South Korean Human Rights Monitor

Common Misunderstandings

Daniel Corks August 21, 2014

Understanding the modern human rights framework can be difficult because of the legal jargon used in UN treaties, not to mention all the different names given to various types of treaties and committees and the many branches of the UN. This section of the primer will try to clear up some common misunderstandings and misapprehensions.

Contents

  1. Equality is not Identicality; Freedom is not Anarchy
    1. Equality
    2. Freedom
  2. Criminal Punishment of Rights Violators?
  3. Rights of Prisoners
  4. Universality, Indivisibility, Interdependence and Interrelatedness of all Rights

Equality is not Identicality; Freedom is not Anarchy

The first sentence of Article 1 of the Universal Declaration of Human Rights reads:

All human beings are born free and equal in dignity and rights.

Equality

The term equal does not mean that all people are the same, physically mentally; everyone is born with different characteristics and develops different skills during their lives. Instead, equal means that these differences cannot be used to create a hierarchy between people or determine the relative worth of a person. Even if someone can do someone that most people can’t, like run 100m in less than 10 seconds, that doesn’t mean that person is inherently better than others. Everyone deserves equal status and recognition.

For a more concrete example, we can look at the principle of gender equality. Gender equality is the opposite of gender inequality, not of gender difference. There are clear differences between genders, but none of these differences should be used to try to justify unequal treatment. Promoting gender equality means promoting equal visibility, empowerment and participation of any gender in all areas of public and private life.

Another example: Articles 2, 7 and 8 of the UDHR establish the right to equality before the law. Again, though, receiving equal treatment does not mean receiving identical treatment. Juveniles should be treated differently from adults in the justice system, for instance. Equality before the law means that no one is given unfairly positive or negative treatment because they are a member of a group or have characteristics unrelated to the particular legal case. This includes countries not making any sort of distinction between its own citizens and foreign citizens or stateless persons.

Freedom

The term free also requires clarification since it is often misused. Freedom is not and cannot be absolute, nor can the freedom of one person be at the expense of the freedom of others. Freedom, therefore, is not the same as anarchy. For example, the right to freedom of expression is restricted in some cases, such as promotion of war or advocacy of national, racial or religious hate speech. Speech that attempts to create or encourage discrimination takes away from others the right to equal treatment, and thus should be prohibited.

Similarly, countries have a duty to create reasonable restrictions on certain types of freedoms to ensure that they do not violate the rights of others. Where exactly these lines should be drawn for each issue is a matter of public debate and in practice often ends up being decided by the courts. One example of such a debate involves a religious practice that calls upon its followers to carry a small knife at all times. A balance has to be struck between the right to freedom of religious expression for the practitioner on one hand and the rights to safety and freedom from fear for the community on the other. More can be read about this issue here.

The International Criminal Court

Exterior of the International Criminal Court

Criminal Punishment of Rights Violators?

The overall goal of human rights committees, such as the Human Rights Council or national human rights commissions, is not criminal punishment. When reviewing countries or specific cases, their aim is to determine whether a rights violation has taken place and who the duty bearer(s) is. They establish a constructive dialogue with the duty bearer(s) (often the country or a large corporation) to promote compliance with local and international human rights law.

That said, rights bodies recognize that some states may have no choice but to fulfill a particular right progressively in the case that resources are lacking, but there is still a minimum level that must be maintained at all times. This includes providing access to basic health care and food, for instance.

Determining criminal liability is a responsibility that lies with the courts, such as a country’s court system or in special cases the International Criminal Court (ICC). The ICC has the ability to give prison sentences and require compensation for victims, but their scope is more limited than most people realize. They only investigate very particular crimes, and only in cases where the state is unwilling or unable to do so itself, and then only rights violations which took place after the court’s statute came into effect (2002/07/01).

Rights of Prisoners

A common view regarding the treatment of prisoners is that criminals decide to give up their rights when they commit a criminal act and because of that rights legislation should not apply to them. Taking away all the rights of an imprisoned person so lightly sets a dangerous precedent, however. It is important to remember that within jails there are always individuals who have been given unnecessarily harsh punishments for minor crimes, have been wrongly convicted or have been imprisoned simply for politically opposing those in power. On top of this, in many parts of the world governments routine jail people without even a conviction or legal proceedings. Amnesty International‘s reports of prison conditions around the world are a good way to learn more about these issues.

The UN has adopted over 20 treaties regarding the treatment of people in prison (available on the OHCHR’s site here), such as a standard minimum set of rules about the use of force by law enforcement. All prisoners are entitled to the full set of rights given in the International Bill of Human Rights, with the only exceptions being those required by incarceration (such as freedom of movement). Prisoners’ rights include the right to take part in cultural activities, receive education, and have access to health services.

Universality, Indivisibility, Interdependence and Interrelatedness of all Rights

All human rights – civil, cultural, economic, political and social – are universal, indivisible, interdependent and interrelated and the promotion and protection of human rights is the legitimate concern of the international community. The International Bill of Rights does not place any one right ahead of another and thus views all rights as having equal importance.

As said earlier, one right can never come at the expense of another. In developing countries, governments often argue that they must suppress the political freedoms of its citizens, such as freedom of expression and organization, in order to focus on economic and social advancement. This behaviour was seen often in the Eastern bloc during the cold war. However, the principles of indivisibility and interdependence mean that rights may not be ranked or divided into categories. Even if a country wanted to create a hierarchy for human rights, there is no basis that could be used to determine which rights would be more or less important. Countries are required and expected to pursue the advancement of all rights and may not ignore or restrict one for the sake of another.

About Author

Daniel Corks

Daniel worked as an HRM intern before becoming a research fellow at KHRF and taking on the role of editor on the HRM project. He is currently an assistant professor at Dongshin University. View all posts by Daniel Corks →

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