Human rights

Question 1

Human rights: key things to know

Answer 1

1. Human rights are the basic rights and freedoms that belong to every person in the world, from birth until death
2. They apply regardless of where you are from, what you believe, or how you choose to live your life
3. They can never be taken away, although they can sometimes be restricted – for example, if a person breaks the law, or in the interests of national security or public health
4. These basic rights are based on shared values like dignity, fairness, equality, respect, and independence
5. These values are defined and protected by law.

Question 2

Historical roots of human rights - PRECURSOR HUMAN RIGHTS DOCUMENTS

Answer 2

The precursors of 20th century Human Rights documents.

Documents asserting individual rights, such as the:

1. The Magna Carta (1215)
2. The English Bill of Rights (1689)
3. The French Declaration on the Rights of Man and Citizen (1789)
4. The US Constitution and Bill of Rights (1791)

Question 3

Many of the PRECURSOR documents, when originally translated into policy, excluded WHICH KINDS OF PEOPLE?

Answer 3

They excluded women, people of colour, and members of certain social, religious, economic, and political groups.

Nevertheless, oppressed people throughout the world have drawn on the principles these documents express to support revolutions that assert the right to self-determination.

Question 4

The Birth of the United Nations

Answer 4

The idea of human rights emerged stronger after World War II. The extermination by Nazi Germany of over six million Jews, Sinti and Romani (gypsies), homosexuals, and persons with disabilities horrified the world. Trials were held in Nuremberg and Tokyo after World War II, and officials from the defeated countries were punished for committing war crimes, “crimes against peace,” and “crimes against humanity.”

Question 5

Governments committed themselves to establish the United Nations, with the primary goal of what?

Answer 5

The primary goal of bolstering international peace and preventing conflict.

People wanted to ensure that never again would anyone be unjustly denied life, freedom, food, shelter, and nationality.

Question 6

. The essence of these emerging human rights principles was captured in President Franklin Delano Roosevelt’s 1941 State of the Union Address when he spoke of a world founded on four essential freedoms:

Answer 6

freedom of speech and religion and freedom from want and fear. The calls came from across the globe for human rights standards to protect citizens from abuses by their governments, standards against which nations could be held accountable for the treatment of those living within their borders. These voices played a critical role in the San Francisco meeting that drafted the United Nations Charter in 1945.

Question 7

The four essential freedoms?

Answer 7

1. freedom of speech
2. freedom of religion
3. freedom from want
4. freedom from fear

Question 8

Where do Human Rights come from?

Answer 8

They come from The Universal Declaration of Human Rights.

On 10 December 1948.

The Universal Declaration of Human Rights was adopted [vote for by] by 56 members of the United Nations.

The vote was unanimous, although eight nations chose to abstain.

Question 9

The Universal Declaration of Human Rights aka the international Magna Carta extended the revolution in international law ushered in by the United Nations Charter –

Answer 9

This declaration says,

1. how a government treats its own citizens is now a matter of legitimate international concern
2. The treatment of the citizens is not simply a domestic issue.
3. It claims that all rights are interdependent and indivisible.

Its Preamble eloquently asserts that:

-Recognition of the inherent dignity and equal and inalienable rights of all members of the human family is the foundation of freedom, justice, and peace in the world.

Question 10

The Africa Charter on Human and Peoples Rights AKA Banjul Charter.

Answer 10

It is an international human rights instrument that is intended to promote and protect human rights and basic freedoms in the African continent.

-Oversight and interpretation of the Charter is the task of the African Commission on Human and Peoples’ Rights, which was set up on 2 November 1987 in Addis Ababa, Ethiopia and is now headquartered in Banjul, Gambia

Question 11

Subsequent Human Rights Documents Sources of Human Rights.

Answer 11

-In addition to the covenants in the International Bill of Human Rights, the United Nations has adopted more than 20 principal treaties further elaborating human rights. These include conventions to prevent and prohibit specific abuses like torture and genocide and to protect especially vulnerable populations, such as:

1. refugees (Convention Relating to the Status of Refugees, 1951),
2. women (Convention on the Elimination of All Forms of Discrimination against Women, 1979), and
3. children (Convention on the Rights of the Child, 1989)

Question 12

As of 1997, the United States has ratified only these conventions (5)

Answer 12

1. The Convention on the Elimination of All Forms of Racial Discrimination
2. The Convention on the Prevention and Punishment of the Crime of Genocide
3. The Convention on the Political Rights of Women
4. The Slavery Convention of 1926
5. The Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.

Question 13

Human rights in South Africa.

Answer 13

Constitutional development in the 1990s

In 1990, mounting international and domestic pressure, and, growing evidence and realization among the white political class that the apartheid system was unsustainable, forced the ruling party at the time (NP) towards dismantling the system. 
The first step was the lifting of the ban on political organizations - in particular, the African National Congress (ANC) and, the release of veteran opposition leader, Nelson Mandela, after 27 years in prison.

Question 14

What followed after the lifting of the ban on Political organizations?

Answer 14

This was followed by a repeal of the apartheid legislation. Between these developments and 1993 and against a backdrop of intense political violence, the NP, the ANC, and other political organizations, engaged in a series of negotiations under the umbrella of the Convention for a Democratic South Africa (CODESA).

These negotiations eventually led to the adoption of an interim constitution to govern the transition to a new South Africa. This came after an all-white referendum in which over 60 percent of whites voted in favor of absolute reforms.

Question 15

The interim constitution of 1993

Answer 15

Promulgated by the Constitution of South Africa Act of 1993, it provided for a Government of National Unity, a five-year transition. It also provided for a Constituent Assembly consisting of a combined Senate and National Assembly to draft a new constitution. It is under the terms of this constitution that Mandela would become president in May 1994. This constitution remained in force until 1996 when the current constitution of South Africa was adopted

Question 16

The constitution of 1996

Answer 16

Promulgated as the Constitution of South Africa Act, it has been described as a masterpiece of post-conflict constitutional engineering in the post cold war era. Designed in the context of South Africa’s transition to a democratic rule which started with the release of Mandela in February 1990, the constitution completely reconfigured South Africa’s political institutions, injecting new dynamics and transformative changes across its political landscape. It effectively ended decades of oppressive white minority rule. The constitution has since been amended sixteen times but remains the basic law of the nation

Question 17

Equality, Human dignity and right to life

Answer 17

1. The right to equality
   - This right is the most violated one in South Africa, according to a 2017 report by the South African Human Rights Commission. The right states that everyone is equal and must be treated equally. No one has the right to discriminate against you based on your race, gender, sex, marital status, ethnic or social origin, color, sexual orientation, age, disability, religion, conscience, belief, culture, language or birth among others
2. Human dignity
   - Everyone has inherent dignity and the right to have their dignity respected
3. Right to Life
   - Everyone has a right to life and nobody, not even the state, has the right to take a life. This means that no person can be sentenced to death by the courts.

Question 18

Right to Freedom and security

Answer 18

-This means that no one can be put in prison without good reason; be detained without trial; be tortured in any way or be treated or punished in a cruel, inhuman, or degrading way. It means that all humans have a right to be free from all forms of violence from either public or private sources.

Arrested, detained, and accused persons:
-Any arrested person has a right to a lawyer and cannot be forced to speak or to make a confession. Prisoners must be kept in proper living conditions and may have visits from family members.

Question 19

Right to personal privacy

Answer 19

No one, not even the government, has the right to search your house or property or even have your possessions seized without following the correct legal channels. The government cannot infringe on the privacy of your communication - this includes opening your mails or listening to your phone calls.

Question 20

Expression, Association and Political rights

Answer 20

1. Freedom of Expression
   - South Africans have the freedom to say, write or print what they want, but this right must never violate anyone else’s right or break the law in any way.
2. Freedom of Association
   - Everyone has the right to associate with anyone they want to associate with. This means people have a right to associate with a trade union, a political party, or any other club or association, including religious denominations and organizations, fraternities, and sports clubs.
3. Political Rights
   -Every citizen has the right to form a political party; to participate in the activities of, or recruit members for a political party, and to campaign for a political party or cause.
   Every citizen has the right to free, fair and regular elections for any legislative body established in terms of the Constitution and every adult citizen has the right ­to vote in elections for any political party, and to do so in secret.
   Every citizen can stand for public office and, if elected, hold office.

Question 21

Education, Slavery servitude and forced labour

Answer 21

1. Education
   -Everyone has the right ­to a basic education, including adult basic education; and to further education.
   Healthcare, food, water, and social services
   -Everyone has the right to have access to health care services, including reproductive health care; sufficient food and water; and social security, including, if they are unable to support themselves and their dependents, appropriate social assistance.
2. Slavery, servitude and forced labor
   - You have a right to choose who you want to work for and the kind of work you do, and you must be paid for your work. No one can be forced to work for someone else.

Question 22

The core principles of Human rights

Answer 22

1. Right to equality
2. Right to HUman dignity
3. Right to life
4. Freedom and security
5. Personal privacy
6. Freedom of expression
7. Freedom of association
8. Political rights
9. Right to an education
10. Slavery, servitude and forced labor
11. Citizenship
12. Housing
13. Children

Question 23

Citizenship, Housing, and Children

Answer 23

1. Citizenship
   No one’s South African citizenship can ever be taken away from them.
2. Housing
   Everyone has the right to have access to adequate housing. The government cannot take your house away from you or evict you from your home if you own it.
3. Children
   All children have the right to parental care, shelter, and food. Children may not be neglected or abused or forced to work.

Question 24

Human rights and Medical Practice

Answer 24

• the concept of “human rights in patient care” refers to the application of human rights principles to the context of patient care
• unlike “patients’ rights,” which is rooted in a consumer framework, this concept derives from inherent human dignity and applies universal, legally recognized human rights principles, protecting both patients and providers and admitting of limitations that can be justified by human rights norms.
• the human rights lens provides a means to examine systemic issues and state responsibility
• human rights principles that apply to patient care include both the right to the highest attainable standard of health as well as civil and political rights ranging from the patient’s right to be free from torture and inhumane treatment to liberty and security of a person.
• It also focuses attention on the right of socially excluded groups to be free from discrimination in the delivery of health care
• critical rights relevant to health care providers include freedom of association and the enjoyment of decent work conditions.

Question 25

Two fundamental differences between human rights and medical ethics:

Answer 25

• the focus is on state-level action rather than a person-to-person relationship.
• the issue of benevolence, which is important in the theory of biomedical ethics but has no place in human rights discourse. Rights do not depend on the empathy of other actors.

Question 26

The conflict between human rights and medical ethics

Answer 26

The conflict between human rights and medical ethics has been in court cases where the rule of law requires medical confidentiality to be breached  medical ethics require that information be protected as far as possible. Human rights, however, demand that justice takes priority and despite great reluctance, doctors may be obliged to disclose confidential information to a court.

Question 27

Human rights and medical ethics are parallel mechanisms in that

Answer 27

human rights working at the socio-political level and medical ethics at the level of the doctor-patient relationship

Question 28

Historical challenges to human rights in South Africa (2012)

Answer 28

Three worrisome developments in particular emerged:

1. the adoption of the Protection of State Information Bill by the National Council of Provinces in 2012, which would most likely be approved by the National Assembly in 2013, threatens freedom of expression and the free exchange of information
2. the tragic killings at Lonmin Platinum Mine in August 2012 amounted to the failure to uphold and protect the security of the person and the right to life
3. the proposed Traditional Courts bill would be a blow to the right to equality if it is promulgated into law

Question 29

Historical challenges in SA

Answer 29

South Africa faced one of its most challenging years in 2012 for protecting human rights since the birth of constitutional democracy in 1994 according to Human Rights Watch (World Report 2013)

“South Africa has come a long way since its first democratic election in 1994, but 2012 has demonstrated how fragile that democracy can be.”

Question 30

Categories of Rights

Answer 30

1. Absolute rights
2. Limited rights
3. Qualified rights

Question 31

Absolute rights

Answer 31

Absolute rights are not subject to limitations or qualifications. For example, the right not to be tortured is considered to be an absolute right that cannot be restricted under any circumstances.
Qualified rights

Question 32

Limited rights

Answer 32

Limited rights
Certain rights are limited, in the sense that their enjoyment may be curtailed in specific circumstances. For example, the right to personal liberty/freedom can be limited if one is convicted of a criminal offense in accordance with the provisions of the Convention related to fair trials and the rule of law.

Question 33

Qualified rights

Answer 33

Qualified rights are those that can be limited under more general circumstances.

for example, to balance the potentially conflicting rights of different parties or to reconcile individual rights with common goods. These include, among others, the right to respect for private and family life and the right to freedom of expression

Question 34

Indivisibility of human rights

Answer 34

-Basic rights would be those that ensure self-respect and survival and are therefore necessary for the guarantee of all others

Two types of basic rights:

1. the rights related to security and
2. the ones related to subsistence

Security rights refer to civil rights as those that protect the human being from torture, rape, assault, and death (right to life and dignity) - [Absolute rights]

Subsistence rights would correspond to economic, social, and cultural rights such as access to water, food, clothing, shelter, and health care

=taken together, these rights would be mutually indispensable and equally necessary for the guarantee of all other rights. Therefore, all other non-basic rights would rely on these rights.

Question 35

Indivisibility of human rights 2.0

Answer 35

• the full rights’ accomplishment must be approached from the indivisibility and interdependence point of view. Failure to implement some human rights can cause harm to others, in which case it is important to check the damages and risks that can be created when certain rights are not guaranteed. The relationship between access to water, sanitation, and health care and the accomplishment of other rights is evident when the homeless report that the lack of these services often prevents them from attending public establishments.
• marginalized and excluded populations, who have their rights violated, have greater difficulty participating in decision-making processes. Thus, one can see the importance of the concepts of indivisibility and interdependence of human rights.
• “Denial of economic freedom, in the form of extreme poverty, renders the person vulnerable to violations of other forms of freedom. The denial of economic freedom implies the denial of social and political freedom “
• human rights were created to protect the most vulnerable people.

Question 36

Limitation on claiming rights.

Answer 36

• A limitation clause enables constitutional rights to be partially limited, to a specified extent, and for certain limited and democratically justifiable purposes, while prohibiting restrictions that are harmful to democracy by reason on their purpose, nature, or extent.
• Many of the rights guaranteed to the citizens of democratic countries must be limited or qualified - or the scope of rights narrowed - in order to prevent conflicts with other rights or with certain general interests. A well-drafted limitation clause prevents these limits, qualifications or restrictions from being taken too far or from being misapplied.

Question 37

Constitutional designers can handle the limitation of rights in three ways:

Answer 37

1) no limitation clause;
2) rule specific limitation clause;
3) general limitation clause

Question 38

South African’s Constitution contains a general limitation clause because?

Answer 38

because it does not specify particular circumstances, such as health or morals, under which each particular right can be limited. Such a general limitation clause can be flexible and allow room for interpretation, but its non-specific nature also means that it could over-or under-limit rights depending on the orientation of the court.

Question 39

Limitation of rights in SA Constitution

Answer 39

36. (1) The rights in the Bill of Rights may be limited only in terms of law of general
    application to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality, and freedom, taking into account all relevant factors, including—
    (a) the nature of the right;
    (b) the importance of the purpose of the limitation;
    (c) the nature and extent of the limitation;
    (d) the relation between the limitation and its purpose; and
    (e) less restrictive means to achieve the purpose.

(2) Except as provided in subsection: (1) or in any other provision of the Constitution, no law may limit any right entrenched in the Bill of Rights.

Question 40

5 types of Human rights [categories of human rights]

Answer 40

1. Civil rights - Deal with the standards of the judiciary and penal systems
2. Political rights - Deal with specific components of participation in political power
3. Economical rights - Deal with the sphere of human beings working, producing, and servicing.
4. Social rights- Deal with the standard of living and quality of life for all persons, including those not participating in economic activities.
5. Cultural rights - Deal with the cultural sphere of life including:
   - ethnic culture,
   - subcultures,
   - arts and science.

Question 41

International human rights instruments

Answer 41

• International (both universal and regional) human rights bodies have interpreted and applied relevant provisions of different human rights instruments within their respective jurisdictions.
• It may illuminate the extent to which these obligations may have already been given effect in domestic law – South African human rights.

Question 42

How are human rights enforced - internationally?

Answer 42

• Internationally the International Criminal Court is empowered to prosecute individuals guilty of the worst human rights atrocities. The central purpose of the ICC is the protection of individuals from genocide, war crimes, and crimes against humanity.
• The Court aims to prevent a set of crimes that, potentially and in fact, encompass the violation of fundamental human rights of large numbers of individuals.

Question 43

How is the enforcement of human rights a states’ task and not an individual task?

Answer 43

For several reasons, global enforcement of human rights is primarily a task of states rather than individuals. The most potent instruments for bringing other states into compliance with human rights norms—diplomatic pressure, economic sanction, military intervention—remain under state control. Human rights treaties and human rights bodies operating under the auspices of inter-governmental organizations like the United Nations are state-created.

The prosecution of human rights violators under international criminal law is an activity either of national courts or international courts created by and ultimately answerable to states. There is no doubt that the most significant advances in human rights during the past fifty years were propelled by non-governmental organizations rather than government bureaucrats, but in the international arena NGOs have generally had to work through states

Question 44

How are human rights enforced - Nationally?

Answer 44

• people are not happy with the level of protection of their socio-economic rights. Respondents to a study by Mubangizi (2004) were consistently in agreement on the lack of government delivery regarding access to adequate housing, health care services, sufficient food, sufficient water and education. People are also not happy about the unfair treatment of employees and the state of the environment.
• public knowledge of the existence of human rights institutions and the work they do is severely limited. So too is the knowledge of the mechanisms and channels of approaching these institutions.

It is therefore concluded that there is a serious need to educate the public, not only on the Bill of Rights and the processes and mechanisms of its enforcement, but also on the existence and functions of the various human rights institutions.

Some of these very institutions (for example the South African Human Rights Commission and the Commission for Gender Equality) whose constitutional mandate is to educate the public on human rights have not adequately executed this mandate

Question 45

TRC recommendations of 1998

Answer 45

South Africa’s Truth and Reconciliation Commission (TRC) engaged in an ambitious process of addressing the country’s violent past through investigating past human rights abuses, listening to victims’ stories, and developing recommendations to prevent future abuses. As part of this process, the TRC held various sectoral hearings to highlight the role of these sectors in South Africa’s past.

The health sector hearing was one such hearing and has been hailed as an important step in the process of promoting reconciliation, transforming health services in South Africa and promoting a human rights culture among health professionals.

The sectoral hearings were aimed at gaining an understanding of the broader social context that facilitated or gave rise to gross human rights violations in South Africa.

Finding:
Education in respect of human rights for all health professionals failed to address crucial patient-care issues.

Question 46

Professor Frances Ames told the TRC Commission:

Answer 46

I think submission to authority and absolving oneself from blame by saying that one has to obey orders are widespread… I think all medical students should be taught about the research on submissiveness being a key etiological factor in the perpetuation of atrocities. They should be fully familiar with Milgrim’s work and reflect on Hannah Arendt’s concept of the ‘banality of evil’.

Question 47

More on TRC recommendations 1998 [students not examined on ethics]

Answer 47

None of the health science faculties made the teaching of ethics and human rights a priority. Most often, courses on these subjects were optional and the students were not tested on the material, thus reducing their incentive to attend the lectures.

The teaching institutions failed to integrate ethics and human rights into the curricula in a way that could have helped students understand their importance and practical applicability.

In addition, students were not encouraged to question the status quo or to protest at the differences in the provision of health care by race.