Introduction to Human Rights | Lesson 4: “The Historical Evolution of Human Rights”

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
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