Story: Human rights
Page 1 – Human rights: the background
Human rights are the rights and freedoms that every person ought to enjoy. Civil and political rights largely define what governments should not do to people, such as treat them cruelly, detain them arbitrarily or restrict their expression. Social and economic rights define what governments ought to do for people, such as provide them with health care, education and welfare.
There is no universally agreed and definitive list of all human rights.
History of the human-rights idea
The expression ‘human rights’ was first used by Allied leaders during the Second World War, when condemning Nazi atrocities. In 1948 the United Nations General Assembly proclaimed the Universal Declaration of Human Rights (UDHR).
New Zealand Magna Carta
The Magna Carta remains part of New Zealand law in the 2000s. One of the most important clauses of the Magna Carta is chapter 29, which states, ‘we will not deny or defer to any man either justice or right’. This is the root of laws such as the New Zealand Bill of Rights Act 1990, which guarantees the right to trial without undue delay. The Magna Carta remains an important symbol of the rights of the citizen in relation to the state. The Treaty of Waitangi has sometimes been referred to as ‘the Māori Magna Carta’.
The idea that human beings enjoy rights is much older than the United Nations. An early English rights document is the Magna Carta, the ‘Great Charter’, of 1215. The English barons listed their grievances against King John, along with rights they believed they should enjoy.
A further key rights document in English history is the Bill of Rights of 1688. This document declared that the monarch had no power to dispense with the law without the consent of Parliament. Members of Parliament were to have freedom of speech within Parliament. All persons were to be free from cruel and unusual punishments as well as excessive bail. Establishing Parliament as the supreme authority was seen as a means of protecting human rights.
Parliament is the ultimate guardian of human rights in New Zealand. Yet there is a real risk that a majority may make laws that unfairly affect a particular minority. Some therefore argue that Parliament’s law-making powers should also be constrained by a Bill of Rights – so that a law unreasonably infringing any person’s rights can be ruled invalid by a court.
Positive and negative rights
Rights can be classed as either negative or positive. Negative rights are observed when the state merely refrains from acting – by not interfering with expression, liberty, conscience and religion. These correspond to basic human liberties. Positive rights are those that require some type of action, such as providing health care and education.
Civil and political rights are often, but not always, negative rights. The right to a fair trial may be understood as a negative right (that no person should be unfairly tried), but it is better described as the right to a fair system for trials. This certainly involves state action and can be very costly, requiring a comprehensive court system with independent judges, courtrooms and law libraries, along with legal aid and interpreters for those who need them.
Similarly, the right to vote is a civil and political right. It plainly requires the creation of a whole system for elections, including voter education, and is also very costly.
Not many countries include social and economic rights in their bills of rights and written constitutions, as these rights do not lend themselves to enforcement by courts (unlike civil and political rights). Social and economic rights require the allocation of budgets, which is not a judicial function. Some people consider that courts should be empowered to rule on social and economic rights. They point out that even civil and political rights carry financial implications, yet courts may enforce them.