By Dr. Gyan Basnet
In recognising a fundamental link between rights denial, impoverishment, vulnerability and conflict, ‘human rights’ have become a focal point for discourse and ‘the most popular coinage’ not only in international and domestic politics but among civil society, academicians, United Nations agencies, donor bodies, NGOs and INGOs. Despite this, the nature and the status of human rights are considered to be highly controversial and difficult issues in philosophy. Since they offer a guide to social action or a set of minimal standards, society tries to load onto the human rights agenda all its remaining serious problems. It becomes hard then to appreciate whether the listing of human rights will ever end.
The term ‘civil liberties’ denotes the broad class of rights known as civil and political rights, which belong to and are enjoyed by the citizen by virtue of his citizenship. They mostly concern the relationship between the individual and the state in the distribution and sharing of powers. Civil liberties are also referred to as fundamental rights that enable the citizen to play his or her part in the operation of the state through being free to express political views. At the same time they make clear the relationship between state and the citizen by the protection offered to the latter against any arbitrary or discriminatory treatment. The fact that something is described as a civil liberty imposes a duty of protection on the state as a moral or legal requisite. Civil liberties thus enable the citizen to speak or do specific things without fear of restriction by the state.
It has long been alleged that the concepts and ideals of human rights and civil liberties do not enjoy equal value. Why human rights and civil liberties should not be regarded as interchangeable concepts: are there really differences in meaning that need to be identified? Today, there are countries that have signed up to every international human rights instrument, but within their borders we continue to witness gross violations of civil liberties. A clear demarcation between the two concepts may help to avoid confusion.
The distinction between human rights and civil liberties can be attributed to their origins: the former emerging from natural law, the latter from man-made law – a distinction, in effect, between natural rights and political rights. Since human rights have their source in natural law, they attach to humans because they are humans. They are natural and moral in character, and they are based on reason. As L. Henkin argues: ‘human rights are universal in character: they belong to every human being regardless of origin, geography, culture, ideology, sex, race, age, wealth, property, religion or other commitment.’ Thus, human rights refer to a ‘wide continuum of value claims from the most justiciable to the most aspirational’: they embrace rights, which are fundamental to human survival in the world at large. Some fundamental rights, however, are guaranteed by written constitution: these are termed fundamental constitutional rights, and they operate to prevent the state taking unnecessary action to curtail its people’s rights. Such rights are recognized in the constitution and institutions of many societies today: the South African constitution, for example, recognizes the right to freedom of expression, the right to life, the right to freedom of movement, and the right to protection of life and personal liberty. It is argued that fundamental constitutional rights are a distinguishing feature of the modern democratic process.
Human rights are more fundamental than other rights in the sense that they are the fundamental norms of society: they are the ‘standards that bind the agents of any society’. They are implicit in established principles that are generally understood and accepted by that society, and they are needed in order to achieve that society’s ambitions for peace and justice as well as the individual’s desire for human dignity and human fulfilment. They provide basic legal or moral guarantees for all humans, individually or together, against state or other action that could affect their fundamental human dignity. They are therefore grounded in the ‘fundamental idea that human lives can and should have value’ – that individually and together humans can seek to achieve their vision of the good life provided such vision does not contravene similar rights of others and complies with society’s behavioural norms.
After World War II the newly constituted United Nations recognized the universal nature of human rights as being inherent in the very nature of human beings and an essential part of their common humanity. Since then the emergence of human rights has been a central issue in international politics and relations. The many legal texts that today describe the fundamental rights and freedoms to which each individual is entitled trace their lineage back to 10 December 1948 and the adoption by the General Assembly of the United Nations of the Universal Declaration of Human Rights. Three major fundamental international human rights instruments are known as ‘international bills of rights’: they are the Universal Declaration of Human Rights itself, the International Covenant on Civil and Political Rights, and the International Covenant on Economic, Social and Cultural Rights. It is argued that ‘the three documents seek to address the whole of mankind with a single voice to provide the same broad parameters of behaviour for all states’. In addition, there are ‘human rights’ instruments, including regional human rights treaties that play a fundamental role in promoting and protecting human rights within particular regions. Since the 1940s, therefore, a legal code has emerged that recognises and articulates the concepts of fundamental human rights and freedoms: it is based on the values and principles that states have agreed to share across all societies.
Civil liberties are positive in nature and are a creation of the general law of the country. They are rights that the state has adopted on behalf of its citizens, and they are political in nature. They are state-made, state-enforced rights that are granted by laws enacted by individual governments. They are fundamental rights that are co-related with the freedoms and rights that a citizen derives through his association with the state: they are guaranteed to citizens by, for example, a country’s constitution. Where the constitution gives a special status to a liberty, it can be said to be a constitutional liberty.
We may see then that civil liberties are freedoms that permit the fullest development of one’s personality: for example the right to freedom of expression, of movement, of religious practice; the right to information, and the right to property. Furthermore, among the key components of civil liberties are those that are essential to human survival, such as the right to life, liberty, and personal security; the right to equality under the law; the right of access to effective legal remedies by a competent national judiciary; the right not to be subjected to arbitrary arrest or to arbitrary interference with regard to one’s privacy, one’s home, one’s correspondence, etc. Civil liberties imply also procedural safeguards such as the right to a swift and public trial before a locally recruited and impartial jury, to being provided with a clear statement of the alleged crime, to have present prosecution and defence witnesses, to being represented by counsel, and to receive a fair punishment. Above all they imply that no citizen should be deprived of life, liberty or property without a proper legal hearing.
The concept of human rights is a vast and universal phenomenon that is wide enough to incorporate fundamental rights and civil liberties. They can form the overall framework of freedoms within which the latter operate. Human rights, civil liberties and fundamental constitutional rights are closely interconnected, and ‘there is a seamless web where one sometimes folds into the other’. Thus, key elements of human rights and civil liberties do not differ. Yet experience and history show that merely signing up to an international human rights covenant does not make fundamental human rights flourish in any country.
Human rights may have become part of a multi-billion dollar business, but much still remains to be done if they are to succeed in protecting human dignity. Where they are denied, human rights must be positively asserted and defended in both theoretical and practical ways. To bring these ideals to reality we need political commitment, sincerity among politicians and their leaders, and the promotion of a human rights culture in all sectors of governance. We need to provide human rights education to make people themselves aware that they have rights and civil liberties that are safeguarded through the constitution and laws of their country.
History shows that providing rights and liberties only in ‘black letter laws’ is not enough: mechanisms for enforcement are needed too. Since human rights violations occur very often at a very local level, e.g. at a local police station, at a local industry, and even at our own kitchen table, the impetus for change must start internally within us. A culture of respect for rights must develop from within our own home.
The conditions faced by humanity, which human rights seek to protect and promote, are always changing. Oppression and powerlessness constantly reveal themselves, and new challenges emerge almost daily. The process of defining and protecting human freedom and development is continually on going. The issues involved demand perpetual vigilance and constant updating. The effectiveness and range of norms have to be fully understood by those who are the intended beneficiaries as well as by those who are under a duty to apply them. It is essential that human rights remain vital elements in the national, international and transnational struggles for social justice and human dignity. In the 21st century they are humanity’s humble implementation of the injunctions of a multitude of world religions.
Dr Basnet, who holds a Ph.D. and an LL.M degree in International Human Rights law at Lancaster University, U.K, is a Prominent Columnist, Researcher in International Human Rights Law and an Advocate in the Supreme Court Nepal. E-mail: [email protected]