What are human rights

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What are human rights?
16th December 2006

• Dr Nicole Westmarland

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Potential for layers of confusion
The term is used by different people to mean very
different things. Will be used in lots of
different ways during this conference. People
will have different levels of knowledge
non-technical language.
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Moral/natural or legal?
Right, the substantive right, is the child of
law from real laws come real rights
but from laws of nature, fancied and invented by
poets, rhetoriticians, and dealers in moral and
intellectual poisons come imaginary rights
(Bentham, 1792)
When we call anything a persons right, we mean
that she has a valid claim on society to protect
her in the possession of it, either by the force
of law, or by that of education and opinion.
(Mill)
international moral and legal norms that
aspire to protect all people everywhere from
severe political, legal, and social abuses
(Nickel, 2003).
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Aspirational or justicable?
Everyone has the right to rest and leisure,
including reasonable limitation of working hours
and periodic holidays with pay.
Parents have a prior right to choose the kind of
education that shall be given to their children.
Aspirational Universal Declaration of Human
Rights
Prohibition of torture
Right to respect for private and family life
Justicable European Convention on Human Rights
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Women and HR the pessimistic picture

• Who can claim their human rights?
• e.g. rape (Westmarland, 2005)
• e.g. Prohibition of slavery and forced labour
  (art 4)
• ECHR cant cope with demand.
• Claims for equality can result in a levelling
  down instead of a levelling up
• McColgan (2000) - the false promise of human
  rights

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Women and HR the optimistic picture
Transformative capabilities e.g. to legitimise
claims (MacKinnon, 1987) Phillips (1991)
gendered substitution no group has been more
active in using litigation than organized
feminists (Morton and Allen (2001, pg. 56).
e.g. Cheung, Mayers.
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How can the ECHR be used in relation to
prostitution?

• Originally designed for states to take other
  states, but from 1966 individual petition
  possible (victims only)
• No ECHR case law in relation to prostitution
• More suited to EC law?
• Some possibilities

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Some possibilities
Article 3 - Prohibition of torture, inhuman and
degrading treatment Article 4 Prohibition of
slavery and forced labour Article 6 Right to a
fair trial Article 14 Freedom from
discrimination

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The future ?
More thinking about the potential of human
rights More organising More (some)
resources This seminar!