Legal Rights
Legal rights are rights that you camn enforce in a court of law. The state in which you are a citizen will enforce those rights if you file a claim to enforcement.
In Canada, many fundamental rights are codified in a constitutional document called the Canadian Charter of Rights and Freedoms, assented to on March 29th, 1982 and came into effect three years latter.
Other rights are given under various Provincial and Federal Statutes
Finally other rights may be found by reviewing case law of various courts in Canada . This law is commonly referred to as the common law.
Human Rights Overview
It is commonly observed that human beings everywhere demand the satisfaction of certain values or capabilities to ensure their individual and collective well being. It is also observed that the satisfaction of such values or capabilities are often frustrated by social as well as natural forces. Such demands lead to the recognition of what today are called "Human Rights" and the legal processes that support them.
Today almost every legal scholar and philosopher agree that every human has, at least in theory, some basic rights. During the last half of the 20th century, the international community began to recognized some international human rights.
Universal Peridical Review
The Universal Periodic Review (UPR) involves a review of the human rights records of all UN Member States once every four years. The UPR is a State-driven process, under the auspices of the Human Rights Council, which provides the opportunity for each State to declare what actions they have taken to improve the human rights situations in their countries and to fulfil their human rights obligations. As one of the main features of the Council, the UPR is designed to ensure equal treatment for every country when their human rights situations are assessed.
The UPR was created through the UN General Assembly on 15 March 2006 by resolution 60/251, which established the Human Rights Council itself. The UPR is one of the key elements of the new Council which reminds States of their responsibility to fully respect and implement all human rights and fundamental freedoms. The ultimate aim of this new mechanism is to improve the human rights situation in all countries and address human rights violations wherever they occur.
Human Rights are often defined as entitlements that belong to all humans simply because they are human.
Many writers have proposed many foundations upon which Human rights are grounded. No single foundation has a
monopoly on reasonable claims to be made in its favour. Some views that have been suggested include,
- the possession of rationality and language,
- the capacity to suffer-Jeremy Betham
- to protect human agency - Micael Ignatieff in Human Rights
- Sentience, the capacity to suffer and/or experience enjoyment- Peter Singer
- human dignity
Human Rights versus State Sovereignty
The National State system of government arose in the 16 century in part to provide for greater stability among nations. Traditionally conceived, the relationship with the citizen subject was with his state and no other state was to interfere.
International Human rights which began to immerge from the aftermath of World War 2 appears to have been a challenge to state sovereignty.
In the Charter of the United Nations all members states pledge themselves to take joint action to promote and encourage respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language, or religion.
In the Universal Declaration of Human Rights (UDHR), adopted and proclaimed by General Assembly resolution 217 A (III), 10 December 1948, many nations endorsed the rights contained as a common standard of achievement for all peoples and all nations".
In 1976, the International Covenant on Civil and Political Rights and The International Covenant on Economic, Social, and Cultural Rights and approved by the UN in 1966 came into effect.
Other International Treaties
include
Convention on the Rights of Children
Convention on the Rights of Persons with Disabilities
Human Rights as an Agenda for World Policy Progress
Human Rights has been seen as a framework for a world order of human dignity
French jurist Karel suggested the notion of three generations of human rights inspired by the French Revolution,
liberty - civil and political rights,
equality- economic, social and cultural rights,
and fraternity - solidarity rights.
The first generation would include, the right to life, liberty and security of the person(UDHR3), freedom from racial, gender and religious discrimination(UDHR2), freedom from slavery or involuntary servitude(UDHR4), freedom from torture and from cruel, inhuman or degrading treatment or punishment(UDHR5), freedom from arbitrary arrest, detention or exile(UDHR9), right to a fair and public (UDHR10)
The second generation of rights is a response to the abuse of capitalist development and its underlying and uncritical conception of individual liberty. Some of the rights in this category are set out in Articles 22-27 of the Universal Declaration of Human Rights. Some commentators have characterized this category as "positive rights" or "rights to" as opposed to "negative rights" or "right from" of civil and political first generation rights.
The third generation of rights, possibly suggested by Article 28 of the UDHR,
Everyone is entitled to a social and international order in which the rights and freedoms set forth in this Declaration can be fully realized.
includesright to economic, social and cultural self-determination,
right to economic, and social development and the right to participate in "the common heritage of mankind ( shared earth and space resources, scientific, technical, and other information and progress
the right to peace,br> the right to a healthy and sustainable environment
the right to humanitarian disaster relief
These third generational rights may be more aspirational the recognized enforceable rights
The Rights Reviewed
Basic Rights
The Right to Life
Section 7 of the Canadian Charter of Rights and Freedoms provides,
7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.
Article 3 of the Universal Declaration of Human Rights provides,
Everyone has the right to life, liberty and security of person.
The Right to Liberty and Security of Person
Liberty has the notion of freedom from constraint and security of persons has the notion of freedom from attack. Both have the notion of the right to self-determination. These also include the right not to be abused, sexually intimidated or violated or subject to domestic violence, although such rights may not have been sufficiently well developed in 1948 to be in the minds of the male drafters of this document. Certainly Canadians documents make such rights much more evidently certain.
Article 22.
Everyone, as a member of society, has the right to social security and is entitled to realization, through national effort and international co-operation and in accordance with the organization and resources of each State, of the economic, social and cultural rights indispensable for his dignity and the free development of his personality.
(1) Everyone has the right to freedom of movement and residence within the borders of each state.
(2) Everyone has the right to leave any country, including his own, and to return to his country.
Article 14.
(1) Everyone has the right to seek and to enjoy in other countries asylum from persecution.
(2) This right may not be invoked in the case of prosecutions genuinely arising from non-political crimes or from acts contrary to the purposes and principles of the United Nations.
Article 15.
(1) Everyone has the right to a nationality.
(2) No one shall be arbitrarily deprived of his nationality nor denied the right to change his nationality.
Article 16.
(1) Men and women of full age, without any limitation due to race, nationality or religion, have the right to marry and to found a family. They are entitled to equal rights as to marriage, during marriage and at its dissolution.
(2) Marriage shall be entered into only with the free and full consent of the intending spouses.
(3) The family is the natural and fundamental group unit of society and is entitled to protection by society and the State.
Article 17.
(1) Everyone has the right to own property alone as well as in association with others.
(2) No one shall be arbitrarily deprived of his property.
Article 18.
Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance.
Freedom from Religion in Canada - The Cityof Saguenay and Jean Tremblay Case
Article 19.
Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.
(1) Everyone has the right to freedom of peaceful assembly and association.
(2) No one may be compelled to belong to an association.
Article 21.
(1) Everyone has the right to take part in the government of his country, directly or through freely chosen representatives.(2) Everyone has the right of equal access to public service in his country.
(3) The will of the people shall be the basis of the authority of government; this will shall be expressed in periodic and genuine elections which shall be by universal and equal suffrage and shall be held by secret vote or by equivalent free voting procedures.
Article 22.
Everyone, as a member of society, has the right to social security and is entitled to realization, through national effort and international co-operation and in accordance with the organization and resources of each State, of the economic, social and cultural rights indispensable for his dignity and the free development of his personality.
Article 23.
(1) Everyone has the right to work, to free choice of employment, to just and favourable conditions of work and to protection against unemployment.
(2) Everyone, without any discrimination, has the right to equal pay for equal work.
(3) Everyone who works has the right to just and favourable remuneration ensuring for himself and his family an existence worthy of human dignity, and supplemented, if necessary, by other means of social protection.
(4) Everyone has the right to form and to join trade unions for the protection of his interests.
Article 24.
Everyone has the right to rest and leisure, including reasonable limitation of working hours and periodic holidays with pay.
Article 25.
(1) Everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing and medical care and necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control.
(2) Motherhood and childhood are entitled to special care and assistance. All children, whether born in or out of wedlock, shall enjoy the same social protection.
Article 26.
(1) Everyone has the right to education. Education shall be free, at least in the elementary and fundamental stages. Elementary education shall be compulsory. Technical and professional education shall be made generally available and higher education shall be equally accessible to all on the basis of merit.
(2) Education shall be directed to the full development of the human personality and to the strengthening of respect for human rights and fundamental freedoms. It shall promote understanding, tolerance and friendship among all nations, racial or religious groups, and shall further the activities of the United Nations for the maintenance of peace.
(3) Parents have a prior right to choose the kind of education that shall be given to their children.
Article 27.
(1) Everyone has the right freely to participate in the cultural life of the community, to enjoy the arts and to share in scientific advancement and its benefits.
(2) Everyone has the right to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author.
Article 29.
(1) Everyone has duties to the community in which alone the free and full development of his personality is possible.
(2) In the exercise of his rights and freedoms, everyone shall be subject only to such limitations as are determined by law solely for the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality, public order and the general welfare in a democratic society.
(3) These rights and freedoms may in no case be exercised contrary to the purposes and principles of the United Nations.
Reference
Ignatieff, Michael (2001) The Rights Revolution, Toronto The House of Anansi
Ignatieff, Michael (2001) Human Rights As Politics and Idolatry, Princeton: Princeton University
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