and state without
discrimination or repression.
Q.5 What is mean by economic, social and cultural rights ?
Ans. : Economic, social and cultural rights are socio-economic human rights, such as the
right to education, right to housing, right to adequate standard of living, right to health,
victims' rights and the right to science and culture.
Q.6 What is collective rights ?
Ans. : Collective rights are a type of human rights, which unlike traditional rights, are not
vested in a single individual but belongs to all people so that all of them can collective
enjoyed. Collective rights are also called third generation rights, solidarity rights or new
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human rights. There are three main ways to apply human rights standards to non-state
actors.
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Q.9 Define social and cultural rights.
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Ans. : Socio-economic human rights, such as the right to education, right to housing, right
to an adequate standard of living, right to health, victims' rights and the right to science
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and culture. Economic, social and cultural rights are recognised and protected in
international and regional human rights instruments.
Q.10 List variety of human rights.
Ans. : ngi
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Civil rights (such as the rights to life, liberty and security),
Political rights (like rights to the protection of the law and equality before the law),
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Economic rights (including rights to work, to own property and to receive equal
pay),
Social rights (like rights to education and consenting marriages), g .ne
Cultural rights (including the right to freely participate in their cultural community),
and
Collective rights (like the right to self-determination).
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Review Questions
PART B
1. Explain civil and political rights. (Refer sections 1.5.1 and 1.5.2)
2. Explain the functions of NHRC. (Refer section 1.1)
3. Explain the composition of NHRC. (Refer section 1.1)
4. Explain about the origin and development of human rights. (Refer section 1.2)
5. Explain in detail about the classification of human rights. (Refer section 1.4)
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