What a Human Right Is
Chapter Two
Syllabus topic 1, "Interrelationship of Science, Technology and Human Rights"
Pages 5 to 8 of 951
In one line
A human right is a claim you have simply because you are a human being, which the law recognises rather than creates, and which somebody else has a duty to respect.
In the wording a student can write in an exam: a human right is a claim inherent in the human person by virtue of his or her humanity alone, independent of nationality, status, merit or the recognition of any particular State. It is universal, in that it belongs to everyone; inalienable, in that it cannot be given away or taken; indivisible, in that its various parts cannot be traded against one another; and interdependent, in that the enjoyment of one commonly depends on the enjoyment of others. Its distinguishing feature in law is that it imposes duties, chiefly on the State.
Why the law has this at all
Ordinary legal rights come from somewhere: a contract, a statute, a decree. They can be created and they can be repealed. That is convenient until the body doing the creating and repealing is the body you need protection from.
The twentieth century supplied the demonstration. What was done in Germany between 1933 and 1945 was in large part done under law, by a State using its own legal machinery against its own population. A conception of rights that depends on what the State has granted has nothing to say about that. So the framework built after 1945 rests on a different claim: that certain entitlements exist independently of any State's recognition, and that a State which denies them is in breach of an obligation it did not choose.
That is the claim behind the opening words of the Universal Declaration of Human Rights, which speaks of the recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family. The verb is recognition. The Declaration does not purport to confer the rights; it purports to notice them.
The four characteristics, taken apart
Universal. The right belongs to everyone, everywhere. This is the characteristic most often contested, and the contest matters for this paper: a later chapter takes up the argument that the framework reflects one civilisation's assumptions and is applied unevenly.
Inalienable. You cannot validly surrender the right, and it is not forfeited by bad behaviour. A convicted prisoner retains the right not to be tortured. This characteristic does real work in Module III, because it is the reason a research participant's consent does not make everything permissible: some protections cannot be waived.
Indivisible. Civil and political rights on the one hand and economic, social and cultural rights on the other are not two grades of entitlement. This matters here because the right to enjoy the benefits of scientific progress sits in the second group, and the older habit of treating that group as aspirational is exactly what left the right to science undeveloped for fifty years.
What a Human Right Is
Interdependent. Rights depend on each other. The right to health is worth little without access to information; privacy is worth little without an effective remedy.
The three generations
The classification is a teaching device, not a legal hierarchy, and it is commonly attributed to Karel Vasak, who borrowed the French revolutionary triad.
| Generation | Content | Character | Where it appears |
|---|---|---|---|
| First | Civil and political: life, liberty, fair trial, expression, privacy, freedom from torture | Chiefly negative: the State must abstain | ICCPR 1966; Part III of the Constitution of India |
| Second | Economic, social and cultural: work, health, education, science, an adequate standard of living | Chiefly positive: the State must provide, progressively | ICESCR 1966; Part IV of the Constitution |
| Third | Solidarity rights: development, peace, a healthy environment, common heritage | Collective; held by peoples as much as persons | Declarations rather than treaties |
For this paper the classification is worth knowing for one reason above all. The right to science straddles the generations. Its freedom limb, the freedom indispensable for scientific research, behaves like a first generation right and asks the State to keep out. Its benefit limb asks the State to spend money and behaves like a second generation right. Its co-operation limb, and the idea that scientific knowledge is a common heritage, behave like third generation rights. A student who can say that has understood something that the printed topic label only implies.
Who owes the duty
A right without an identified duty bearer is a slogan. The modern formulation gives the State three duties, and the three recur throughout this book.
- Respect. The State must not itself violate the right. It must not conduct experiments on prisoners.
- Protect. The State must prevent third parties from violating it. It must regulate the private laboratory and the private hospital.
- Fulfil. The State must take positive steps to realise it. It must fund research, train scientists and make the results available.
The second duty is what makes this a legal subject rather than a moral one. Most technology today is developed and owned privately. If the framework reached only the State's own conduct, it would reach almost nothing that matters. It is the duty to protect that makes a State answerable for what a company does with a genetic database.
A worked example
A private fertility clinic in Mumbai advertises that it can select embryos by sex. A couple pays for the service.
Whose right is engaged? The unborn child has no legal personality, so the analysis does not start there. It starts with the equality rights of women as a class, which sex selection attacks at scale, and with the rights of the woman undergoing the procedure.
What a Human Right Is
Which duty is engaged? Not respect, because the State is not doing it. Protect is the operative duty: the State must prevent the private actor from doing it. That is precisely what the PCPNDT Act of 1994 does, and Module II examines how.
Would consent answer the complaint? No, and this is where inalienability does its work. The couple's consent cannot cure a harm whose victim is not the couple.
What it does NOT mean
It does not mean rights are absolute. Almost every right may be limited. What the framework requires is that a limitation be prescribed by law, pursue a legitimate aim, and be proportionate. Module IV turns that requirement into a four-part test.
It does not mean a right is only what a court will enforce. Much of the material in this book is in declarations that no court applies directly. That makes them weak, not meaningless, and Module IV's closing chapters ask honestly how weak.
It does not mean the State is the only actor. It is the primary duty bearer, but the instruments in Module III address researchers, institutions and corporations directly.
Quick revision
- A human right is inherent in the person, recognised rather than conferred, and imposes duties chiefly on the State.
- Four characteristics: universal, inalienable, indivisible, interdependent.
- Three generations: civil and political; economic, social and cultural; solidarity. The classification is a teaching device.
- The right to science straddles all three, which is why it is hard to classify and easy to neglect.
- Three duties: respect, protect, fulfil. The duty to protect is what reaches private technology.
Test yourself
1. Why does it matter that the Universal Declaration speaks of "recognition" rather than of grant? Because a right that the State grants is a right the State can withdraw, and the framework was built after a period in which a State used its own law against its own people. Recognition asserts that the entitlement exists independently of the State, so that denying it is a breach rather than a lawful policy choice.
2. Which of the three duties makes a State answerable for a private laboratory's conduct? The duty to protect. Respect governs the State's own conduct and fulfil requires positive provision; it is the duty to protect that requires the State to prevent third parties from violating rights, and it is the duty that makes regulation of private technology a human rights obligation rather than mere policy.
3. Explain why the classification into generations is awkward for the right to science. Because the right has limbs belonging to each generation at once. The freedom of research is a classic first generation liberty requiring abstention; the entitlement to the benefits of scientific progress is a second generation claim requiring expenditure; and international co-operation and the notion of a common heritage are third generation solidarity ideas. No single generation contains it.
What a Human Right Is
4. A research participant signs a form agreeing to accept any risk whatever. Is that effective? Not entirely. Inalienability means some protections cannot be waived, and the instruments in Module III do not treat consent as making everything permissible. Consent is necessary, but the research must independently be ethically acceptable, which is what an ethics committee exists to decide.
The rest of this subject
These notes are cut from the University's printed syllabus. Open the syllabus itself, or the past papers, for the same subject.