tugas huham (english version)

Alden Martin (1106072305)

Hukum dan Hak Asasi Manusia

THE FUNDAMENTALS OF HUMAN RIGHTS

1. Introduction

When first trying to understand the concept of human rights, there will be at

least two questions arose: what are human rights? And what difference can they make

to a person?

Human rights does not only apply to extreme situations which involves a state

in which a country is banishing all the rights of their citizens, it also applies to daily

occurrence, meaning human rights violation happen everyday, and right under our

noses. An example is the story of a woman and her child were begging on the street,

and were pushed away by policemen, just because that particular policemen didn ’t

spoke the woman’s language, also were not knowing her background and how she got

on the street.

At this day and age, the awareness of human rights shows a massive amount

of progress. For example, the fact that girls are able to get their educations, even to go

on to higher educations, also it is easier to get health services nowadays than in the

past. Despite the amount of progress achieved, there are still violations reported to

this day, this includes people living in really bad conditions and below the poverty

line.

1.1. Definition of Human Rights

Human rights are simply the rights possessed by persons, who, as persons,

deserve to have their freedom or standards of living. It is an internationally

recognized standard, which stipulates how every single human should be treated,

despite where they are or the situation they’re in. The United Nations and other

organizations are still debating about the numbers of human rights that are

internationally acknowledged, and so human rights are still expanding. Human

rights can be described by what they provide for humans:



Freedom to do certain activities (travel, express themselves, or

practice a religion).

Freedom from certain conditions (torture and slavery).

Rights to services (education, health, fair legal system, and the

ability to work).

1.1.1. Being Human

There are no special qualifications, conditions or knowledge needed to

acquire human rights. Obviously, human rights have to be exercised by humans

rather than animals or plants. Yet, what becomes an issue here is the line of when

someone becomes a human and when someone stops being a human.

The definition of when someone becomes a human is still vague.

However, most of people declare that life begins at birth, which may be the best

answer to this complex question. There is twofold on human rights, taking an



example of the issue of abortions. On the one hand, the legal definition will

determine the legality of abortions or the termination of pregnancies. But on the

other hand, this definition has significant implications on reproductive health and

women’s rights around the issue of the pregnant woman’s rights to decide what to

do with the unborn child.

Someone stops being a human when they are dead. Even so, what is the

case if someone is pronounced to having a mental illness or brain dead/damaged?

When a life support machine determines these people’s lives, are they still

considered as human beings? Humans are considered as so when they still have

their consciousness also their rational thinking, so actually by answering these

questions is the way to determine whether someone is still considered as human

or not. So, as they interact rationally with the community, it also defines someone

as still having their rights intact.

1.1.2. The Rights of Humans

The acceptance of right is solely because it is thought as ‘correct’. A right

is something owed to a person, which mean what a person is rightly entitled to,

free to do, or protected by. From a legal perspective, a right, firstly, must relate to

an object. This means that for each type of right there are specific privileges.

Secondly, it has to relate to someone or something that has a duty to provide that

right. This means, that there has to be a second party whom can uphold the right.

The second party could be the State, a company, or even a university. Rights do

not only apply to humans. Even though only humans that seem to have the ability

to exercise rights, but others (such as corporations and animals) have their own

rights, which humans should ensure. However, it does not mean that the rights are

equivalent to that of human rights.

1.1.3. The Foundation of Human Rights


Hukum dan Hak Asasi ManusiaHuman rights are formed at the intersection of legal, moral, and social

rights. Which means that human rights lie across these three rights. Human rights

as a legal rights means that it should be considered a right by the law. If it is not

considered as rights by the law then the government will only respect human

rights because it is ‘right’ or ‘moral’, however it goes a long way if human rights

are considered as law because then human rights will be respected by the

government on account of they are legally bound to uphold them. Then, human

rights are obviously moral rights. This is because human rights exist in view that

they are considered moral and proper. Moral rights in a society are based on their

corresponding believes, so when their moral rights have been violated, then

people in that society certainly be acknowledged. Nevertheless, this does not

mean that morals never change, but that respect and the actions that people do is

essentially the same everywhere in the world. Lastly, human rights are social

rights. Human rights guarantee that humans seize a safe and happy life as a

community in a society. Even though law protects not all social rights, yet it is

still an assurance for the well-ordered society. These social rights contain the

expectation of what the government should provide, also as a result of living in a

community.

Natural law is one of the theories that become foundation of human rights.

Which implies that rights and obligations are universal and widespread as nature

itself, for example moral as something someone is undoubtedly born with. The

topic of natural law has been controversial. Firstly, it is because ‘natural’ has

changed over time. Secondly, it is often associated with religious thinking, and

especially connected with the Roman Catholicism. Besides natural law, human

rights are also argued by legal positivism view. Human rights are viewed as a

social conduct, it is developed to give humans special rights and duties, and also a

subject to development, modification, and rethinking. One of means in which

human rights become universally known, is because the help of religious leaders,

moral philosophers, and jurists which elaborate moral standards. Other factors are

because human rights are written into international law, participation of States in

the UN system that enforces international law, and states following the standards

of human rights.


Hukum dan Hak Asasi ManusiaThe development of human rights arises from the response to the World

War II (WWII), when human rights still varied throughout the world, depending

on different backgrounds. From the events in the WWII, provoked to put together

human rights that are legally binding on all States as universal standard.

1.2. Fundamentals Features and Concepts in Human Rights

Human rights have special features, setting these rights apart from other

types of rights.

1.2.1. Universality

It is universal, this means human rights are not dependent on citizenship,

and it makes sure that everyone has human rights that are within reach

worldwide. However, the exact form may be different, depending on where the

person is, who they are, and what rights should they possess. This is as a result of

not all governments ratified the same rights. Lastly, it also may be based on the

situation.

1.2.2. Inherent

It come into effect when a person is born, automatically, they do not have

to learn about human rights first and exists even if a person is unaware of their

rights being violated by another party.

1.2.3. Inalienable

Someone can’t be deprived of their human rights as a consequence of their

actions, in spite of them being guilty of doing something bad. Even so, human

rights can change for a person, meaning someone who has reached a certain age

can have different rights than they did before.

1.2.4. Dignity



The objective for human rights is that people are respected, treated well,

and have a sense of worth. This means that dignity is not just making sure that the

laws are not broken, but it is about the treatment of people in a particular way that

they should be respected as humans in general.

1.2.5. Equality

The main purpose of equality is that humans should treat others without

any discrimination involved. As stated in the first article of the UDHR, "All

human beings are born free and equal in dignity and rights." However, equality is

different everywhere, for example true equality between the sexes are still not

reached yet. Though equality ensures people to receive the same treatment,

sometimes the expectation is not equality but fairness. An example of this is the

university admittance that looks at the result of the admittance test fairly, and not

equally–not everyone have the equal right to be admitted. When a person is

treated differently because of a certain characteristic that they have, that is what is

called discrimination, which may take form as discrimination against women,

race, religion, etc.

1.3. Human Rights Law: Rights and Duties

Human rights are not like moral rights in general, it is understood as laws

which are protected by legal bodies. On that account, it discourages people and/or

organizations from breaking human rights.

1.3.1. The Rule of Law

As it is said before, the law binds human rights. Moreover it makes sure

that there is a fair, working legal system, which could only happen if the society

was based on the idea of the rule of law. This means that everyone will be judged


Hukum dan Hak Asasi Manusiaand protected by the same law–therefore keeping them safe, everyone will be

equal before the law–nobody should be able to escape the effects of the law,

everyone will have the same protection before the law–the law should not exist to

protect a select group of people, legal rules will be public knowledge without

‘secret’ understandings known only to a selected few–information should be

freely available, and individuals will have the right to find assistance to

understand to law.

1.3.2. Human Rights Duties

The duty bearers–which can include the government, people,

corporations, etc.–has a duty to ensure human rights are protected. State as the

most important duty bearer as the organization that is legally bound to uphold

rights in treaties. In the ASEAN Human Rights Declaration, human rights should

not only be considered as freedom, rather as obligations, that is ensuring the

governments obligations are fulfilled. The State have corresponding duties as the

duty bearer, which consists of the positive duty–a duty to do something, and the

negative duty–when the State is urged to be passive. These duties may be fused in

a right, or each considered separately in one right or the other.

1.3.3. Vertical and Horizontal Protection

Vertical protection means that a person seeks protection from the State,

and horizontal protection means that a person seeks protection from other people,

corporations or groups. Human rights are fundamentally about vertical protection,

that is protecting the person from the power of the State, but nowadays, vertical

protection is also considered as well. Even though individuals are not exactly

legally bound to human rights treaties, but the State is there to ensure that

individuals comply to the law by way of remedies like compensations or

punishment for perpetrators.

1.3.4. State Duties: ‘Respect, Protect, Fulfill,’ and ‘Promote, Protect,

and Prevent’



The UN attempted to define what the State should do to support human

rights, which is issued in two statements. The first statement declared that the

State should respect, protect and fulfill rights. However, in the second statement,

they considered that respect and fulfill aren’t exactly accurate for explaining what

the State should be doing, so it is modified to: Promote–actively builds awareness

and also teaching human rights in universities, and so on; Protect–so that

individuals are safe; Prevention–to avoid violations to happen in the first place.

1.4. Categories of Rights

It is important to describe the different categories of human rights,

because the rights and duties vary from each other. Different categories of rights

have different features, without ranking them against each other, because each is

just as important as the others. Nevertheless, the fact is that some States prefer

certain categories over others, leading towards a division in the protection of

human rights. These below are categorization of human rights:

Fundamental rights, which consists of freedom from slavery and

torture, the right to life, non-discrimination, and that everyone is born

equal. These rights are considered the most important by the UDHR.

With these rights, the States can never give an reason for the violation

of fundamental rights.

Rights in the legal system, that ensure individuals to be able to enjoy

an equal legal identity, legal system that is based on true justice, access

to a court and court being fair, competent and impartial. Also, equality

of treatment and if arrested, to be treated well. Further, include

freedom form arbitrary arrest and detention and presumption of

innocence;



Rights in society, focuses on an individual’s ability to participate in

society and live with dignity on a daily basis, also on limiting the

power of States to interfere with individual freedoms in society. It

includes privacy, of movement within a country, right to marry,

practice religion, and of expression.

Political rights, allows people to participate in politics, at the same

time ensuring a fair political system. Including the right to vote, be a

politician or government officer, to associate, form a legal party or just

be a member of a group. Additionally, the right to assemble, which

comprises meetings to protest a government/work condition, to raise

awareness issues, or to take part in a cultural activity.

Economic rights, ensures people have enough money/resources to live

with dignity in their community. This includes the right to work, being

paid fairly by their employers, provided with a safe and healthy work

environment. This also includes the right to rest and leisure.

Social rights, including the right to healthcare and education, food,

water and housing. It is argued that these rights are based on the idea

of social contract, which is between individuals and their government.

It assumes that if people live peacefully and lawfully, then the

governments will provide certain services, and protect other services

people provide for themselves. Those several services that are provided

by the government consist of an education, also a healthcare system.



Cultural rights, basically rights for a person to participate in their

culture. This includes rights to language–prevent States from barring

people speaking their language, religion–allow people to chose their

religion and to practice as a group, and cultural activities–right to eat,

wear clothes, marry, hold a funeral, and celebrate events, according to

the culture.

1.4.1. The Separation and Unification of the Categories of Rights

It is useful to divide the rights on account of each category being slightly

different in characteristic of the rights and duties. Even so, by separating the

rights into categories, making it easier for governments to prefer one category of

rights than the other or by selectively choosing which one to support. In the

period of 1950 and 1990, the countries that support civil and political

rights and those supporting economic and social rights occur simultaneously as

the Cold War happening. The rich countries thought that there is no need to deal

with economic and social rights, therefore they only tend to civil and political

rights. On the other hand, the communist countries considered that as a

government, there is a need to provide education, health and free economic

welfare, but they did not support political rights.

“Three generations” theory is a theory that suggests that civil and political

rights were the original rights, therefore it is primary and fundamental and has

been around much longer, whereas economic, social, and cultural rights come

second. It also assumes that the categories can be separated. Nevertheless,

contemporary thinking around rights argues that this is not the case.



1.4.2. VDPA: Vienna Declaration and Programme of Action

The VDPA is the outcome document of the Second World Conference on

Human Rights (1993) in Vienna. The concept of “all human rights for all” was

codified. Also, it puts and end to the idea that human rights change according to

cultural particularities, so human rights is not exclusively a national matter and

concerns the international community, thus it is interdependent and mutually

reinforced the other. That is to say, that there cannot be rights without democracy,

democracy without development, and development without human rights. So,

basically human rights are indivisible, inter-dependent, and inter-related.

1.5. Importance of Studying Human Rights

Firstly, it is to understand why there are people that do not receive the

same protection and freedoms as others, therefore there needs to be a greater

understanding of how human rights work. In short, the reason as to why it is

important to study human rights at a university level is because of human rights

education is considered as human rights, the importance of protection, and the

value added rights education gives to other university study.



1.5.1. Human Rights Education is a Human Right

Education of human rights is a human right itself. It is because rights work

most effectively when it can be claimed because the people know their rights. It

is also an important contribution to the civil functioning of society.

1.5.2. Protecting the Vulnerable

There are still groups of people within the world who do not have

protection of their human rights, namely migrant workers, or other minority

groups experiencing discrimination. While people that are born well off often do

not recognize the protection they receive because it is invisible, and assume

everyone gets it or is entitled to it. Examples of the reasons in which people do

not receive protection is that they are discriminated against, too difficult to help

them because they live a long distance from government, or they are not

considered citizens. Even so, a greater knowledge of human rights does not

guarantee protection, but it does help, because they are less likely to violate the

rights.

1.5.3. Human Rights Provides a Regional Understandings

This mainly concerns the countries in Southeast Asia, where there is

already a development on the regional level response to human rights concern.



The problems that are faced in Southeast Asia include young children that are

forced to work, political opponents jailed, and other problems.

1.5.4. Human Rights Education Adds Value to Other Knowledge

Others knowledge that are added in studying about the human rights

includes studies in law, political science, sociology, philosophy, also international

relations. Students will gain better understanding on how people relate to

governments and communities.

Commentary on Human Rights Materials

Materials regarding human rights that have been resumed above are so

elaborative. The author describes about fundamentals of human rights

comprehensively but not hard to understand. People must know about the

fundamentals of human rights because they’re humans, they possess human rights

itself. Therefore persons must know things relating to these rights. I agree that it is

important for everyone to acknowledge his or her rights. People should know how

to use it or how to apply it so that people can live freely without any kind of

intimidation. Resume above has given a holistic explanation about the

fundamentals human of rights. But still, it needs commentary.

We are living in a world limited by laws, regulations and act of morals,

which set up to ensure that everyone can live together without any riots occurred.


Hukum dan Hak Asasi ManusiaWe are also living in the world that has laws that can be judged upon us, either it

is an international law or national law. We should be aware of any laws amended

and be used upon us. Law students, lawyers, or any law experts mostly know how

to interpret laws. But most of people are still ‘law blinds’, they do not know or do

not understand precisely about these provisions or laws they are living. Those

people can be tricked by the other people, governments, or even States regarding

the applications of the law. Some people do not have the awareness of human

rights, essence of their rights in general. Some people only accept their condition

e.g. : living under threats, being discriminated by people, while they have rights to

live freely under human rights.

As written in the resume, that people have the rights to live with dignity,

while beggars, people whose lives are below poverty line, or those discriminated

women do not know this thing. They are invisible to people, that as if other people

hurt them, nobody would care because they are considered worthless and useless.

Studying the human rights makes it clearer for us, that these people also must be

defended and protected as humans, while most of the people do not care about

their presence.

First thing that all of us must know is that we are born equal. Everyone is

a subject of laws, and laws are clearly acknowledge human rights, and since the

laws are obligatory, everyone should have committed it, but the fact is, people do

not really pay attention, do not really put care on fundamental rights, especially

for human rights.

For the conclusion, I agree with the author’s perspective regarding the

fundamentals of human rights. Information about human rights must be spread

around the world, it is basically everyone’s job, primarily for those who are aware

of laws and claim themselves as justice defenders. Human rights violation is still

occurring nowadays, especially on develop countries, for example Indonesia. The

constitution of Indonesia put a high appreciation on human rights. But human

rights violation still occurs such as women discrimination, vandalism, criminal

action, etc. As a law student, we must help Indonesia to develop, and the first

thing to do to help this country is to reduce the poverty level, by educating them

and motivating them to live better. To gain somebody’s interest to live better is by


Hukum dan Hak Asasi Manusiamaking them notice that they have those chances, and the most absolute aspect of

those chances are they actually have the rights to it. We must make them aware

that they can live better, financially, mentally or even socially, and The State

protects that capability, so they must not feel intimidated by anyone.

Studying human rights is also our moral responsibilities, and to

understand the wider scope of law, we must learn the basics. Human rights is one

of the basics we must understand.

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