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Published : April 25, 2017 | Author : MD SAHABUDDIN MONDAL
Category : Human Rights laws | Total Views : 1637 | Rating :

  
MD SAHABUDDIN MONDAL
Final year student of MAB Institute of Juridical Science.
 

Are Human Rights Eligible To Be Regarded As Basic Rights or Natural Rights

Human rights are moral principles or norms, which describe certain standards of human behavior, and are regularly protected as legal rights in municipal and international law. They are commonly understood as inalienable fundamental rights "to which a person is inherently entitled simply because she or he is a human being," and which are "inherent in all human beings" regardless of their nation, location, language, religion, ethnic origin or any other status. They are applicable everywhere and at every time in the sense of being universal, and they are egalitarian in the sense of being the same for everyone. They require empathy and the rule of law and impose an obligation on persons to respect the human rights of others. They should not be taken away except as a result of due process based on specific circumstances; for example, human rights may include freedom from unlawful imprisonment, torture, and execution.

The doctrine of human rights has been highly influential within international law, global and regional institutions. Actions by states and non-governmental organizations form a basis of public policy worldwide. The idea of human rights suggests that "if the public discourse of peacetime global society can be said to have a common moral language, it is that of human rights." The strong claims made by the doctrine of human rights continue to provoke considerable skepticism and debates about the content, nature and justifications of human rights to this day. The precise meaning of the term right is controversial and is the subject of continued philosophical debate; while there is consensus that human rights encompasses a wide variety of rights such as the right to a fair trial, protection against enslavement, prohibition of genocide, free speech, or a right to education, there is disagreement about which of these particular rights should be included within the general framework of human rights; some thinkers suggest that human rights should be a minimum requirement to avoid the worst-case abuses, while others see it as a higher standard.

Many of the basic ideas that animated the human rights movement developed in the aftermath of the Second World War and the atrocities of The Holocaust, culminating in the adoption of the Universal Declaration of Human Rights in Paris by the United Nations General Assembly in 1948. Ancient peoples did not have the same modern-day conception of universal human rights. The true forerunner of human rights discourse was the concept of natural rights which appeared as part of the medieval natural law tradition that became prominent during the European Enlightenment with such philosophers as John Locke, Francis Hutcheson, and Jean-Jacques Burlamaqui, and which featured prominently in the political discourse of the American Revolution and the French Revolution. From this foundation, the modern human rights arguments emerged over the latter half of the twentieth century, possibly as a reaction to slavery, torture, genocide, and war crimes, as a realization of inherent human vulnerability and as being a precondition for the possibility of a just society.

Features of Human Rights:-

Human rights are rights inherent to all human beings, whatever our nationality, place of residence, sex, national or ethnic origin, colour, religion, language, or any other status. We are all equally entitled to our human rights without discrimination. These rights are all interrelated, interdependent and indivisible.

Universal human rights are often expressed and guaranteed by law, in the forms of treaties, customary international law , general principles and other sources of international law. International human rights law lays down obligations of Governments to act in certain ways or to refrain from certain acts, in order to promote and protect human rights and fundamental freedoms of individuals or groups.

Universal and inalienable
The principle of universality of human rights is the cornerstone of international human rights law. This principle, as first emphasized in the Universal Declaration on Human Rights in 1948, has been reiterated in numerous international human rights conventions, 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 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.

Interdependent and indivisible
All human rights are indivisible, whether they are civil and political rights, such as the 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 rights, such as the rights to development and self-determination, are indivisible, interrelated and interdependent. The improvement of one right facilitates advancement of the others. Likewise, the deprivation of one right adversely affects the others.

Equal and non-discriminatory
Non-discrimination is a cross-cutting principle in international human rights law. The principle is present in all the major human rights treaties and provides the central theme of some of international human rights conventions such as the International Convention on the Elimination of All Forms of Racial Discrimination and the Convention on the Elimination of All Forms of Discrimination against Women.

The principle applies to everyone in relation to all human rights and freedoms and it prohibits discrimination on the basis of a list of non-exhaustive categories such as sex, race, colour and so on. The principle of non-discrimination is complemented by the principle of equality, as stated in Article 1 of the Universal Declaration of Human Rights: “All human beings are born free and equal in dignity and rights.”

Both Rights and Obligations
Human rights entail both rights and obligations. States assume obligations and duties under international law to respect, to protect and to fulfil human rights. The obligation to respect means that States must refrain from interfering with or curtailing the enjoyment of human rights. The obligation to protect requires States to protect individuals and groups 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.

Definition of Human Rights:-

The fundamental rights that humans have by the fact of being human, and that are neither created nor can be abrogated by any government.

Supported by several international conventions and treaties (such as the United Nation's Universal Declaration of Human rights in 1948), these include cultural, economic, and political rights, such as right to life, liberty, education and equality before law, and right of association, belief, free speech, information, religion, movement, and nationality. Promulgation of these rights is not binding on any country, but they serve as a standard of concern for people and form the basis of many modern national constitutions.

Definition of Natural Rights

Fundamental human rights based on universal natural law, as opposed to those based on man-made positive law. Although there is no unanimity as to which right is natural and which is not, the widely held view is that nature endows every human (without any distinction of time or space, and without any regard to age, gender, nationality, or race) with certain inalienable rights (such as the right to 'life, liberty, and pursuit of happiness') which cannot be abrogated or interfered with by any government. And that, whether or not these rights are enshrined in a national legal code, no government is lawful if it fails to upholds them.

Ø Throughout the world the mantra rises for all nations to protect “human rights.” And while this normally refers to protecting life, it often goes out as a call to protect the latest interest of an esoteric movement: usually one availing itself of the tactic of shame in a bid to have its every demand met in full. We see this in the push to end “gender-labels,” where academicians argue that the traits of being male or female are socially constructed vehicles of oppression that stand in violation of “human rights.” And we also see it in pushes for “universal healthcare,” where people claim medical services are just one more thing to which they have a right.

And while no one should deny that there are rights intrinsic to humanity, we must be careful about seizing onto the “human rights” mantra too quickly. For the phrase “human rights” does not denote what the West has long referenced as “natural rights.” In fact, the two categories of rights are, in some ways, not only unrelated but actually at enmity with one another. Moreover, whereas “natural rights” offer a viable (and tested) foundation for freedom, “human rights” offer an avenue to power for tyrannical leaders and ideologues who are willing to sacrifice even their own people for a cause, whatever it may be.

Consider this: “natural rights” are frequently described as God-given, and as such provide a bulwark against government’s tendency to become tyrannical. “Human rights,” on the other hand, are usually the constructs of men: men who are most often atheistic (or “enlightened”) in their worldview, and therefore looking for some earthly-yet-quasi-universal justification for being nice to one another and abiding by the rules of the state.

A clear contrast between these categories of rights can be had by looking at the different motivations that were behind the French Revolution and the American Revolution.

After the Bastille was stormed in 1789, the revolution in France was undertaken in pursuit of “Liberty, Equality, and Fraternity.” And by 1791, as the details of these overarching goals effervesced beneath the steady march of the Jacobins, it was apparent that “Liberty, Equality, and Fraternity” would be sought as a way to secure the “rights of man,” and those rights, in turn, would lead to the creation of an idealistic, classless society—democratic rather than monarchial—where the ultimate ruling dogma was “might makes right.” This was especially apparent once Maximilien Robespierre began his “reign of terror,” and those who weren’t ready or willing to pursue the “rights of man” were done away via the executioner’s blade.

This is very telling, because the “rights of man” sounds so universal, so basic to humanity itself (in much the same way that “human rights” does today). But it was really just a tool for ideologues, and as such, served as an avenue by which those in power could raise a sword against the old order, and cut themselves completely away from that which Edmund Burke described as the “contract with eternal society.” In so doing they ended a “partnership not only between those who are living…but those who are dead, and those who are to be born” as well.

The American Revolution, on the other hand, sought not to break with living, the dead, or those who are to be born. Rather, as Russell Kirk observed, it appealed to “chartered rights,” with a firm belief “in those established rights and institutions.” In other words, the American Revolution sought a continued reliance upon those things which had characterized Western existence and practice theretofore.

Again, according to Kirk, those behind the French Revolution were enraptured by “theoretic dogma,” while the framers of the documents that emerged during the American Revolution—documents like the Declaration of Independence—were not producing “original works of political theory: instead, [they were reflecting] theories that had been discussed in America” for some time.

Regardless of what one calls them, the American Revolution’s appeal to “natural rights” (or “inalienable rights” or “absolute rights”) was ultimately an appeal to the Creator who had endowed us with those rights. And as such, it was as way of pointing man beyond mere earthly governments to a more solid foundation. But we Westerners are fast letting go of phrases like “God-given” or “absolute” to describe the foundation or immutable nature of our rights. As a result, the appeal to “human rights” continues to sever us not only from others who are living, but also those who are dead, and who are to be born.

Thus, instead of being proud of a constitution that has become “the oldest written national constitution still in force anywhere in the world,” many Westerns—both within America and without—distance themselves from the U.S. Constitution because it does not recognize and protect enough rights: or should I say it does not recognize and protect the kind of rights that are in vogue today. As the New York Times recently reported, “The Constitution is out of step with the rest of the world in failing to protect, at least in so many words, [an]…entitlement to food, education and health care.” And among the rights it does protect, some are the wrong rights, like the right to private gun ownership: a right which the Times denigrated as one that “only 2 percent of the world’s constitutions protect.”

As I indicated earlier in this piece, “human rights” and “natural rights” are “in some ways, not only unrelated but actually at enmity one with another.” So in the New York Times’ article we see expressed the mentality that education should not only be a right but an entitlement, while the God-given right to self-defense, clearly implied in the 2nd Amendment to the U.S. Constitution, and the right to own a firearm, have both become a bit passé.

The West trades “natural rights” for “human rights” at its own peril

Human Rights vs Fundamental Rights
It has become fashionable to talk about human rights and their violation in many parts of the world. State repression and use of violence to deny basic human rights to its population or a section of the population on religious or other grounds is not tolerated these days, especially by international media and international organizations like INHRC and UNHRC that are performing the duties of a watchdog. But is there any difference in the human rights as talked by these organizations and fundamental rights that are guaranteed by constitutions of some countries of the world to its citizens? Let us take a closer look at both.

Human Rights
If you are a consumer, you have rights. If you are a seller, you have certain rights. But what about your rights as a human being? This is what prompted United Nations to think along the lines of universal rights for all human beings, whether they live in advanced countries or in poor, underdeveloped countries of the world. Despite all the soul searching and brainstorming, there has been no consensus among the nations of the world as to what constitute these basic human rights. In the US itself, it was left to the untiring efforts of Martin Luther King (who in turn was inspired by M. K. Gandhi’s struggle to fight for the right of the Indians) to fight for the rights of blacks in a society dominated on all fronts by whites.

The concerted efforts by western, advanced countries led by the US in the 70’s led to the human rights movement that gained momentum in the coming decades and the situation today is such that wherever there is violation or suppression of these rights in any part of the world, organizations such as UNHRC, INHRC, and Amnesty international work overtime and pressurize the international community to help restore these rights of the people in the affected country.

Fundamental Rights
Fundamental rights are rights and freedoms guaranteed by constitutions of some countries of the world to their citizens. These rights have a legal sanction and can be challenged by affected individuals in a court of law. Among these rights are the right to life, liberty (of freedom, free will and personal), pursuit of happiness, and so on. These rights are considered to be the most basic rights and are provided to all citizens of the country without any discrimination. There are other fundamental rights such as the right to profess faith, right to movement across the country, right to freedom of speech and belief, and so on.

What is the difference between Human Rights and Fundamental Rights?
Fundamental rights are similar to human rights but are different in the sense that they have legal sanction and are enforceable in a court of law whereas human rights do not have such sanctity and are not enforceable in courts. Then there is difference of universal appeal because fundamental rights are country specific that have been made keeping in mind the history and culture of a country whereas human rights are designed in such a way that they are of even more basic nature and apply to all human beings across the world without any discrimination. The right to a dignified human life is one such human right which cannot be questioned whether you are in US or in a poor African country.

In brief:

Human Rights vs Fundamental Rights

• Human rights are relatively new while fundamental rights enshrined by constitutions of various countries are older
• While there is no consensus on universal human rights, fundamental rights are specific and have legal sanction
• Human rights are more basic in nature than fundamental rights and apply to all human beings on the face of the earth whereas fundamental rights are country specific.

Conclusion:- In my view human rights and basic or natural rights more or less same.

Bibliography
# http://www.businessdictionary.com/definition/natural-rights.html
# www.humanrights.com/what-are-human-rights.html




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