HUMAN RIGHTS MEANING,CONCEPT AND NATURE

Dr.Milendra singh (Astt.Professor)

Dr.Harisingh Gour Central University.SAGAR Dr.Kiran Chouhan(guest faculty) Govt.PG College Narsinghpur Shweta Yadav(LL.b.)(3yrs) Dr.Harisingh Gour Central University,SAGAR

Definition and Meaning

The following definition expresses clearly the meaning of human rights:

A human right 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 simply because he is human.1 An alternative explanation was provided by the philosopher Kant. He said that human beings have an intrinsic value absent in inanimate objects. To violate a human right would therefore be a failure to recognize the worth of human life.2

Different counties ensure these rights in different way. In India they are contained in the Constitution as fundamental rights, i.e. they are guaranteed statutorily. In the UK they are available through precedence, various elements having been laid down by the courts through case law. In addition, international law and conventions also provide certain safeguards.

Human rights are something we all share. They are about recognising the value and dignity of all people. In learning about human rights, we learn about ideas of respect, fairness, justice and equality. We learn about standing up for our own rights and about our responsibility to respect the rights of others. Understanding human rights shapes our thinking and our actions because human rights are about real-life issues. They are about: having clean water to drink and food to eat; being able to go to school or have a job; and being treated fairly by others, regardless of your age, race, religion or where you were born.

History of human rights

The history of human rights covers thousands of years and draws upon religious, cultural, philosophical and legal developments throughout the recorded history. It seems that the concept of human rights is as old as the civilization. This is evident from the fact that almost at all stages of mankind there have been a human rights documents in one form or the other in existence. Several ancient documents and later religious and philosophies included a variety of concepts that may be considered to be human rights. Notable among such documents are the Edicts of Ashoka issued by Ashoka the Great of India between 272-231 BC and the Constitution of Medina of 622 AD, drafted by Muhammad to mark a formal agreement between all of the significant tribes and families of Yathrib (later known as Medina). However, the idea for the protection of human rights grew after the tragic experiences of the two world wars. Prior to the world war, there was not much codification done either at the national or the international levels for the protection and

implementation of human rights. This paper seeks to analyse the concept and approaches of human rights and its development even before the Greek times. In this regard, the period has been classified as pre world wars and post war eras. The latter has been further divided into normative foundation, institution building and stage of implementation. Several important documents like Magna Carta, French Declaration of the Rights of Man, UDHR, ICCPR etc. and a brief discussion of various approaches to human rights have been mentioned. Concept Of Human Rights Human rights are the rights a person has simply because he or she is a human being. Human rights are held by all persons equally, universally, and forever. All human beings are born free and equal in d ignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood.[1] Kant said that human beings have an intrinsic value absent in inanimate objects. To violate a human right would therefore be a failure to recognize the worth of human life.[2] Human right is a concept that has been constantly evolving throughout human history. They have been intricately tied to the laws, customs and religions throughout the ages. Most societies have had traditions similar to the "golden rule" of "Do unto others as you would have them do unto you." The Hindu Vedas, the Babylonian Code of Hammurabi, the Bible, the Quran (Koran), and the Analects of Confucius are five of the oldest written sources which address questions of peoples duties, rights, and responsibilities. Different counties ensure these rights in different way. In India they are contained in the Constitution as fundamental rights, i.e. they are guaranteed statutorily. In the UK they are available through precedence, various elements having been laid down by the courts through case law. In addition, international law and conventions also provide certain safeguards. Human rights refer to the "basic rights and freedoms to which all humans are entitled." Examples of rights and freedoms which have come to be commonly thought of as human rights include civil and political rights, such as the right to life and liberty, freedom of expression, and equality before the law; and social, cultural and economic rights, including the right to participate in culture, the right to food, the right to work, and the right to education. A human right 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 simply because he is human.[3] Human rights are inalienable: yo u cannot lose these rights any more than you can cease being a human being. Human rights are indivisible: you cannot be denied a right because it is "less important" or "non-essential." Human rights are interdependent: all human rights are part of a complementary framework. For example, your ability to participate in your government is directly affected by your right to express yourself, to get an education, and even to obtain the necessities of life.

Basic Requirements for Human Rights

Any society that is to protect human rights must have the following characteristics: i) ii) A de jure or free state in which the right to self-determination and rule of law exist. A legal system for the protection of human rights.

Effective organized (existing within the framework of the state) or unorganized guarantees Approaches to Human Rights3

The Natural Law Approach

This theory focuses on a natural law that is higher than positive law (law created by man) and to which the latter must conform. Natural law is based on equality. However since it employs means such as the revelation of divine will, transcendental cognition and participation in natural reason, none of its claims an be conclusively confirmed or rejected.

The Historical Approach

This approach views human rights as a function of culture and environment and inculcates space and time factors as well. However, it has three distinct drawbacks. Firstly, it sometimes does not consider the individual as an entity outside of the community. Secondly, it gives more importance to language, religion etc. than the actual views of people. Thirdly, by focusing on the differences between societies, it undermines the universality of human rights.

The Positivist Approach This approach sees law as enacted by an authoritative sovereign and deriving sanction from coercion. The main disadvantage here is laws would not stem from the will of the people but from that of the sovereign. Obedience would be more easily obtained if sanction came not from force but from laws being based in the values of society.

Positivists also see only nations and not individuals as subject to international law, a view that would render ineffective a number of instruments available today. The Marxist Approach

This view comes from the writings of Karl Marx in the context of the 19th century industrial revolution. It posits that in capitalist societies, human rights do not exist. They only come into being in a classless society where there is public ownership of the means of production.

This approach too suffers from defects one of which is that it views the development of human rights in a communist society as inevitable and not problematic.

The Social Science Approach

This approach locates human rights in the context of larger social processes, dwelling on the communitys role in shaping principles. It uses scientific and empirical methods, models and techniques to estimate the degree of success/failure of human rights. It fails however, to provide a clear link between social processes and the law The legal nature of human rights How can we understand the legal nature of human rights? We need to think through some difficult issues. We could ask about the semantics of rights. In the English language, right has two senses: one is moral and the other is political or legal. In the moral sense, right refers to what it is right to do from a moral perspective: for instance, to assert that it is wrong to steal, is to assert, in part, that it is morally wrong to deprive people of their property without a compelling reason. The second sense of the word refers to a relationship between right and duty or obligation in the context of the law. In this second sense, the meaning of right is stronger than in the former, in that a right holder can compel a duty bearer to honour that right by calling on the court to compel respect for the right. It is possible to speak of

rights in a number of legal contexts. For instance, a right derived from a contract, in a private law sense, creates an obligation through an exchange for value. If a party to the contract refuses to undertake the obligations in the contract, the court may enforce it through various remedies. Likewise, and again in a private law sense, a beneficiary has certain rights under a trust that can be enforced against the trustee. These do not rest in contract, but in the equitable nature of the trust. Again, the court will enforce these equitable rights. In other words, the distinction between the two senses of the word moves from a statement of what is morally desirable to a statement of an entitlement that can be enforced. Public law rights are somewhat different, in that they do not originate in private law agreements. Although this is a complex point, we could perhaps suggest that public law rights are derived Chapter 3 The nature of human rights University of London External Programme 49 either from a constitution, which states the rights of citizens, or from general principles of law that state civil liberties. The paramount nature of human rights is either recognised by domestic law or it is not. For example, you cannot speak of legally enforceable human rights in English law, as Parliament is sovereign and could legislate against human rights. In constitutions that entrench human rights, or make it either difficult or impossible to override human rights provisions, you can speak of fundamental human rights. We could return to our definition of human rights with which we opened this section. Human rights may be explicable as rights that we have by virtue of our humanity, but this does not necessarily

make them legally enforceable or fundamental. Unless a positive legal source states that they are fundamental, human rights fall short of legal claims and can perhaps be thought of as political claims about the desirability of a certain state of affairs. In this sense human rightsprovide a moral standard of national political legitimacy (Donnelly, 1998, p.20). Again, we have to make a distinction between the fundamental legal nature of human rights and the political nature of human rights in international law. The extent to which a human right is binding is the extent to which it is internationally recognised and legally enforceable. Although some rights may indeed be both recognised and enforceable by a court, others cannot be so enforced or at least cann

Specific Human Rights4

Economic, Social and Cultural Rights

These second generation rights prevent the oppression and further the interests of economically, socially and culturally disadvantaged groups.

Womens Rights

Womens rights include affording them resources and opportunities that they have previously been denied. One of the most important rights in this area is the right against sexual harassment which has been given greater importance due to the soaring rates of crimes against women. ot be enforced by a court. Child Rights

These include the right to education and freedom from child labour among others. Several of these rights are laid down in the UN Declaration of the Rights of the Child which aim to provide a child an environment in which he/she can develop properly.

Environmental Rights

Environmental rights have to do with slowing down the depletion of natural resources that cannot be renewed. Sustainable development is one of the main issues and has been debated at the World Summits. Nuclear proliferation is also addressed.

Human Rights Challenges 1. Poverty and global inequities 2. Discrimination 3. Armed conflict and violence 4. Impunity 5. Democracy deficits 6. Weak institutions

Role of india