Collective Rights

A collective right is one whose object can only be enjoyed by a community; that is, it is a right whose subject is not the individual, but a collective entity: a people, a nation, an ethnic minority, a community.

The traditional subject of human rights is the individual. This is a constant from the doctrine of natural rights (see Natural rights, doctrine of) and the Declaration of the Rights of Man and the Citizen of 1789, to the numerous declarations and human rights treaties that have been drawn up within the UN and from regional organizations such as the OAS and the Council of Europe. This is because the concept of human rights emerges from an eminently liberal matrix in which the individual is the basic unit of moral value. In this sense, in the traditional doctrine of human rights, communities have not been considered, per se, as subjects of human rights. A look at the UDHR and the main international human rights treaties confirm this point (see in particular the ICCPR: article 27 and the Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities). An important exception in this sense would be article 1 common to the ICCPR and the ICESCR, which recognizes the right of “peoples” to self-determination. However, it must be stressed that there is no consensus as to what kind of collective entity can be considered a “people” and therefore as possessing a (collective) right to self-determination.

The debate on collective rights became animated at the end of the 1980s and beginning of the 1990s, when indigenous voices began to demand the recognition of a series of rights that could only be exercised by the peoples themselves: self-determination, autonomy and the preservation of its cultural particularity. This claim was partially taken up by ILO Convention 169 of 1989, which grants a series of rights –related to the preservation of their cultural particularity– to indigenous and tribal peoples.

Economic, social and cultural rights

Human rights of a social nature, designed to guarantee a minimum base that allows the person to enjoy well-being (material, symbolic and protection of the environment), with the aim of ensuring the satisfaction of the basic needs required for the enjoyment of a dignified human existence (CDESC, 1996; Canessa, 2001). Among these rights we find the following: right to food, to health, to work (to a fair and equitable salary, to rest, to unionize, to strike), to social security, to housing, to education, to property (individual and collective), to economic security, to a healthy environment, to participate in the cultural life of the country and to enjoy the benefits of science, scientific, literary and artistic research.

From their origins, these rights were marked by a differentiation from civil and political rights, mainly due to a mistaken idea that considered ESC rights as programmatic rights that could not be justiciable. This conception with the passage of time has been overcome. The General Comment No. 3 of the Committee on Economic, Social and Cultural Rights regarding the nature of the obligations of the States Parties to the ICESCR (CDESC, 1990), has been very useful for this. In a special way, the Committee clarifies in this General Comment that although the adoption of measures that are required for the validity of ESCR are of a progressive nature, there are also obligations of immediate effect (for example, the commitment to guarantee that the rights are exercise without discrimination). In any case, the States Parties to the ICESCR have the obligation to report the progress achieved and the reasons why they consider that the measures followed are the most appropriate.

Human rights, history and characteristics of the concept of

The clearest origins of this concept can be found in the doctrine of natural rights, which emerged towards the end of the 17th century as a direct response to the abuses of absolutist monarchical power, proposing the existence of basic rights of the individual above the State authority (see Natural Rights, Doctrine of). This doctrine had a direct influence on the Declaration of the Rights of Man and the Citizen (promulgated in France in 1789) and on the first 10 amendments to the Constitution of the United States of America (the so-called Bill of Rights, of 1791), in which we find two separate catalogs of civil liberties and fundamental political rights of the individual that could not be violated by the authority of the State. This proposal finds its basic foundation in a radical change in Western thought, characteristic of the Enlightenment: the positioning of the individual (free and equal in rights) as the fundamental unit of moral value.

At the end of World War II, and largely as a direct reaction to the barbarism and atrocities committed by the Nazi regime, the "(natural) rights of man" approach of the late 18th century was taken up and reformulated by the nascent UN, which set as one of its purposes "the development and encouragement of respect for human rights and fundamental freedoms for all, without distinction for reasons of race, sex, language or religion" (UN Charter: article 1.3 ).On December 10, 1948, the UN General Assembly adopted the UDHR, in which the international community expresses its aspiration to build “a world in which human beings [are] freed from fear and misery” (UDHR: second preambular paragraph). In line with the doctrine of natural rights, the fundamental rights proposal that arises with the UDHR posits the existence of a series of rights inherent to the individual; finding foundation, however, not in the condition of the person as a creature of God, but in his own value. The basic philosophical foundation of the UDHR –and therefore of the contemporary concept of human rights– is, then, the intrinsic dignity of the human person.

Human rights are –according to the approach that has been developed based on the UDHR itself– inalienable (within certain legal limits) and universal (they belong equally to all members of the human family, beyond any territorial border or limit). social, racial, ethnic, cultural, political or economic), and must be protected by law. On the other hand, if the subject of rights is the individual, the bearer of obligations is the State; that is, even when the actions of non-state agents can cause human rights violations, the primary responsibility for respecting them, guaranteeing their respect by third parties, and promoting their realization corresponds directly to the State.

The UDHR took up the catalog of civil liberties and political rights originally proposed in the classical documents of the late eighteenth century. However, it also included a series of economic, social and cultural rights, advanced during the first half of the 20th century in some constitutions, such as the Mexican, the Soviet and the German. Despite this differentiated development over time between the different groups of rights, human rights, as a whole, are equal in hierarchy and interdependent with each other.

Finally, one of the basic characteristics of human rights is the international nature of their monitoring, promotion and protection. Articles 55 and 56 of the UN Charter established an agreement – ​​endorsed in the Tehran Proclamation of 1968 and in the Vienna Declaration and Plan of Action of 1993 – in the sense that the observance of human rights anywhere on the planet legitimately concerns the international community as a whole.

In short, human rights are inherent to every person, universal, inalienable, indivisible and interdependent, while their realization implies an eminently international project.