What Are Human Rights?

The central claim is universality. A human right is not earned, granted or conditional on citizenship, good behaviour or contribution. On this view a government does not create your right to a fair trial, it recognises it.

This is a strong philosophical position and it has been argued about for centuries. What made it practically significant was the decision after 1945 to write it into international agreements with actual institutions behind them.

The Universal Declaration of Human Rights was adopted by the United Nations General Assembly in 1948, drafted in the aftermath of the war and the Holocaust. It was a declaration rather than a treaty, so it was not directly binding.

It was later given legal force through two treaties in 1966, one covering civil and political rights and one covering economic, social and cultural rights. Regional systems developed alongside, including the European Convention on Human Rights with its own court.

Human rights are usually grouped into broad families:

• •Civil rights, such as freedom from torture and the right to a fair trial
• •Political rights, such as voting, assembly and free expression
• •Economic rights, such as fair working conditions
• •Social rights, such as education, health and an adequate standard of living
• •Cultural rights, including participation in cultural life and language use

Not all rights work the same way. A small number are absolute and can never be limited for any reason, including the prohibition on torture and on slavery.

Most rights are qualified. Freedom of expression, for instance, can be restricted where necessary and proportionate to protect other interests such as public safety or the rights of others. Understanding this distinction prevents the common mistake of treating any limit on any right as automatically a violation.

This is the honest weak point. International human rights law depends heavily on states agreeing to be bound and on reporting, monitoring and diplomatic pressure. There is no global police force.

Regional courts can be more effective, with binding judgments that states usually comply with. Domestic incorporation matters most of all: rights enforceable in a country's own courts are worth far more in practice than those existing only in a treaty. There are also genuine debates about cultural specificity and about whether economic and social rights are enforceable in the same way as civil ones.

The drafting committee was more international than the document's critics sometimes assume. It was chaired by Eleanor Roosevelt and included the Chinese diplomat and philosopher Peng Chun Chang, the Lebanese philosopher Charles Malik, and the French jurist Rene Cassin.

Chang in particular argued for language that would be acceptable across philosophical traditions, pressing for wording not tied to any single religious or cultural framework. Eight states abstained from the final vote rather than opposing it, including the Soviet bloc, Saudi Arabia and South Africa, and the reasons they gave still feature in debates about universality today.

The post-war framework drew on older documents, though none claimed quite the same thing. Magna Carta in 1215 limited the power of the English king, but mainly protected barons and free men rather than everyone. The English Bill of Rights of 1689, the American Declaration of Independence in 1776 and the French Declaration of the Rights of Man and of the Citizen in 1789 all spoke of rights in broader terms. Yet each operated within a single nation, and in practice each coexisted with slavery, restricted voting or the exclusion of women.

Modern human rights law also spells out what states must actually do, which lawyers often divide into three duties. The duty to respect means the state must not violate a right itself, for example by torturing a prisoner. The duty to protect means it must stop others from violating rights, for instance by investigating violent crime. The duty to fulfil means taking positive steps, such as providing schooling so that the right to education is real. This framework explains why a government can breach human rights through inaction as well as through action.

A famous example shows how human rights law can develop through cases. In 1978 the European Court of Human Rights decided Tyrer v United Kingdom, brought on behalf of a teenager on the Isle of Man who had been sentenced to be birched as a judicial punishment. Many local people supported the practice. The court nonetheless ruled that it was degrading punishment, breaching the Convention's ban on torture and inhuman or degrading treatment. It also described the Convention as a living instrument, to be read in the light of present-day conditions rather than frozen at the time it was written.

For qualified rights, courts usually ask a structured series of questions rather than simply weighing feelings. Is the restriction set out in law? Does it pursue a legitimate aim, such as public safety or protecting others' rights? Is it rationally connected to that aim? Could a less intrusive measure achieve the same result? And does it strike a fair balance between the individual and the community? A ban on all protest anywhere in a city would probably fail, while a limited buffer zone outside a hospital entrance might pass. This step-by-step method is known as proportionality.

Human rights treaties anticipate that governments will face wars, insurrections and other crises, and they include a controlled safety valve. Under the International Covenant on Civil and Political Rights and the European Convention on Human Rights, a state may temporarily derogate from, or suspend, some of its obligations during a public emergency that threatens the life of the nation. It must declare this formally, notify the relevant international body, and limit its measures to what the situation strictly requires. Derogation is meant to be temporary and supervised, not a blank cheque.

Certain rights cannot be suspended even then. Under the European Convention these include the ban on torture and inhuman treatment, the ban on slavery, the rule that nobody can be punished for an act that was not a crime when it was committed, and the right to life, apart from deaths resulting from lawful acts of war. Courts can review whether an emergency was real and whether the response was proportionate. In 2004 the House of Lords ruled that the indefinite detention without trial of foreign terrorism suspects, introduced under a UK derogation after 2001, was discriminatory and disproportionate.

The United Kingdom shows how domestic incorporation works in practice. The Human Rights Act 1998, in force from 2000, made most rights in the European Convention directly usable in British courts. Judges must read legislation in a way that is compatible with those rights wherever possible. If they cannot, the higher courts may issue a declaration of incompatibility. This does not strike the law down, since Parliament remains sovereign, but it puts political pressure on ministers to act. In Bellinger v Bellinger in 2003, for example, the House of Lords declared marriage law incompatible because it ignored a transgender person's acquired gender, and the Gender Recognition Act 2004 followed.

The same system also shows the limits. In Hirst v United Kingdom in 2005, the European Court of Human Rights ruled that Britain's blanket ban on voting by all convicted prisoners breached the Convention. Successive governments resisted, Parliament debated the issue repeatedly, and for more than a decade the judgment went largely unimplemented. In 2017 the government proposed a modest change, allowing prisoners released on temporary licence to vote, which the Council of Europe's Committee of Ministers accepted the following year. The episode shows that international judgments depend on governments choosing to comply, and that compliance can be slow, partial and negotiated rather than automatic.

Human rights are entitlements held by everyone simply as a human being, formalised internationally after 1945, and their real force depends far more on domestic courts than on international declarations.