the four waves of human rights prof. mark e. wojcik the john marshall law school chicago usa

The Four Waves of Human Rights

Prof. Mark E. WojcikThe John Marshall Law

SchoolChicago USA

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1. Recognition

2. Definition and Codification

3. Enforcement and Remedies

4. Prevention

The Four Waves of Human Rights

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Recognition1.

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How are human rights recognized?

Where do they come from? Who (if anyone) grants human rights?

Recognition

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In 1979, Prof. Karel Vašák, First Secretary-General of the International Institute of Human Rights in Strasbourg, proposed dividing human rights into “three generations.”

Recognition: Three Generations

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First-generation human rights are civil and political rights.

They are sometimes called “negative” rights.

They prevent a state from interfering with rights of individuals.

Recognition: First Generation

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Freedom of speech Freedom of the press Freedom of assembly Freedom of religion Right to a fair trial Right to vote

Examples

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Various national and international documents:  Magna Carta (1215) (England) Claim of Right Act (1689) (Scotland) Bill of Rights (1689) (England) Bill of Rights (1789) (U.S. Constitution) Universal Declaration of Human Rights articles 3

to 21 (1948) (“UDHR”) International Covenant on Civil and Political Rights

(1966)(“ICCPR”)

Where Found?

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Second-generation rights are fundamentally economic, social, and cultural rights.

They are sometimes called “positive” rights because they may require the government to spend money.

They promote equal conditions, opportunities, and treatment (to the extent of available resources).

Recognition: Second Generation

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These were also sometimes called “red” rights.

Because they depend on limited government resources, these rights may be recognized on a progressive basis.

Recognition: Second Generation

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Right to education Right to housing Right to health care Right to work Right to free time Right to organize and bargain

collectively Right to unemployment benefits or

social security

Examples

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Various national and international documents: Universal Declaration of Human Rights

articles 22 to 27 (1948) (“UDHR”) International Covenant on Economic, Social,

and Cultural Rights (1966) (“ICESCR”)

Where Found?

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Third-generation human rights go beyond the mere civil and social.

They are aspirational.

They are sometimes called “green rights.”

Recognition: Third Generation

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Right to economic and social development

Right to a healthy environment Right to natural resources Right to communicate Right to participate in cultural heritage Rights to intergenerational equity and

sustainability

Examples

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Third-generation human rights can be found in many progressive international law documents: Stockholm Declaration of the U.N.

Conference on the Human Environment (1972)

Rio Declaration on Environment and Development (1992)

Other “soft law” documents

Where Found?

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Definition and Codification2.

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The power to define is the power to control.• Which definitions are binding?

• Which definitions are persuasive?

Who is Bound by a Definition?

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The protection of human rights requires precise terms:(1) to know what rights are protected; and (2) to know what defenses are allowed to claimed violations.

Definition and Codification

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A national court? A national legislature (by statutes or a

constitution)? A group of nations (by treaty)? An international tribunal? Civil society (world opinion)? Religious institutions? Four law professors sitting together on a

panel? A room full of European law students?

Who Has the Right to Define?

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The Future of European Human Rights Law

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Examples

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Example: Genocide

Is “genocide” only the act or failure to act?

Or is a particular mental state required?

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Example: Victim

Is a “victim” only someone directly harmed by an act (or failure to act)?

Or does the word “victim” include other family members (or others in the community, or nation, or region)?

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Example: Privacy

Is there a fundamental right to homosexual sod0my?

Bowers v. Hardwick (1986)

Is there a fundamental right to privacy?

Lawrence v. Texas (2003)

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Example: Marriage

Is there a fundamental right to marriage?

Is there a fundamental right to same-sex marriage?

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Enforcement and Remedies

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Recognition and declaration of harmCriminal action against perpetrator

Civil action against perpetrator

Various Ways to Enforce

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Truth Commission

International Human Rights Tribunal

Criminal Court (National or International )

Civil Court

Other Administrative Tribunal

Various Places to Enforce

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Human rights can also be enforced in places other than courts• U.N. Resolutions• Legislative acts• Grant of asylum• Recognition by civil society

Various Places to Enforce

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Declaration

Injunction

Imprisonment and Fines

Money Damages

Various Remedies

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Prevention4.

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The best “solution” for human rights violations is prevention.

Prevention

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Legislation

Education

Mediation

Protection

Prevention

Comments and Questions?

The Four Waves of Human Rights

Prof. Mark E. WojcikThe John Marshall Law School

315 S. Plymouth CourtChicago, IL USA

+1-312-987-2391intlawprof@gmail.com