HUMAN RIGHTS Medical humanities II 2014-2015 Prof. Marija Definis-Gojanović, MD, Ph.D. Human rights • "fundamental rights to which a person is inherently entitled simply because she or he is a human being." - universal (applicable everywhere), - egalitarian (the same for everyone) - natural / legal - in national / international law History of concept • In 539 B.C., the armies of Cyrus the Great, the first king of ancient Persia: - conquered the city of Babylonm - he freed the slaves, declared that all people had the right to choose their own religion, and established racial equality, - recorded these on a baked-clay cylinder in the Akkadian language - has now been recognized as the world’s first charter of human rights. Magna Carta (Magna Carta Libertatum or The Great Charter of the Liberties of England) • not charter of human rights, rather the foundation and constituted a form of limited political and legal agreement to address specific political circumstances • originally issued in Latin in 1215, translated into French in 1219, and reissued later in the 13th century in modified versions Magna Carta (Magna Carta Libertatum or The Great Charter of the Liberties of England) • required King John of England to proclaim certain liberties (e.g., the right of the church to be free from governmental interference, the rights of all free citizens to own and inherit property and to be protected from excessive taxes) • led to the rule of constitutional law in the English speaking world • was important in the colonization of American colonies and used as England's legal system Statute of Kalisz • One of the oldest records of human rights (1264) • Gave privileges to the Jewish minority in the Kingdom of Poland such as protection from discrimination and hate speech. • The basis of most modern legal interpretations of human rights: recent European history The Twelve Articles (1525) • were part of the peasants' demands of the Swabian League during the German Peasants War • considered to be the first record of human rights in Europe Petition of Right, 1628 • English Parliament sent to Charles I • a statement of civil liberties • was based upon earlier statutes and charters and asserted four principles: (1) No taxes may be levied without consent of Parliament, (2) No subject may be imprisoned without cause shown (reaffirmation of the right of habeas corpus), (3) No soldiers may be quartered upon the citizenry, and (4) Martial law may not be used in time of peace. History of concept • Two major revolutions occurred during the 18th century: - in the United States (1776), leading to the adoption of the United States Declaration of Independence and - in France (1789), leading to the adoption of the French Declaration of the Rights of Man and of the Citizen, both of which established certain legal rights. United States Declaration of Independence, 1776 • Its primary author, Thomas Jefferson, wrote the Declaration as a formal explanation of why Congress had voted to declare independence from Great Britain, and as a statement announcing that the thirteen American Colonies were no longer a part of the British Empire. • Philosophically, the Declaration stressed two themes: individual rights and the right of revolution. The Constitution of the United States of America (1787) and Bill of Rights (1791) • Constitution of the United States of America is the fundamental law of the US federal system of government and the landmark document of the Western world. It is the oldest written national constitution in use. • The first ten amendments to the Constitution—the Bill of Rights—limited the powers of the federal government and protecting the rights of all citizens, residents and visitors in American territory. Declaration of the Rights of Man and of the Citizen (1789) • 6 weeks after the storming of the Bastille, and 3 weeks after the abolition of feudalism, the Declaration was adopted by the National Constituent Assembly as the first step toward writing a constitution for the Republic of France. • proclaims that all citizens are to be guaranteed the rights of “liberty, property, security, and resistance to oppression.” “...the exercise of the natural rights of each man has only those borders which assure other members of the society the enjoyment of these same rights.” The First Geneva Convention (1864) • provided for care to wounded soldiers • sixteen European countries and several American states attended a conference in Geneva, at the invitation of the Swiss Federal Council • main principles provided for the obligation to extend care without discrimination to wounded and sick military personnel and respect for and marking of medical personnel transports and equipment with the distinctive sign of the red cross on a white background History of concept • In the 19th century, human rights became a central concern over the issue of slavery • The abolition of slavery was achieved in the British Empire by the Slave Trade Act 1807 and the Slavery Abolition Act 1833 History of concept • In the United States, all the northern states had abolished the institution of slavery between 1777 and 1804 • one of the reasons for the southern states‘ secession and the American Civil War. During the period immediately following the war, several amendments to the United States Constitution were made: 13th banning slavery, 14th - assuring full citizenship and civil rights to all people born in the United States, and 15th – guaranteeingAfrican Americans the right to vote. History of concept • 20th century in Europe and North America: - labour unions brought about laws granting workers the right to strike, establishing minimum work conditions and forbidding or regulating child labor - women's rights movement succeeded in gaining for many women the right to vote History of concept - national liberation movements in many countries succeeded in driving out colonial powers - one of the most influential was Mahatma Gandhi’s movement to free his native India from British rule - Movements by long-oppressed racial and religious minorities succeeded in many parts of the world, among them the African American Civil Rights Movement. History of concept • The establishment of the International Committee of the Red Cross, the 1864 Lieber Code and the first of the Geneva Conventions in 1864 laid the foundations of International humanitarian law, to be further developed following the two World wars. History of concept • The League of Nations, 1919 - negotiations over the Treaty of Versailles following the end of World War I (goals: disarmament, preventing war through collective security, settling disputes between countries through negotiation and diplomacy, and improving global welfare...) • At the 1945 Yalta Conference, the Allied Powers agreed to create a new body to supplant the League's role; this was to be the United Nations.. Classification 1. Civil and political rights /1st generation/ - Universal Declaration of Human rights (UDHR, art. 3-21) - International Covenant on Civil and Political Rights (ICCPR) 2. Economic, social and cultural rights /2nd generation/ - Universal Declaration of Human rights (UDHR, art. 22-28) - International Covenant on Economic, Social and Cultural rights (ICESCR) 3. Right to piece, clean environment... /3rd generation/ The UDHR included both economic, social and cultural rights and civil and political rights because it was based on the principle that the different rights could only successfully exist in combination. All human rights are universal, indivisible and interdependent and related. The international community must treat human rights globally in a fair and equal manner, on the same footing, and with the same emphasis. Economic, social and cultural rights are argued to be: • positive, meaning that they require active provision • resource-intensive, meaning that they are expensive and difficult to provide • progressive, meaning that they will take significant time to implement • vague, meaning they cannot be quantitatively measured • ideologically divisive/political, meaning that there is no consensus on what should and shouldn't be provided as a right • socialist • non-justifiable, meaning that their provision, or the breach of them, cannot be judged in a court of law • aspirations or goals, as opposed to real 'legal' rights Similarly civil and political rights are categorized as: - negative, meaning the state can protect them simply by taking no action - cost-free - immediate, meaning they can be immediately provided if the state decides to - precise, meaning their provision is easy to judge and measure - non-ideological/non-political - justifiable - real 'legal' rights In the aftermath of the atrocities of World War II, there was increased concern for the social and legal protection of human rights as fundamental freedoms. United Nations Charter provided a basis for a comprehensive system of international law and practice for the protection of human rights. Since then, international human rights law has been characterized by a linked system of conventions, treaties, organizations, and political bodies, rather than any single entity or set of laws. International protection United Nations Charter Article 1(3) states that one of the purposes of the UN is: "to achieve international cooperation 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". International protection Universal Declaration of Human Rights - was adopted by the United Nations General Assembly in 1948 - was a non-binding resolution; now considered by some to have acquired the force of international customary law which may be invoked in appropriate circumstances by national and other judiciaries Articles 1 and 2 are the foundation blocks: their principles of dignity, liberty, equality and brotherhood. Articles 3–11: rights of the individual, such as the right to life and the prohibition of slavery. Articles 12–17: rights of the individual in civil and political society. Articles 18–21: spiritual, public and political freedoms such as freedom of religion and freedom of association. Articles 22–27: social, economic and cultural rights. Five categories of Human Rights: Civil Political Economic Social Cultural Civil and political rights are a class of rights that protect individuals' freedom from infringement by governments, social organizations, and private individuals, and which ensure one's ability to participate in the civil and political life of the society and state without discrimination or repression. Civil rights include the ensuring of peoples' physical and mental integrity, life and safety; protection from discrimination and individual rights such as privacy, the freedoms of thought and conscience, speech and expression, religion, the 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 right to vote. Economic, social and cultural rights are socioeconomic human rights, such as the right to education, right to housing, right to adequate standard of living, right to health and the right to science and culture. Member states have a legal obligation to respect, protect and fulfil economic, social and cultural rights and are expected to take "progressive action" towards their fulfilment. International treaties - generally known as human rights instruments - some of the most significant (with ICCPR and ICESCR) are: Convention on the Elimination of All Forms of Racial Discrimination Convention on the Elimination of All Forms of Discrimination Against Women United Nations Convention Against Torture Convention on the Rights of the Child Convention on the Rights of Persons with Disabilities International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families Customary international law may protect some human rights, such as the prohibition of torture, genocide and slavery and the principle of non-discrimination International humanitarian law - regulates the conduct of armed conflict (jus in bello) - branch of international law which seeks to limit the effects of armed conflict by protecting persons who are not or no longer participating in hostilities, and by restricting and regulating the means and methods of warfare available to combatants - includes the Geneva Conventions and the Hague Conventions, as well as subsequent treaties, case law, and customary international law. The Geneva Conventions - came into being between 1864 and 1949 as a result of efforts by Henry Dunant, the founder of the International Committee of the Red Cross - 1859 - aftermath of the Battle of Solferino - he was horrified by the sight of thousands of wounded soldiers lying helpless and abandoned with no one to care for them - experience led him to suggest the setting up of voluntary relief societies who could be trained, during peacetime, to care for the wounded in time of war - called for an international agreement to be drawn up to protect the wounded, and those who looked after them, from further attack. The Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field was adopted in 1864, revised and replaced by the 1906 version, the 1929 version, and later the First Geneva Convention of 1949. The Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea was adopted in 1906, revised and replaced by the Second Geneva Convention of 1949. The Geneva Convention relative to Treatment of Prisoners of War was adopted in 1929, revised and replaced by the Third Geneva Convention of 1949. The Fourth Geneva Convention relative to the Protection of Civilian Persons in Time of War was adopted in 1949. Three additional amendment protocols to the Geneva Convention: Protocol I (1977): Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts. As of 12 January 2007 it had been ratified by 167 countries. Protocol II (1977): Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts. As of 12 January 2007 it had been ratified by 163 countries. Protocol III (2005): Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Adoption of an Additional Distinctive Emblem. As of June 2007 it had been ratified by seventeen countries and signed but not yet ratified by an additional 68. The Geneva Conventions establish the standards of international law for the humanitarian treatment of the victims of war. The articles of the Fourth Geneva Convention (1949) extensively defined the basic, wartime rights of prisoners (civil and military); established protections for the wounded; and established protections for the civilians in and around a war zone. Two Protocols were adopted in 1977 that extended the terms of the 1949 Conventions with additional protections. In 2005, a third brief Protocol was added establishing an additional protective sign for medical services, the Red Crystal, as an alternative to the ubiquitous Red Cross and Red Crescent emblems, for those countries that find them objectionable. Nations who are party to these treaties must enact and enforce legislation penalizing any of these crimes, are obligated to search for persons alleged to commit these crimes, or ordered them to be committed, and to bring them to trial. The principle of universal jurisdiction also applies to the enforcement of grave breaches when the UN Security Council asserts its authority and jurisdiction from the UN Charter to apply universal jurisdiction. The UNSC did this via the International Criminal Court. Summary of main points about Geneva Conventions The First extends the Conventions, taking into consideration modern means of warfare and transport and aiming to give further protection to civilians The Second provides a code of minimum protection for the combatants and the civilian population during civil wars. They embody the main idea which led to the founding of the Red Cross The Forth covers all individuals "who do not belong to the armed forces, take no part in the hostilities and find themselves in the hands of the Enemy or an Occupying Power" The Third covers members of the armed forces who fall into enemy hands. They are in the power of the enemy State, not of the individuals or troops who have captured them United Nations system Under the mandate of the UN charter, UN, as an intergovernmental body, seeks to apply international jurisdiction for universal human-rights legislation. Within the UN machinery, human-rights issues are primarily the concern of the United Nations Security Council and the United Nations Human Rights Council, and there are numerous committees within the UN with responsibilities for safeguarding different human-rights treaties. The most senior body of the UN in the sphere of human rights is the Office of the High Commissioner for Human Rights. European Convention on Human Rights Convention consists of three parts. The main rights and freedoms are contained in Section I, which consists of Articles 2 to 18. Section II (Articles 19 to 51) sets up the Court and its rules of operation. Section III contains various concluding provisions. Many of the Articles in Section I are structured in two paragraphs: the first sets out a basic right or freedom (such as Article 2(1) – the right to life) but the second contains various exclusions, exceptions or limitations on the basic right (such as Article 2(2) – which excepts certain uses of force leading to death).