A/HRC/37/63
Annex I
A new functional paradigm on human rights
1.
All rights derive from human dignity. Codification of human rights is never
definitive and never exhaustive, but constitutes an evolutionary mode d’emploi for the
exercise of civil, cultural, economic, political and social rights. Alas, the interpretation and
application of human rights is hindered by wrong priorities, sterile positivism and a
regrettable tendency to focus only on individual rights while forgetting collective rights.
Alas, many rights advocates show little or no interest for the social responsibilities that
accompany the exercise of rights, and fail to see the necessary symbiosis of rights and
obligations, notwithstanding the letter and spirit of article 29 of the Universal Declaration
of Human Rights.
2.
The time has come to change the human rights paradigm away from narrow
positivism towards a broader understanding of human rights norms in the context of an
emerging customary international law of human rights. Law is neither physics nor
mathematics, but a dynamic human institution that day by day addresses the needs and
aspirations of society, adjusting here, filling lacunae there. Every human rights lawyer
knows that the spirit of the law (Montesquieu) transcends the limitations of the letter of the
law, and hence codified norms should always be interpreted in the light of those general
principles of law that inform all legal systems, such as good faith, proportionality and ex
injuria non oritur jus.
3.
I propose discarding the obsolete and artificial division of human rights into those of
the falsely called first generation (civil and political), second (economic, social and cultural)
and third generation (environment, peace, development) rights — with its obvious
predisposition to favour civil and political rights. This generational divide is part of a
structure that perpetuates a world order that much too often appears to allow injustice.
4.
Instead I propose a functional paradigm that would consider rights in the light of
their function within a coherent system — not of competing rights and aspirations, but of
interrelated, mutually reinforcing rights which should be applied in their interdependence
and understood in the context of a coordinated strategy to serve the ultimate goal of
achieving human dignity in all of its manifestations. Four categories would replace the
skewed narrative of three generations of rights.
5.
First we would recognize enabling rights, among which I would list the rights to
food, water, shelter, development, homeland — but also the right to peace, since one cannot
enjoy human rights unless there is an environment conducive to the exercise of those rights.
Article 28 of the Universal Declaration of Human Rights postulates the right of every
human being “to a social and international order in which the rights and freedoms set forth
in this Declaration can be fully realized”. This entails the basic necessities of life and the
right to a level playing field.
6.
Secondly I would propose a category of inherent or immanent rights, such as the
right to equality, the right to non-arbitrariness; indeed, every right necessarily contains in
itself the element of equality, the self-evident requirement that it be applied equally and
equitably, that there be uniformity and predictability (what the Germans call
Rechtssicherheit). Immanent rights also encompass the rights to life, integrity, liberty and
security of person, in the light of which other rights must be interpreted and applied. There
are also inherent limitations to the exercise of rights. The general principle of law
prohibiting abuse of rights (sic utere tuo ut alienum non laedas — use your right without
harming others, a principle advocated by Sir Hersh Lauterpacht as an overarching norm
prohibiting the egoistic exercise of rights to achieve anti-social results or unjust enrichment)
means that every right, also a human right, must be exercised in the context of other rights
and not instrumentalized to destroy other rights or harm others. There is no right to
intransigence as we know from Shylock in the Merchant of Venice. The letter of the law
must never be used against the spirit of the law.
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