Appunti Fundamental Rights- The fundamental rights

Fundamental rights

Fundamental human rights and fundamental rights are terms often used interchangeably. As a general definition:

• Human rights are commonly understood as inalienable fundamental rights to which a person is inherently entitled simply because he or she is a human being. For example, the Universal Declaration of Human Rights adopted after WWII.
• Fundamental rights are commonly understood as the rights of a country's citizens that are stated in the constitution. Every modern constitution (long constitutions) lists a number of fundamental rights and freedoms. For instance, rights in the Italian Constitution.

The difference

The theory of human rights has a more universal nature – they are based on universality, while fundamental rights are more linked to a specific legal order. Fundamental rights are enshrined by national constitutions, but also at a European level, through the Charter of Fundamental Rights of the European Union. Nonetheless, they are often used interchangeably.

Classifications

Basic opposition: classical vs social rights

Classical rights are often seen to require the non-intervention of the state. They are intended as negative obligations. Classic rights entail an obligation for the state to refrain from certain actions. For instance, personal liberty entails that the state must not arbitrarily limit the personal liberty of the individual. There is a duty to achieve a given result (‘obligation of result’). Classic rights are so defined because they were enshrined in the first constitutions. Some of them were recognized even before constitutionalism emerged. For example, the rights of habeas corpus were protected also by the Magna Carta.

On the other hand, social rights require the active intervention of the state. They constitute positive obligations and oblige the state to provide certain guarantees to individuals. The duty to achieve a given result is replaced by the duty to provide a means to achieve the specific result. They were enshrined by constitutions adopted after WWII: right to pension, social assistance, education, housing, public health, and so on. For example, the state should use the money collected through taxation to provide means to achieve fundamental rights.

Dichotomy between classic and social rights - disputable

Many classic rights, such as civil or political rights, often require a considerable investment by the state for protection. On the other hand, most social rights contain elements that require the state to abstain from interfering with the individual’s exercise of the right. Those elements constitute negative obligations connected to social rights. This distinction is therefore quite disputable.

Civil, political, economic, social, and cultural rights

• Civil rights: It is quite hard to give a comprehensive definition of civil rights. It is easier to list them. The term ‘civil rights’ is often used with reference to the rights set out in the first eighteen articles of the UDHR, almost all of which are also set out as binding treaty norms in the ICCPR. From this group, a further set of ‘physical integrity rights’ has been identified, which concern the right to life, liberty, and security of the person, and which offer protection from physical violence against the person, torture, and inhuman treatment, arbitrary arrest, detention, exile, slavery and servitude, interference with one’s privacy and right of ownership, restriction of one’s freedom of movement, and the freedom of thought, conscience and religion.
• In the Italian constitution, physical and integrity rights are protected. Although not strictly an integrity right, the right to equal treatment (provided by art.3, which derives from the principle of equality) and protection in law certainly qualifies as a civil right. Moreover, this right plays an essential role in the realization of economic, social, and cultural rights.
• Another group of civil rights is referred to under the collective term ‘due process rights’. These pertain, among other things, to the right to a public hearing by an independent and impartial tribunal, the ‘presumption of innocence’, the ne bis in idem principle (freedom from double jeopardy - from being condemned twice), and legal assistance.
• Political rights: In general, political rights are those set out in Articles 19 to 21 UDHR and also codified in the ICCPR. They include freedom of expression, freedom of association and assembly, the right to take part in the government of one’s country, and the right to vote and stand for election at genuine periodic elections held by secret ballot. In the Italian Constitution, the freedom of association is enshrined under Articles 18.
• Economic and social rights: Articles 22 to 26 UDHR, the economic and social rights are listed in and further developed and set out as binding treaty norms in the ICESCR. These rights provide the conditions necessary for prosperity and well-being. Economic rights refer, for example, to the right to property, the right to work, which one freely chooses or accepts, the right to a fair wage, a reasonable limitation of working hours, and trade union rights. Social rights are those rights necessary for an adequate standard of living, including rights to health, shelter, food, social care, and the right to education.
• Cultural rights: Articles 27 and 28: The UDHR lists cultural rights in the right to participate freely in the cultural life of the community, the right to share in scientific advancement, and the right to the protection of the moral and material interests resulting from any scientific, literary, or artistic production.