Human Rights

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HUMAN RIGHTS

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Human rights constitute a set of norms governing the treatment of individuals and groups by states and nonstate actors on the basis of ethical principles incorporated into national and international legal systems. Because the subject matter of the norms in question relate to the treatment of human beings, human rights overlap to a considerable degree with ethics, but they nevertheless should not be confused with ethics. Similarly, because human rights include the right to health and refer to essential social determinants of health and well-being of people, they overlap with many principles and norms of bioethics. Human rights and bioethics differ, however, in scope, sources, legal nature, and the mechanisms of monitoring and applying the norms.

The scope of bioethics is the ethical issues arising from healthcare and biomedical sciences, whereas that of human rights embraces the claims individuals and groups can legitimately make against states and nonstate actors to respect their dignity, integrity, autonomy, and freedom of action as defined in an officially endorsed set of standards or norms. Bioethics regulates clinical encounters with patients on the basis of principles; human rights, by contrast, are the special rules agreed upon in a given society to achieve justice and well-being.

The source of human rights is the norm-creating process of national and international legal systems, whereas that of bioethics is the deliberations and published opinions of leading thinkers, constituted review boards, and professional associations on the health-related ethical issues they address. Bioethics and human rights share an ethical concern for just behavior, built on empathy or altruism. The proximate formal source of human rights is typically an international human rights treaty or declaration while that of bioethics is a professional code or review board guidelines. The proximate source occasionally is identical, as when an instrument of international law directly addresses an issue of bioethics and human rights, for example, in the United Nations Educational, Scientific and Cultural Organization's (UNESCO) Universal Declaration on the Human Genome and Human Rights or the Council of Europe's Convention for the Protection of Human Rights and Dignity of the Human Being with Regard to the Application of Biology and Medicine, both of which were adopted in 1997.

The legal nature of human rights norms ranges from merely aspirational claims to justiciable and enforceable legally binding obligations. An important distinction is made between rights and human rights. In ethics a right refers to any entitlement, the moral validity or legitimacy of which depends on the mode of moral reasoning the ethicist is using. In law, a right is any legally protected interest. In human rights discourse, a human right is a higher-order right authoritatively defined using the expression human rights with the expectation that such a right carries a peremptory character and thus prevails over other (ordinary) rights. Another distinction is between the natural law and positive law foundations of human rights. The former refers to rights deriving from the natural order or divine origin, which are inalienable, immutable, and absolute, whereas in positive law rights are recognized through a political and legal process that results in a declaration, law, treaty, or other normative instrument. These may vary over time and be subject to derogations or limitations designed to optimize respect for human rights rather than impose an absolute standard. Human rights emerge from claims of people suffering injustice and thus are based on moral sentiment, culturally determined by contextualized moral and religious belief systems. They become part of the social order when an authoritative body proclaims them, and they attain a higher degree of universality based on the participation of virtually every nation in the norm-creating process, a process that is law-based but that reflects compromise and historical shifts. The International Bill of Human Rights (consisting of the Universal Declaration of Human Rights [UDHR] of 1948 and the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights, both of 1966), along with the other human rights treaties of the United Nations (UN) and of regional organizations, constitute the primary sources and reference points for what properly belongs in the category of human rights.

The methods of monitoring compliance with human rights include moral judgments made with reference to recognized human rights, quasi-judicial procedures of investigation and fact-finding leading to official pronouncements of political bodies, and enforceable judicial decisions. The parallel methods of bioethics focus more on codes of bioethics and official pronouncements of professional bodies that may result in altering research design or the behavior or liability of health professionals in their relations with patients or in policies affecting the health of populations.

The overlap of human rights and bioethical discourse and the differences between the two become clearer as one clarifies the following: the emergence of human rights in political and legal discourse, the content of the right to health as defined in human rights instruments, the other human rights as they relate to health and well-being, and the role and means of promotion and protection of human rights.

Emergence of Human Rights

The early formulation of the norms that are characterized today as human rights is inseparable from historical and philosophical manifestations of human striving for justice. Ultimately, human rights certainly derive from basic human instincts of survival of the species and behavior of empathy and altruism that evolutionary biology is only beginning to understand. Since human evolution is driven by reproductive selfishness, one could wonder why the human species would develop any ethical system, like that of human rights, according to which individuals manifest feeling for the suffering of others (empathy) and—even more surprising—act in self-sacrificing ways for the benefit of others without achieving any noticeable reproductive advantage. And yet, as Paul Ehrlich notes in Human Natures, "empathy and altruism often exist where the chances for any return for the altruist are nil" (p. 312). Natural selection does not provide the answer to moral behavior as "there aren't enough genes to code the various required behaviors" but rather "cultural evolution is the source of ethics" (p. 317) and therefore of human rights.

Religion and law have an ambiguous role in this historical process. The history of religions is replete with advances in the moral principles of behavior—many of which directly influenced the drafting of human rights texts—but also in crimes committed in the name of a Supreme Being. Similarly, the emergence of the rule of law has been critical both to advancing justice and human rights against the arbitrary usurpation of power in most societies and to preserving the impunity of oppressors.

Scholars trace the current configuration of international human rights norms and procedures to the revolutions of freedom and equality that transformed governments across Europe and North America in the eighteenth century and that liberated subjugated people from slavery and colonial domination in the nineteenth and twentieth centuries. Enlightenment philosophers derived the centrality of the individual from their theories of the state of nature. Social contractarians, especially the eighteenth-century French philosopher Jean-Jacques Rousseau, predicated the authority of the state on its capacity to achieve the optimum enjoyment of natural rights, that is, of rights inherent in each individual irrespective of birth or status. Rousseau wrote in A Discourse on the Origin of Inequality (1755) that "it is plainly contrary to the law of nature … that the privileged few should gorge themselves with superfluities, while the starving multitude are in want of the bare necessities of life"(p. 117). Equally important was the concept of the universalized individual ("the rights of Man"), reflected in the political thinking of Immanuel Kant, John Locke, Thomas Paine, and the authors of the French and American declarations. Much of this natural law tradition is secularized in contemporary human rights.

World War II was the defining event for the internationalization of human rights, with the latter anticipated by Roosevelt's "Four Freedoms" speech (1941), confirmed by the inclusion of human rights in the UN Charter (1945), and applied at the trial of Nazi doctors, leading to the Nuremberg Code (1946). In the war's immediate aftermath, bedrock human rights texts were adopted: the Genocide Convention and the UDHR in 1948 and the Geneva Conventions in 1949, followed in 1966 by the two international covenants. Nongovernmental organizations (NGOs) played a role in all these developments and in subsequent drafting of treaties, as well as in the creation of investigative and accountability procedures at the intergovernmental level and at the national level. These processes were instrumental in bringing down South African apartheid, transforming East-Central Europe, and restoring democracy in Latin America. Human rights NGOs are now active on all continents.

The Normative Content of Human Rights: The Right to Health

The current catalogue of human rights consists of some fifty normative propositions. They are enumerated in the international bill of human rights, extended by a score of specialized UN treaties, a half-dozen regional human rights treaties, and hundreds of international normative instruments in the fields of labor, refugees, armed conflict, and criminal law.

The meaning, scope, and practical significance of the right to health are particularly relevant for bioethics. The right to health as understood in international human rights law is defined in article 25 of the 1948 Universal Declaration of Human Rights ("Everyone has the right to a standard of living adequate for the health of himself and of his family, including food, clothing, housing and medical care and necessary social services.") and in article 12 of the 1966 International Covenant on Economic, Social and Cultural Rights (ICESCR) ("the right of everyone to the enjoyment of the highest attainable standard of physical and mental health"). Variations on these definitions are found in most of the core UN and regional human rights treaties. In 2000 the Committee on Economic, Social and Cultural Rights (CESCR), which was created to monitor the ICESCR, analyzed the normative content of the right to health in terms of availability, accessibility, appropriateness, and quality of care and specified the duties of the state to respect, protect, and provide this right. The committee also listed fourteen human rights as "integral components of the right to health." These related rights define to a large extent the determinants of health.

The right to health does not mean the right to be healthy, because being healthy is determined only in part by healthcare; it is also determined by genetic predisposition and social factors. The field of social epidemiology has excelled at establishing correlations between discrimination based on race, class, or gender, denial of education and of decent working conditions, as well as other factors that contribute directly to increased rates of mortality and morbidity. These social determinants may also be defined in human rights terms as deprivation of these health-related rights, which are among the most salient social factors that contribute to healthy lives. The summary below seeks to underscore the function of human rights as determinants of health by highlighting their normative content and their relation to health.

Health-Related Human Rights

Health is profoundly related to human rights both because human right violations have health impacts—such as those on torture survivors—and because human rights concern the dignity, integrity, autonomy of action, and conditions of social functioning of people. Some examples will be provided in each of these areas.

Foremost among the human rights relating to physical and mental integrity is the right not to be arbitrarily deprived of life, which does not rule out death resulting from lawful acts of warfare or capital punishment, although international humanitarian law limits the former, and newer protocols and regional conventions, supported by UN resolutions and social movements, define the latter as a violation of human rights. Special treaties and procedures exist for prevention and repression of torture, disappearance, summary and extrajudicial execution, crimes against humanity, genocide, slavery, racial discrimination, and various forms of terrorism. Most of these are also dealt with in international humanitarian law, which was established to protect victims of armed conflict (injured and shipwrecked combatants, prisoners of war, and civilian populations notably under occupation) and codified in the four Geneva Conventions of 1949 and the Additional Protocols of 1977.

The right to "a standard of living adequate for the health and well-being" of oneself and one's family was defined in the UDHR as including "food, clothing, housing and medical care and necessary social services" as well as "the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond [one's] control." Subsequently, the rights to health, work, safe and healthy working conditions (occupational health), adequate food and protection from malnutrition and famine, adequate housing, and social security (that is, a regime covering long-term disability, old age, unemployment, and other conditions) have been further elaborated by the International Labour Organisation, the UN Commission on Human Rights, and the work of special rapporteurs and treaty bodies.

Dignity tends to be mentioned as both the basis for all human rights and a right per se. The great civil liberties—freedom of oral and written expression, freedom of conscience, opinion, religion, or belief—as well as freedom from arbitrary detention or arrest, rights to a fair hearing and an effective remedy for violations of human rights, and protection of privacy in domicile and correspondence, all support the autonomy of individuals to act without interference from the state or others. A separate but related human right is that of informed consent to medical experimentation, which was included in post-1945 enumerations of rights because of the extensive abuse of that right during World War II.

Equality and nondiscrimination are human rights that are at the same time principles for the application of all other human rights, because they require that all persons be treated equally in the enjoyment of their human rights and that measures be taken to remove discriminatory practices on prohibited grounds. Freedom of movement means the right to reside where one pleases and to leave any country, including one's own, and to return to one's country. The right to seek and enjoy asylum from persecution is also a human right, which has been developed and expanded by international refugee law, the practice of the UN High Commissioner for Refugees, and recent codes relating to internally displaced persons. This right, like many others, is not absolute; limitations may be imposed, for example, in time of epidemic, as long as certain safeguards, defined in human rights law, are observed.

Social well-being depends in large measure on group identity, education, family, culture, political and cultural participation, gender and reproductive rights, scientific activity, the environment, and development, all of which are the subject of specific human rights. The basic human rights texts affirm a limited number of group rights, notably the rights of peoples to self-determination, that is in the terms of the ICCPR and the ICESCR, to "determine their political status and freely pursue their economic, social and cultural development" and to permanent sovereignty over natural resources. They also enumerate the rights of persons belonging to minorities to practice their religion, enjoy their culture, and use their language. Indigenous peoples have defined rights that take into account their culture and special relation to the land.

The right to education is defined in the ICESCR and by the CESCR, as well as specialized instruments of UNESCO. Other rights of the child have been codified in the 1989 Convention on the Rights of the Child. Political rights include the right to run for office and to vote in genuine and periodic elections. Cultural rights refer primarily to the right to participate in the cultural life of the community; the protection of writers, artists, and performers; and the preservation of cultural heritage.

Health issues loom large in human rights standardsetting and policy determination regarding gender and sexual and reproductive rights. The basic human rights texts have been supplemented by a specialized Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) of 1979. Considerable advances in mainstreaming women's rights as human rights were made at international conferences, a 1993 Declaration on Violence against Women, the work of a special rapporteur on this problem, and statements and programs on traditional practices harmful to health, such as female genital mutilation. Reproductive rights include the right of "men and women … to decide freely and responsibly on the number and spacing of their children" (CEDAW, article 16) and "to be informed and to have access to safe, effective, affordable and acceptable methods of family planning of their choice" (ICPD 1994). Various internationally approved programs and plans of action have set out in considerable detail the specific ways in which this right can be realized.

Bioethical concerns overlap with human rights with respect to the right to enjoy the benefits of scientific progress and rights in scientific research. The former refers to the positive and equitable use of scientific advances, while the latter protect freedom to conduct research and disseminate results and the requirement of informed consent of human subjects.

Occasionally, scholars refer to solidarity or thirdgeneration rights to certain global values such as peace, a healthy environment, development, communication, and humanitarian intervention or assistance. Two rights in this category have become more systematically developed and enshrined in authoritative texts: the rights to a healthy environment and to development. The former has been recognized in many national constitutions and in the regional human rights texts. The latter has been recognized in numerous UN resolutions and specifically in a 1986 declaration, as well as in the African Charter on Human and Peoples' Rights. The 1986 Declaration on the Right to Development defines the right to development as "an inalienable human right by virtue of which every human person and all peoples are entitled to participate in, contribute to, and enjoy economic, social, cultural and political development, in which all human rights and fundamental freedoms can be fully realized."

Finally, article 28 of the UDHR proclaims the right of everyone to "a social and international order in which the rights and freedoms set forth in this Declaration can be fully realized." This right is perhaps the broadest but also the most significant in making human rights the ordering criterion for national societies and international relations. The required social order suggests a democratic constitutional regime in which human rights of all categories are recognized in law and effectively observed in practice. It also suggests that international relations provide support for global efforts to further human rights and to establish means of accountability for persons and groups to obtain redress from countries that fail to fulfill their human rights obligations.

The Enforcement and Implementation of Human Rights

The term enforcement refers to coerced compliance, whereas implementation refers to supervision, monitoring, and the general effort to hold duty-holders accountable. Implementation is further subdivided into promotion—preventive measures to ensure respect for human rights in the future—and protection—responses to violations that have occurred in the past. The means and methods of implementation may be summarized in three forms of promotion and five forms of protection.

Promotion of human rights is achieved through developing awareness, standard-setting and interpretation, and creating national institutions. Awareness of human rights is a precondition to acting on them and is advanced though dissemination of knowledge and human rights education at all levels, for which the UN proclaimed a decade of action for the period from 1995 to 2004. Standard-setting means the drafting of human rights texts, for which the UN Commission on Human Rights, established in 1946, plays a central role, along with other UN and regional organizations. These norms are interpreted by various international courts and treaty-monitoring bodies. The third preventive or promotional means of implementation is national institution-building, which includes improvements in the judiciary and law enforcement institutions and the creation of specialized bodies such as national commissions for human rights and offices of an ombudsman.

The protection of human rights involves a complex web of national and international mechanisms to monitor, judge, denounce, and coerce states, as well as to provide relief to victims. Monitoring compliance with international standards is carried out through the reporting and complaints procedures of the UN treaty bodies and regional human rights commissions and courts. Special procedures of working groups and special rapporteurs study countries or issues, taking on cases of alleged violations, reporting back on their findings, and requesting redress from governments. Among the thematic rapporteurs, one is specifically mandated to study the right to health, and others deal with a variety of health-related issues. The second means of protection is adjudication of cases by fully empowered human rights courts, the main ones being the European Court of Human Rights of the Council of Europe, the American Court of Human Rights of the Organization of American States (OAS), and the African Union's African Court of Human and Peoples' Rights, which was not yet functioning in mid-2003.

Political supervision refers to resolutions judging the policies and practices of states adopted by the Commission on Human Rights, the UN General Assembly, the Committee of Ministers of the Council of Europe, the Assembly of OAS, and other political bodies that denounce governments for violations of human rights and demand that they redress the situation or provide compensation to the victims.

The use of coercion is available only to the UN Security Council, which can use its powers under Chapter VII of the UN Charter to impose sanctions, cut off communications, create ad hoc criminal tribunals, and authorize the use of force by member states or the deployment of UN troops to put an end to a threat to international peace and security, which it has on occasion interpreted to include human rights violations (e.g., Haiti, Somalia, Bosnia, Iraq). This forceful means of protecting human rights is complex and dangerous and can have harmful health consequences, as has been the case with sanctions imposed on Haiti and Iraq. If used properly it can be a modern and legitimate form of the nineteenth-century doctrine of humanitarian intervention, according to which states use armed force to halt atrocities committed in another state while respecting the principles of necessity, proportionality, disinterestedness, and collegiality. The North Atlantic Treaty Organization (NATO) sought to employ such a doctrine in Kosovo in 1999 but without the necessary authorization from the Security Council engaged in what most scholars consider a legitimate but illegal use of force. Each case of action (e.g., no-fly zones over Iraq imposed in 1991) or inaction (e.g., Rwanda in 1994) regarding the use of armed force for human rights purposes has complex ethical and legal difficulties.

The final means of responding to human rights violations is through humanitarian relief or assistance. Provision of food, blankets, tents, medical and sanitary assistance, and other forms of aid saves lives and improves the health of persons forcibly displaced often as a result of large-scale human rights violations. Refugees and internally displaced persons come under the protection of the UN High Commissioner for Refugees (UNHCR), which deploys massive amounts of aid, along with the International Committee of the Red Cross, UNICEF, World Food Program (WFP), United Nations Development Programme (UNDP), the UN Office for the Coordination of Humanitarian Affairs, and other agencies, as well as major NGOs such as Oxfam International, CARE, and the International Rescue Committee.

Conclusion

Every country in the world has accepted that human rights are universal, but all are challenged, in one way or another, to achieve progress with respect to those rights they neglect, however proud they may be of achievements with respect to other rights. Thus Cuba may be rightfully proud of its record on rights to health and education but is challenged to do more for political and civil rights; the United States may pride itself on the degree to which freedom of expression or civil rights are guaranteed but is challenged to take seriously economic, social, and cultural rights, including universal access to healthcare. The normative content of the corpus of human rights standards is probably the most complete catalogue of the determinants of physical, mental, and social well-being. The methods of implementation or intervention to ensure compliance are not directly linked to medical and health practice or to health policy, as is the case with bioethics. They nevertheless constitute a potentially rich framework for the improvement of health policy and practice, which is the objective of the emerging subfield of health and human rights.

stephen p. marks

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