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In this lesson we will deal with the historical evolution of human rights.
To sketch such evolution we may highlight several mileposts:
The struggle to limit political power is as old as the history of humankind.
But it would not be until the Low Middle Ages that limits to power would be expressed in binding commitments.
Thus, in the 12th Century Spain, with the Magna Carta for the Kingdom of León (1188)
and in the early 13th Century England, with the British Magna Carta (1215), the growing
power of central kings was prevented from being arbitrarily used against their subjects,
through the enshrinement of due process of law and home privacy rights.
Much later, in 1689, the King of England was forced to agree to the British Bill of Rights
as a condition to occupy the throne.
In the late 17th Century, the British philosopher John Locke argued in favor of restricting
the royal power, defending religious tolerance and the protection of the natural right to property.
French political philosophers of the 18th Century, such as Montesquieu and Rousseau,
defended the division of State's functions in order to limit power.
During the same period, German philosopher Immanuel Kant made the case for bestowing rights to
all rational beings, in recognition of their natural dignity.
On the political front, liberal revolutions during the late 18th Century also bolstered
the cause of the protection of individual rights. Thus, after the success of the United
States Revolution, the first set of amendments to the American Constitution, in 1791, came
in the shape of a Bill of Rights.
Shortly after that, at the outset of the French Revolution,
the Declaration of the Rights of Man and of the Citizen was issued by the revolutionaries in power.
This trend is known as the "positivization" of human rights, that is, their translation
into human-made law.
Since the liberal revolutions of the late
18th Century were inspired by rationalism, individual rights meant that all human beings
were supposed to be entitled to them, including slaves and women, who had been traditionally
excluded from full citizenship. Therefore, since the 19th Century human rights were progressively
recognized for all people.
By the mid 19th Century, it was clear in Europe
that the rights enshrined after the liberal revolutions would not suffice.
Those rights referred to the limitation of power and the protection of the individual in its most intimate sphere.
They also dealt with the participation of the individual in the social, economic
and political life of the community, including the right to elect public officials and representatives
and to run for public office. In a word, they were the "rights of liberty", also known as
"first generation rights" or "civil and political rights".
But now, the need was felt to recognize the "rights of equality", to improve the material
conditions of the poor and most vulnerable classes of society. The set of rights which
aimed at having basic needs satisfied has been called, in the last several decades,
the "second generation" of rights, or "economic, social and cultural rights". The State was
now expected to deliver, not just to keep its hands off.
Although since the time of the Enlightenment rationalism had made the case for the expansion
of rights to all rational beings, it was only in 1948, after the Second World War,
that the international community proclaimed the Universal Declaration of Human Rights. Thereafter,
many other international human rights documents have been produced. They will be dealt with
soon in a class of this course devoted to them.
Let's just point out now that, historically,
it was the awareness of the universal vulnerability of humankind vis-à-vis the horrors of warfare,
rather than a shared rationality, the reason which elevated human rights to an international dimension.
Starting in the 1970´s, a new wave of rights came up.
These were civil and political as well as economic, social and cultural rights.
Yet, they were tailored to the needs of specific groups such as women, children, disabled people
and indigenous people. These groups are either objectively vulnerable (as in the case of
disabled people or children) or they have been made vulnerable through a history of
discrimination and exclusion (as in the case of women and indigenous people).
Also, since the 1970s some "collective rights" rights were proclaimed. For example, the right
to peace, the right to development and the right to a clean, sustainable environment.
Except for the latter, they are included just in "Declarations", not in legally binding documents.
Criminal law is the most powerful legal mechanism to protect rights and social values. Following
some precedents, the international community decided to create, in 1998, the first permanent
International Criminal Court. International criminal law will be dealt with in a special
class of this course.
Another way of looking at the historical evolution of human rights
is to pay attention to the "obligor", or entity upon which human rights
obligations have been imposed. Before the revolutions of the late 18th Century,
the one obliged to recognize and respect basic rights was the king or ruler.
After the liberal revolutions of the late 18th Century, the entity that was supposed
to recognize and respect the rights of citizens was not the king anymore,
but the modern Nation State, whose power is most evidently exercised by the government.
Since the issuing of the Universal Declaration of Human Rights and subsequent international
treaties, it is not only the Nation State, but the international community as well,
specially the United Nations, the entities obliged to respect and promote Human Rights.
As time passed, this rationale, where the obligor is the State or another political entity
and the right holder is a private individual, has been completed by a trend towards accepting
that the obligor may be another private entity, such as another individual, a corporation
or an armed group in times of war. This is known as the "horizontal effect" of human rights.
As mentioned earlier, it is customary to talk about "generations"
when analyzing the evolution of human rights. Accordingly, the "first generation"
or "first wave" of rights would be that which protects the intimate sphere of the individual,
as does the right to life, to privacy, to security and the like. This first generation
also comprises the right to participate in the political life of the community, including
the election of representatives and running for public office. For some authors,
political rights would constitute a second generation.
Afterwards, due to the social revolutions
of the mid 19th Century Europe, a "second generation" or wave of rights came to the fore.
It refers to material life conditions, including the rights to work, to health,
to education and to social security. In the second half of the 20th Century,
a "third generation" of rights has been said to appear. For some, it is made of the specification
of rights for certain groups. For others, it refers to collective rights.
Although this terminology of "generations" has a certain didactic quality, it may also
suggest the rather dangerous notion of a hierarchy of human rights. The point is that these "generations"
of rights are intertwined and it is not possible to establish a hierarchy among them. For instance,
the right to life - a first generation right - needs the adequate protection of the right
to health - a second generation right - and of the right to an unpolluted environment
- a third generation right - to be really fulfilled.
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