By: Gonzalo Molina
Taborga Lawyer and Professor of Human Rights .
Content Fundamental Human Rights Education
Joint Working of the National Corporation for Reparation and Reconciliation and the Chilean Commission on Human Rights.
treated Rights
the 38 rights will be explored including four international human rights instruments:
1) Statement Universal Rights, adopted by the General Assembly of the United Nations on December 10, 1948;
2) International Covenant on Civil and Political Rights, adopted by the General Assembly of the United Nations on 16 December 1966. Ratified by Chile on February 10, 1972 and published in the Official Journal on April 29, 1989;
3) International Covenant on Economic, Social and Cultural Rights, adopted by the General Assembly of the United Nations December 16, 1966. Ratified by Chile on February 10, 1972 and published in the Official Journal on April 27, 1989;
4) American Convention on Human Rights, adopted at the Inter-American Specialized Conference on Human Rights in San José, Costa Rica on November 22, 1969. Ratified by Chile on 21th August 1990 and published in the Official Journal on January 5, 1991;
If one accepts that human rights are those inherent in, or the essence of the human person must concluded that they exceed those they have made national and international recognition in the latter case, through declarations and covenants.
Since the purpose is to deliver content Human Rights, it is necessary limit what these human rights, hence, we resort to international instruments that allow such content to establish greater certainty and precision. In particular, we chose known current documents in our country and containing extensive range of rights relating to all spheres of life of people.
Of the chosen instruments, three of them have the character of international treaties (the International Covenants on Civil and Political Rights and on Economic, Social and Cultural Rights and the American Convention on Human Rights), which are ratified by Chile and force in our country since its publication in the Official Journal on the dates indicated above.
The Universal Declaration of Human Rights is not a treaty. Therefore, international doctrine has been discussed very hard on their binding. However, over time, it has been recognized that its provisions are part of international law and, therefore, has reaffirmed its binding.
This character was already recognized by the International Human Rights Conference in Tehran, 1968, that "the Declaration states a common understanding for all peoples rights equal and inalienable rights of all members of the human family and constitutes an obligation for the international community. "
She has, in any case, huge historical and political importance as the first major international body that contains human rights norms of general and universal. [1]
In the case of Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights and the American Convention on Human Rights, they sought to define more specific and precise content of each of the rights enshrined in the Universal Declaration, the first two, in the international arena and the Convention, at the regional American. Like the Universal Declaration, they contain large catalogs of rights applicable to the generality of the areas of human life.
It should be stressed, however, that the rights addressed in this work do not exhaust the field of what are human rights. On the contrary, they are in a permanent historical enrichment process, which leads to gradually be adding new content to the catalog of Human Rights. In addition, other specific rights contained in instruments relating to specific fields.
Although this work has not included all of the Human Rights with international and national recognition, it can be said that the rights discussed here are the basic rights of those who have been emanating from other specific safeguards .
The division into categories
Try classify human rights is a difficult and risky, since the criteria used to make are usually arbitrary. Therefore, there are various proposals for sorting and classification of Human Rights from the legal, historical, political and ethical-philosophical.
The starting point of categorization proposed here is that human rights constitute an integral whole, since all of them, together, account for dimensions of the person and his dignity.
For methodological reasons, the authors grouped into four categories of rights that attempt, on the one hand, sharing the theory of human rights to students, in view of the action is a contribution to the construction of a culture respectful of human rights, and, secondly, to relieve the ways in which the rights affecting the various dimensions of personhood.
aspects are embodied in four categories to facilitate the study. The criterion used to group rights in four categories is based primarily on the various stages of human development and how the social environment facilitates the deployment of the person like an original, unique, transcendent and possessing inalienable dignity.
The categories are:
1 ª. Protection of life
It grouped those as fundamental rights, though not exclusively, aimed at protecting the lives and safety and physical and mental integrity of persons. The protection of life is, in terms of development, the basis or foundation of a person.
All rights are included in this category have in common constitute the minimum necessary for the human being can have the option, in society and equal rights, its own life and to redeem your dignity.
2 ª. Recognition of the person
This
category contains those rights which, along with being inherent to the subject, emphasize the individuality of human beings in society and the ways in which it is recognized as an individual subject. In other words, are the rights that objectify the presence of the person in society.
From the perspective of personal development, rights included in this category account for the human need for self-perceived as a unique and unrepeatable subject, recognized and respected as being different from everything else.
3a. personal fulfillment
rights belonging
this category are related to the deployment of the subjectivity of the individual in society, ie the possibility to live as social subject, a broader expression of freedom.
In terms of development of the individual rights guaranteed in this category, promote and protect the actions of the person actively inserted in a collective.
4 th. Legal protection and public participation
rights gathering this category, on the one hand, guarantee everyone equal access to justice and, other, expressing the various forms of citizen participation.
In this group are considered a set of rules that characterize the rule of law, ie a system whose support base is respect for the principles of liberty and equality values.
From the perspective of development of the individual, those rights are conducive to citizen participation and emphasize the human need to organize to achieve common goals. On the other hand, realize the need for humans to interact with each other through a law that applies to everyone, particularly in situations of transgression of social norms.
accesses
Each of the rights concerned in the work is approached from four angles, perspectives or different views, which were called hits. Access from which examines each law are the legal, philosophical, historical and educational.
The goal of this treatment is to give the reader a rich information content that allows you to work each right from the angle that is most convenient.
legal access raises the complexity of human rights, finding that they can be approached from different points of view are not mutually exclusive, one of which is legal. Consequently, the legal reading is essential to complement the various dimensions that make the concept of human rights an integral whole and integrating the various aspects of being human.
However, the sanction or legal recognition of the rights of the person, give them a force that makes them enforceable in national and international level.
In recent decades, after the second world war, has been generating a sustained way in the international system a new branch of public international law, which is the international law of human rights. A considerable body of international legal instruments binding on States the duty to respect and promote fundamental rights, through their recognition and realization of mechanisms of protection.
Moreover, at the national, the respective domestic legal systems have been concerned to elucidate the receive mode of the international human rights law and to define the seniority to be granted this right in the domestic sphere. All this without prejudice to the catalog of rights and guarantees that, in general, the constitutional bodies develop at some length and which, incidentally, are generally consistent with international law of human rights that states have concurred to create.
Of particular importance is this issue to Chile after the 1989 constitutional amendment, under which the Constitution was modified by adding the second clause of Article 5 obligation State bodies to respect and promote basic rights emanating from human nature, as guaranteed by the Constitution and international treaties ratified by Chile that are in force.
Under this provision, all the rights contained in the covenants and conventions on Human Rights which are in force in Chile, must be respected by State organs. These rights, therefore, join or form part of our legal system, in a hierarchy above the law, by getting their rights recognized as essential by the Constitution.
Human rights emanating from treaties or conventions, therefore, are not only international law but also, and according to constitutional law - are essential rights of Chilean law.
In accordance with the above considerations, it has decided to pursue legal rights each chosen considering the international law and relevant national law.
International Law of Human Rights
Each of the rights will be explained in accordance with the content delivered International Instruments on them were selected for the job. Also, reference to other international instruments related to say that right or relating in particular to him.
Where necessary, recourse to the contributions made by some national and foreign writers to reflect on the content of each law and the decisions made by certain regional and international organizations on Human Rights. (The Human Rights Committee of the United Nations, the Inter-American Commission on Human Rights, the Inter-American Court of Human Rights).
The intention in this part, is to approach the significance of each right in terms of legal protection for a particular area of \u200b\u200blife or human activity.
National Human Rights Law
content will be addressed each of the rights under them as they are enshrined in the Constitution of 1980. To do this, will be used mainly to Chapter I (Foundations of institutions) and Chapter III (Constitutional Rights and Duties) of the Constitution.
The latter are explicitly incorporated in national constitutional law, an important part of the rights referred to in the selected instruments in the form of so-called rights or constitutional guarantees.
In any case, it is worth recalling the above, in the sense that while not all fundamental rights are recognized in the Constitution, everyone is wary of him. This is so under Article 5 paragraph 2 above, requiring the State to respect and promote the basic rights guaranteed by the Constitution, "as well as international treaties ratified by Chile that are in force. "
So those rights under any selected international instruments that are not included in the letter of the Constitution, also require the Chilean State under the above provision, to bring its domestic legislation and their activity as they may be contradictory.
Along with the constitutional rule and to the extent necessary or desirable, reference to other legal bodies, which recognize and regulate specific aspects of certain rights in our country.
Philosophical Access
The various rights set out in this work are not only the result of a particular history or political action on their behalf. In cases affecting formulation of a theoretical-philosophical, which have gradually acquired an own label known as "Theory of Human Rights."
One of the characteristics of the contents of Human Rights is not a closed system and are not attributable to a single author or group of authors. While it is difficult to determine precisely the origin of each of the discursive elements contained in the proposed Rights Human can be noted that, at least for the international set forth in this work, his source of inspiration lies in what is recognized as Western culture, especially in three major aspects philosophical approach: classical liberalism, social Christianity and modern socialism.
While it is shared by many that these three major currents of contemporary thought are the most influential theoretical discourse of human rights is no less true that this influence is exerted mainly at the beginning of process of international documents associated with the United Nations. Following this influence has been Unsharp, leading to a number of other sources of information that has broadened the meaning and scope of Human Rights.
this perspective, the philosophical access does not seek to account for the theoretical and philosophical assumptions that are the basis of individual rights set. The reasons for this choice concerning both the nature of a task of this magnitude, inconsistent with the objectives of the work, as to the view that from the materialization of rights in United Nations documents, they have begun to go its own way susceptible different approaches and interpretations from different political traditions and cultural contexts from which they are read.
From this finding, at each access philosophical started from the very meaning of rights emanating coded system from the United Nations or its agencies in Latin America. This option would allow, as a task for the future, think about human rights as the new ethical-political grammar of the century.
While the development of a "theory" of human rights finds its own difficulties -In particular, if we understand by the actions of the empirical-analytic, it can be argued that human rights are a starting point to read and decode the social reality in which we find ourselves, is ultimately based on the one hand , the ideas of coexistence in which conflict and order are processed in a dialogical and rational and, secondly, the promotion of respect for the dignity of human beings on the other as a basis for personal fulfillment.
From this point of view it can be said that human rights are a permanent construction and conceptual enrichment, designed to give peoples and people in a new way of understanding the social and personal.
Thus, this disclosure will deliver the key elements that underlie a law, trying to account for the relevant arguments that support them.
an outline is intended to indicate that this new approach and its main hallmarks. Where possible, we tried to deliver the main line of argument in which each duty rests within a global framework to be delivered later in the same Introduction.
The reader should not look in this disclosure the ultimate reasons for each right, as this effort has no such claim. Rather, you will find the latest status of the discussion, the main theoretical arguments that support each right and the main challenges that are present in the discussion of issues related to human rights.
Access Historical
history especially human affairs designated as self. In it, humanity is what it is. The people, finding its successive avatars as human work, they realize, too, that the story is and to build.
In this sense, history is a process of reconstructing the past in which the individual is recognized and identified, and from which projects its desire for the future. The case made sense of the meaning of what lies ahead. Therefore, look into the past of the rights of persons is the force that drives its growth. Be read, then the history of human rights as an ongoing process of historical realization of social values.
In historical access reports on the status of the concept-representation into account intellectual and the state of the conscience of humanity in relation to the value that represents that concept, in different historical phases. In other words, it becomes clear what has been understood in different periods on that basis and determined, roughly, the evolution that has suffered.
To illustrate the development of each concept refers to cultures that are more significant for our country, which is inserted into the broad picture of Western civilization. Certainly our culture has its roots in Judeo-Christian tradition and Greco-Roman. Since deploying them is brewing for us, of the rights of individuals.
This usually has followed the traditional division of ancient times, medieval and early modern period, emphasizing some of the milestones that mark points of evolution, re significance, formal setting, or struggle for life historical law referred to by this or that concept. This was done because this traditional division of history into periods is correspondence, often with significant developments studied many rights.
cite some historical milestones because they have an impact on subsequent developments or because they represent a corollary of the above. Certain historical facts, such as the emergence and development of Christianity, the Enlightenment, the French Revolution or the Industrial Revolution, are events that give a new course to the story and make it intelligible, broadening and deepening the horizon of the ethical affirmation of humanity.
Moreover, in cases that have merit, it has been a special concern for determining the historical development of rights studied from some significant events in our country. It has also been illustrated with national development situations, establishment, or studied observance of rights.
This is of particular relevance to us, allowing us to place ourselves in our collective life, to compare our situation with other people, identify the shortcomings that we had and we have to respect the desire to inspire for the achievement of an effective respect for the rights of individuals, identify our own contributions and prospects of further humanizing glimpse.
Educational Access
The need to reflect educational practice in the light of Human Rights emphasizes the points made on the right education in the Universal Declaration of Human Rights, Article 26 states: "Education shall be directed to the full development of human personality and strengthen respect for human rights and fundamental freedoms, promote understanding, tolerance and friendship among all nations and all racial or religious groups, and shall further the activities of United Nations peacekeeping. "
is clear that any model or approach to education, by itself, able to satisfy all the conditions set by this law.
can say that the contributions of psychology, sociology, anthropology, epistemology, and understanding of the physiological and neurological mechanisms involved in the learning process, have improved understanding of the dynamism and complexity of educational work, when it aims to achieve the goals expressed in the right to education.
In this sense, education is one area that reflects the development of the consciousness of humanity with regard to the supremacy of the individual over any other institution or entity of society. This has been reflected explicitly in the Universal Declaration and other international human rights instruments.
Fundamentals
present a set of notions that are exposed or approached from different angles. Concepts is crucial to the understanding of human rights and also constitute the core of theoretical work.
To improve the understanding of it then presents these concepts - individual, dignity, peace, development and self-determination of peoples - in its most universal, which subsequently will be strengthened in the main text.
The notion of person is the raw material of human nature, which is common to all members of the species. In it, each of the subjects of the species adds features that cause differentiation. The union of the common nature and characteristics that overlap in the subject person singular form, ie a human being with its own characteristics that make it different.
This process of building you have two basic types of power: on one hand, acts own, that is, those caused by the subject and, secondly, those that happen, although from the outside affect what contributing to the distinction itself.
The person is then singled out humans for their actions and experience, resulting in a single subject, or else.
Therefore, when describing a person comes to notions such as cognitive, emotional, creative, etc., Characteristics that link the subject to a set of experiences that nurture the self or other, to Unlike what happens when talking about human beings, where expression is linked to the common features of the species as a living, rational, mammal, etc.., which do not account for specific differences.
For these reasons it is not the same individual that person. The term individual may connote any organizational unit, plant or animal and also expresses a complex entity such as the human being, however, the individual is defined negatively on others, it connotes the singularity, not diversity, promotes autonomy , no difference, says independence and not belonging.
The concept of person is essentially positive, for the elements of difference from other people start from himself and not the denial of others. That is, the notion of person assumes the species as a whole in which and from which the person is different.
Mankind, in its current self-perception, the term preferred or privileged person, because it summarizes the common and unique. This notion expresses the subject of which preach all the rights enshrined in international documents on human rights.
The person is a synthesis, ie it presenting the elements that give the species and characteristics arise from the experience of each subject.
One of the main challenges today is the creation of forms of social relations in which people can develop in the fullness of their potential, this means you are guaranteed the possibility to develop actions and the experience of experiences that allow each individual to continue the process of personal development.
The value of the human person is that his being is in constant development, which opens from the time of the beginning of human life.
a person like another, the diversity of the human community allows the interaction of different forms of being, different experiences, diversity can also meet and clash, as it is difficult to believe that coexistence can be no discrepancies.
is under this situation so strongly promotes the dignity of the human person.
1 ° Dignity
dignity at its most basic sense, means a quality, a seat, a status that is seen as a role or a condition. It is a concept fundamentally ethical, it recognizes those basic values \u200b\u200bthat are unique to humans.
Formally, we say that the dignity expresses the condition of "being worthy of." The thing that we deserve the emphasis not on what is received, but on the receiver.
Moreover, if we assume that the dignity of deserving expresses the condition corresponds to establish where and who recognizes that dignity. Following this route, if we speak of human beings is precisely what we mean by it, the conception of human beings we possess, will determine the type of recognition.
From our analysis, this means that the Human Rights human being is worthy of freedom, justice and peace. So, to be a person is a basic condition of freedom, justice and peace.
Dignity is not an abstract concept, ideal or fixed, it is a historical concept whose value has been enriched by the warmth of human development. This is a substantive condition of the person, the dignity of humanity develops as it develops. Dignity and recognize we have today is a stadium to be overcome in the process of growth and development of mankind.
Noting that we are worthy, or deserving, we affirm, while that of which we are not worthy and do not correspond formulations evasive here. This means you can not take any action which would break the equality of human beings, while condemning any action that denies freedom, justice and peace.
Now if we take the concept of person proclaimed in the Human Rights legislation, we must address the following statement: "All human beings are born free and equal in dignity and rights are endowed with reason and conscience and should act towards with each other, "as says the Universal Declaration in its Article 1.
Here mankind is conceived in equal in dignity and rights, without distinction between any of its members.
To protect and ensure the personal development, with equal respect the dignity and rights, it is necessary that the relations between people and people to develop the body ensuring social harmony. The livelihood of the harmonious relations of social life is given by the presence of modalities that respect the integrity of people, ie to deny the use of force as a way to resolve any conflicts that may arise in social life.
2 ° Paz
From there you're applying the value of peace, without a doubt one of the most complex issues in the theory of Human Rights.
In fact, it is often linked to the notion of order, then, is through the creation of an order ensuring the peaceful development of people.
Somehow, peace does not mean the negation of violence, but rather the absence of formulas that attempt to solve conflicts through the use of force. [1]
But on the other hand, peace is also a quality that should be rooted in the people and that is expressed in the recognition of others as equal and different.
Just because he attends human nature which shows their dignity, and different, because it is a person with specific characteristics and seeks, through their actions, their full development.
However, the concepts of person, dignity and peace can not be seen as a proposal from among the context of the major challenges facing humanity. The provision of States to respect human rights, awareness of people to demand respect for them and, in many cases, that is objectively impossible to achieve the full exercise of these rights, we need to confront, at the whole humanity and of individual countries, at least two subjects in full force: the development and self-determination of peoples.
3 ° Development
Development is a concept that the doctrine of human rights has gradually been incorporated and stating that aims to describe the process by which achieves the fullness of changing conditions economic conditions. However, the Human Rights documents has been expanded and more complex this significance, transcending the mere idea of \u200b\u200baccumulation of wealth. The development is more than economic growth, as their own achievement requires the hiring and promotion of other rights, such as equality, non discrimination, self-determination, participation. Without the assumption of these rights will be difficult to achieve growth itself as well as be more responsive to the needs of people both domestically and in countries with regard to international order.
Already in the Universal Declaration Human Rights in Clause 5 of the Preamble states that "the peoples of the United Nations have ... determined to promote social progress and better standards of life in larger freedom." This recital is specified below (Article 25), to be set as his right of every person to a standard of living. Thus, comes to represent a call-to States and international bodies towards the creation of certain conditions in which recognition of the dignity, worth and equality of all people.
This call will be expanded, clarified and become rights then people can claim their own States and the international community. The course of the International Covenant on Economic, Social and Cultural Rights is not enough to ensure for everyone access to civil and political rights. It requires implementation of certain social conditions that allow expression of diversity and creativity in each human nest and allow them to take charge of their own freedoms.
Thus, both the Universal Declaration and the Covenant on Economic, Social and Cultural Rights, will specify a notion of development (later properly point out in the Declaration on the Right to Development, 1986) which has its counterpart in certain rights that can be claimed by individuals and by peoples. It is here outlined in detail the specific rights and should have access to: civil and political liberties, housing, health, education, fair wages, social welfare, non-discrimination.
However, strictly speaking, the International Doctrine of Human Rights does not provide or define a particular model of development, nor says whether it should follow guidelines of a liberal or socialist, for example. But, this is very important, provides a framework of values, ethics becomes a paradigm for any development model intended to be "integral." This sort of paradigm organized around human rights becomes a requirement for policy and development ideas that are implemented in practice, which must, to achieve their goals, make its specific rationality in terms of safeguarding and promoting dignity and freedom of every person and of creating social, economic and cultural factors that contribute to overcome inequalities within countries and internationally.
other words, from the perspective of Human Rights will be invalidated all those expressions and policy development, anywhere in the globe, involving: impose an idea of \u200b\u200bdevelopment without consideration of the participation of the teenagers involved, that is, consider the person as an object and not as subjects of development, a practical orientation that does not consider the satisfaction of material and nonmaterial needs for all (especially the most disadvantaged and marginalized groups), implementation of policies that enhance, so exclusive, its economic aspect which made conditional end, intentionally or not, other variables of development (political, social, cultural).
The notion of "development" has joined him, especially since the sixties, "self-determination of peoples."
4 ° Self-Determination of Peoples
is common confusion between the concept of self-determination and self-determination, because both notions agree to the same subject, the people seen from one main feature sovereignty.
However, Both notions represent a different circumstance. Self-determination is related to the autonomy of a state, ie, the right of a state to have political independence, cultural and economic and is expressed in the fact of not being subjected to alien domination or foreign. This concept was especially in the heat of the processes of decolonization, which had its epicenter in Africa during the decades of 50 and 60.
Different is the meaning of the notion of self-determination of peoples. This refers to sovereignty that any nation has to decide his fate, to have full control over resources and promote a culture that restores your identity.
Self-determination of peoples is a fundamental concept in the context of development. In this sense, is held in the International Covenant on Economic, Social and Cultural Rights (Article 1) that "all peoples have the right to self determination" and by the exercise of this right may have the institutional forms, social and political their own choosing on the basis of their economic, social, and cultural. Furthermore, as sovereign peoples are recognized as owners of the resources found within their territory no one other than he has the right to alienate.
This recognition allows states, Taking into account their own characteristics, design their own paths to solve their problems, especially in the field of economic and social development. Sovereignty over resources can build the foundations necessary for creating a policy for the development of people.
One of the topics related to the issue of self determination, that of international solidarity, because the sovereign domain of countries over their resources, their political y. their culture, not necessarily guarantee success in the design of policies aimed at improving the living conditions of people, this situation occurs, especially on those nations that do not have sufficient own resources to meet the challenges imposed by the development .
why the international community should respond jointly to potential requirements that a State may submit for not having administrative skills or materials. This attitude of the international community can not diminish or undermine the principle of self-determination that has been exposed.
Free determination is, in this context, one of the key elements governing relations between states because it guarantees the sovereignty of peoples.
The challenge of building a culture based on respect and recognition of Human Rights
respect and observance of human rights is, first, a state responsibility. The State is responsible to subordinate their organization and their actions to those that have international standards on these matters.
However, this does not exempt of responsibility for the issue to the public. First, because it is they who must require compliance and, secondly, because it is in daily life, in everyday relationships that occur at home, in schools of education, social and political organizations, which convey the values \u200b\u200band principles underpinning the Human Rights .
that safety standards are effectively respected Human Rights "can only be achieved in a society that has a culture truly inspired by the unconditional recognition of the essential rights of man, in which respect for same flow as a natural consequence inherent in the way of daily living, and they show in the whole area of national affairs, whether public or otherwise. "
Most of the rights enshrined in international human rights documents are related to behaviors, attitudes and ways of doing things that are normally learned in daily life. These gestures, the way people relate to places where they study or work, family life and, in general, all activities taking place in society.
The possibility of installing a culture inspired by the Human Rights passes, then, because in these instances people are respected in their dignity and rights.
Likewise, it is vital that society, and within that citizens take a proactive role for the media who report the values \u200b\u200band principles that must prevail. The demand for rights and the fulfillment of the duties associated with them should characterize the city's present and future. Promoting critical for the continued debate in a climate of tolerance libertarian is the seedbed of a culture that respects human rights.
If people are able to respect others in their dignity and rights, the possibility that the state is violating the fundamental rights remote because, ultimately, is people who take responsibility in institutions and behavior, ultimately, is only a reflection of what that society is a normal behavior.
In summary, the training of citizens in the principles of human rights is a task for the whole nuclear bodies in our society, each and every one of them has a responsibility in the task of achieve a coexistence based on Human Rights.
Report of the National Commission on Truth and Reconciliation Ministry of Communication and Culture General Secretariat of Government, Santiago, 1991. Volume 11 p. 861.
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