Middle East Institute
Report Part Title: WHAT ARE “HUMAN RIGHTS”?
Report Title: TERRORISM AND HUMAN RIGHTS
Report Subtitle: THE PERSPECTIVE OF INTERNATIONAL LAW
Report Author(s): DAVID P. STEWART
Middle East Institute (2018)
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culture, tradition, nationality, political
INTRODUCTION orientation, social standing or other
factors, but must be protected in fact
L
aw (including international
and given effect by law.
law) necessarily reflects the
community it serves. It mirrors Broadly speaking, these rights include
the community’s values and structure the most fundamental preconditions for
and should serve the interests of the a dignified human existence. They are
community in resolving disputes among primarily asserted against government
its members in accordance with their authorities (i.e., must be respected,
expressed values. Law provides only protected and given effect by the
one way of defining and dealing with government) but in some instances are
communal problems, but without clear also capable of assertion against other
legal principles and effective legal individuals in their private capacities
processes, the community lacks a (e.g. discrimination).
critical stabilizing force.
1. INTERNATIONAL
Human rights and terrorism are broad
phenomena, not just legal problems,
HUMAN RIGHTS LAW
and the legal perspective is surely not The main articulation of international
the only one relevant to an analysis of human rights law is found in various
their role in contemporary international human rights treaties and other
relations. But law can contribute to international instruments.1 The core
viable solutions, and an awareness of documents are the 1948 Universal
the legal perspective is just as important Declaration of Human Rights (UDHR)
for policy makers as other perspectives and two multilateral treaties, the 1966
are for international lawyers. International Covenant on Civil and
Political Rights (ICCPR) and the
PART I. WHAT International Covenant on Economic,
ARE “HUMAN Social and Cultural Rights (ICESCR)
(sometimes referred to collectively as
RIGHTS”? the “International Bill of Rights”). As a
General Assembly resolution, the UDHR
Internationally-recognized human is technically non-binding under
rights are commonly understood to international law but is generally
encompass those rights to which accepted as articulating the obligations
all persons are entitled without undertaken by UN Member States
discrimination by the mere fact of being under the UN Charter. The two
human —that is, rights that cannot be Covenants are legally binding on States
denied or restricted on the basis of
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that have ratified them, and they are in
2. CATEGORIES OF
fact widely ratified (if not equally widely
respected in practice).2 RIGHTS
Other core universal human rights With the proliferation of international
treaties include the 1965 International human rights instruments, it has
Convention on the Elimination of become common to differentiate
All Forms of Racial Discrimination,3 between
the 1980 Convention on the Elimination
a. civil and political rights, sometimes
of All Forms of Discrimination against
called “first generation” rights,
Women,4 the 1984 Convention against
Torture and other Cruel, Inhuman or b. economic, social and cultural rights
Degrading Treatment or Punishment,5 (“second generation” rights), and
the 1989 Convention on the Rights of the
c. group or collective rights, often
Child,6 the 1990 International Convention
denominated “third generation”
on the Protection of the Rights of All
rights.
Migrant Workers and Members of
Their Families,7 the 2006 International These are not precise categorizations
Convention for the Protection of All but nonetheless serve to highlight some
Persons from Enforced Disappearance, helpful distinctions.
and the 2006 Convention on the Rights
By way of example, “first generation”
of Persons with Disabilities.
rights relate primarily to personal
In addition to these “universal” freedom and liberty from governmental
conventions, several regional human interference. They encompass many
rights systems are founded on their of the basic individual rights protected
own treaties and feature regional by the U.S. Constitution and related
enforcement mechanisms (e.g., legislation, including (i) such “physical
commissions and courts), specifically in integrity rights” as the rights to life, liberty
Europe (under the Council of Europe), and security of the person, protection
Africa (within the African Union) and the from physical violence including torture
Americas (OAS). No such agreements or and inhuman treatment, exile, slavery
mechanisms exist for the Middle East and servitude; (ii) “due process” rights
(or Asia). such as protection against arbitrary
arrest and detention, the right to a
public hearing by an independent and
impartial tribunal, the presumption
of innocence, freedom from double
jeopardy, the right to equal treatment
and protection in law; and (iii) “personal
freedom” rights such as protection
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of one’s privacy and rights of “Third generation” rights include
ownership, freedom of expression, both “solidarity rights” deemed
thought, conscience and religion, necessary to protect specific groups
association, assembly, movement, in need of particular protection
etc. They also include “political (women, children, migrants, the
participation rights” common to disabled, the indigenous, etc.)
democratic governance, including and rights owing to the “global
the right to take part in the community” in general, for example
government of one’s country, to the rights to development, peace or
vote, to stand for election at genuine a clean global environment. Perhaps
periodic elections held by secret the most fundamental “collective”
ballot, etc. human right is the right to self-
determination, which is textually
By contrast, the “second generation”
vested in “peoples” rather than
of human rights addresses the
in individuals. (A vibrant debate
broader societal conditions
has emerged over whether this
necessary for well-being and
right applies outside the context
prosperity, including, for example,
of a struggle for post-colonial
the rights to property, work (which
independence, e.g., to the “people”
one freely chooses or accepts), a
in Quebec, Catelonia, California or
fair wage, a reasonable limitation
Corsica). It is generally accepted that
of working hours, safe working
collective rights may not infringe
conditions, and trade union rights.
on universally-accepted individual
Notably this category extends to
rights, such as the right to life and
elements considered necessary
freedom from torture.
for an adequate standard of living,
including inter alia rights to health, These categories reflect different
shelter, food, water, social care, concepts of the nature of “rights”
education, to participate freely in and the role of government in their
the cultural life of the community, protection and promotion. Broadly
to share in scientific advancement speaking, “first generation” rights
and to the protection of the moral can be thought of as limitations on
and material interests resulting governmental action (freedoms)
from any scientific, literary or artistic while “second generation” rights
production of which one is the function as demands on government
author. (entitlements). To illustrate, freedom
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of speech, press, assembly and religion are
largely respected when the government
does not interfere, while rights to work,
education and health care likely require
affirmative governmental action. The
distinction is not perfect, but in its origins
it reflected the differing approaches of
the liberal/western democracies on the
one hand and the socialist/communist
approach on the other (thus, the decision
taken in the United Nations during the Cold
War to separate the rights described in the
Universal Declaration into two separate
“human right covenants”).
In their legal formulations, civil and
political rights are sometimes said to
reflect “negative obligations” capable
of immediate implementation and are
therefore expressed in precise language,
while economic, social and cultural
rights are viewed as imposing “positive
obligations” which are often conditional on
the existence of available resources and
therefore require “progressive realization”
and can consequently expressed in less
precise terms.
In consequence, civil and political rights
are often said to be “justiciable,” i.e., legal
rights capable of being asserted against
governmental authority in court, while
economic, social and cultural rights are
by nature “non-justiciable” and instead
matters for governmental decision (such
as legislative enactment) since they involve
commitment of resources and funding.
Photo credit: AHMAD AL-RUBAYE/AFP/Getty Images
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While that may reflect the situation in many
traditional democratic systems, it is not true
of many countries today (such as South
Africa, which specifically vests its courts
with powers to instruct the government on
the necessary allocation of funds to satisfy
legally-recognized economic and social
rights).
The “human rights revolution” has
also opened up new opportunities
for international examination of how
governments give effect to their human
rights obligations at the domestic level.
Once considered an intrusion into “domestic
affairs” to criticize how a government
dealt with its own citizens, that discussion
has now been legitimized for example
through the “universal periodic review” of
every State’s human rights performance
by the UN Human Rights Council, as
well as the examinations undertaken by
other human rights entities such as the
“treaty bodies” established by the various
human rights conventions (e.g., the Human
Rights Committee under the ICCPR and
the Committee on Economic, Social and
Cultural Rights under the ICESCR), both of
which can receive and consider individual
and collective complaints alleging
violations of rights protected under their
respective treaties.
Photo credit: FADEL SENNA/AFP/Getty Images
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