What are Human Rights?
Throughout human history, few civilizations have seriously considered the idea of universal human rights. For many centuries it was widely believed that thanks to their race, birth, citizenship, etc… some individuals were granted certain rights while others were not. This mindset allowed for the justification of various moral misdeeds. Slavery, for example, was seen as acceptable partly because the slaves simply did not have the same rights to freedom that their masters enjoyed. Over time, however, views began to shift as more and more nations began to institute the concept of human rights. But what are human rights really? Do they apply to everyone and when can they be limited?
Human Rights are the most fundamental rights enjoyed by individuals simply because they are human. While other rights may only be applicable to certain people living in certain areas at certain times, human rights apply to everyone and are usually held in the highest regard.
Following the atrocities committed during World War 2, most nations around the world agreed to the idea of certain rights being foundational and largely inalienable while applying to all humans, in an attempt to help ensure that certain groups of people would never again be seen as ‘lesser’, and thus, not subject to the same rights as others.
What are South Africa’s Human Rights?
South Africa has a wide range of human rights that can be found in Chapter 2 of the Constitution. The most basic rights include, but are not limited to –
- The Right to Equality – The state may not unfairly discriminate against a person based on aspects such as their race, gender, etc.
- The Right to Life – Everyone has a fundamental right to life.
- The Right to Freedom and Security – The state may not arbitrarily detain a person, detain a person without a trial, torture a person, etc.
- The Right to Privacy – A person has the right to not have their home arbitrarily searched and their property seized.
- Freedom of Religion – Everyone has a right to freedom of religion, belief, opinion, etc.
- Right to Education – Everyone has a right to basic education.
- Right to Healthcare – Everyone has a right to healthcare services, food, water, etc.
- Access to Courts – Everyone has the right to have disputes that fall under the purview of the law decided in court
Interestingly, not all rights mentioned within the bill of rights apply to all individuals, some rights are only available to South African citizens.
Does the Bill of Rights Apply to Foreigners?
For the most part, yes it does. By focusing on the wording of each individual right, we can find out which rights apply to which people. For example, the constitution notes that ‘Everyone’ has a right to life, as a result, even non-South African citizens will benefit from that right. On the other hand, when dealing with political rights, the constitution notes that ‘every adult citizen’ has a right to vote. Obviously then, only South African citizens who are considered adults are able to vote while foreigners do not share that right.
What is the Difference between Human and Civil Rights?
As mentioned, human rights tend to apply to a person simply because they are human and regardless of their birthplace, race, etc, for example, you cannot torture someone even if they are not native to the country. On the other hand, civil rights only apply to recognised citizens, for example, many people believe that they have the broad freedom of speech rights that they hear about on American television, but in actuality, only citizens of the United States enjoy such rights.
Can Rights be Limited?
Yes, they can. Chapter 2 Section 36 of the constitution makes provisions for rights to be limited in certain scenarios. For example, you have a human right to not be detained without a trial, however, if you are arrested, the state may believe that you will not show up to your trial if you are temporarily released. As such, the state may hold you in custody for a short time (thus limiting your aforementioned right) in order to uphold the course of justice.
Some rights, however, are seen as non-degradable and thus cannot be limited regardless of the context (at least theoretically).
How is the Limitation of Rights Decided?
When the state limits the rights of an individual or even, the rights of all citizens, it is normally done by considering two main factors –
- Constitutional Limitations – Some limitations are already noted in the bill of rights when dealing with certain topics, for example, you have a right to freedom of expression, however, this right does not extend to freedom to propagandise for war, incite violence or advocate for hatred based on race, gender, etc. Additionally, provisions have been made in the constitution for limiting rights in times of war and disaster.
- Weighing Rights – At times, an individual’s rights may come into conflict with the rights of society at large. As mentioned, a person suspected of committing a violent crime may have a right to freedom of movement and a right to not be detained without a trial, however, these rights are weighed against the rights to life and safety enjoyed by the rest of the populace and thus may be limited
What’s the Difference between Positive and Negative Rights?
The idea of human rights was originally designed to be universal to ensure some baseline level of equal and just treatment for individuals around the world, but if you look at the constitutions of different countries, you’ll soon notice differences in the extent of the rights afforded to their citizens. This difference usually stems from a debate regarding positive and negative rights.
Negative Rights are normally viewed as naturally occurring rights of humans and can only be removed or negated by others, for example, all humans are born with the innate ability to form and voice their own opinions, ie, the right to freedom of opinion. This right can only be lost if a third party comes along and takes it away or limits it in some manner.
Positive Rights, by contrast, are rights that are afforded to you by others, for example, a nation may make healthcare a human right but most of us are not born with the ability to provide ourselves with healthcare, it must be provided to us by doctors, nurses, etc.
Differences in the extent to which rights are afforded to citizens are commonly determined by the different views on positive and negative rights. Most nations will enshrine negative rights in their constitutions to almost their full extent, as cracking down on negative rights is normally seen as an infringement by the government. By contrast, many nations will also enshrine positive rights, but normally to a lesser extent, as the act of ‘not providing a right’ is seen as less of an imposition, for example, many countries have a right to healthcare of some kind, however, the extent of this right differs wildly depending on the country.
In Conclusion – What are Human Rights and When do they Apply?
Human rights are the most fundamental, and oftentimes, the most sacred rights enjoyed by everyone simply because they are human. These rights are seen as vital to a thriving democracy and should only be limited with good reasoning. They include things like, a right to life, a right to religion and opinion, a right to freedom, etc.
Human rights are available to individuals regardless of their race, gender, nationality, etc. In this way, they differ from civil rights as the latter are only available to citizens of the nation, for example, all humans, whether native or foreign have a right to life, while only South African citizens have the right to vote in South African elections.
Some rights are viewed as non-degradable and thus should never be infringed upon regardless of the circumstances. Others are able to be limited when it is deemed necessary. These limitations may become necessary either when stipulated by the constitution or when the affordance of a right is in conflict with the rights of others.
Rights can be further divided into positive and negative rights. Negative rights are rights that are enjoyed by an individual without interference from others, ie, all people are born with a right to their religious beliefs and maintain them until this right is taken from them. Alternatively, a positive right is only available when it is provided to you by others, for example, a person is not born with the ability to give themselves a basic education and must instead be provided with that right.
Disclaimer LAW101: All of our posts are for research purposes only. Law 101 aims to assist its readers with useful information on the laws of our country that can guide you to make decisions in line with the South African Governmental Laws currently in place. Although our posts cite the constitution in many instances, they are intended to assist readers who are looking to expand their knowledge of the law. Should you require specific legal advice we advise you to get in touch with a qualified legal expert.
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[…] manner. As if all this wasn’t enough, the South African constitution also outlines certain fundamental human rights that are afforded to all individuals regardless of whether or not they are SA […]