In general, with the study of Constitutional Law and International Law regarding Human Rights, it can be stated that these present the following characteristics: Historicity, Universality, Relativity, Essentiality, Irrenounceability, Inalienability, Imprescriptibility, Inviolability, Complementarity, Effectiveness, Interdependence and Competence.
Characteristics Human Rights
Let’s now look at each of these characteristics human rights in detail:
It means that human rights did not all emerge at the same time, they are fruits of historical conquests; They are built gradually and expand throughout history, due to the struggle of social movements to affirm the dignity of the human person.
This characteristic is what bases the idea of generations/dimensions of human rights.
Human rights are not natural rights, which derive from the nature of things, as was stated in the period of liberal revolutions and the overcoming of the old Absolutist State. Well, what is natural is timeless, that is, it was always there, and that is not what happens with human rights, which were conquered throughout history.
It should be noted that the historicity of human rights is expansive, that is, there is no suppression of rights (prohibition of retrogression) already recognized in the legal order, but rather an expansion of the protection of the individual, recognizing new rights.
This characteristic guarantees that human rights encompass all individuals, regardless of nationality, color, religion, sexual preference, politics, etc. That is, these rights are intended for all people (without any type of discrimination) and have a universal territorial scope (worldwide).
Despite the universality of human rights and the search for the dignity of the human person, it is difficult to promote such a concept in different cultures. Thus, this universal conception of human rights is usually confronted with ” cultural relativism “: the culture of each country would be an obstacle to the validity of the same group of rights in all countries.
The key point is to define to what extent cultural relativism can justify internal practices of a State that, from an international perspective, are harmful to human rights.
The idea of strong protection of human rights and weak cultural relativism has prevailed, a conception that affirms that cultural relativism cannot be ignored, but it cannot be defended to the point of justifying human rights violations.
What should be understood by universal is the idea that the human being is the holder of a set of rights, independently of the laws and culture of each State, and not the idea that the right x, y and z has to be recognized in all the states.
This characteristic shows that human rights are not absolute, and may have limitations in case of confrontation with other rights, or even in cases of serious institutional crisis, as occurs, for example, in the decree of the State of Siege.
For example, the right to freedom of expression can be relativized to harmonize with the protection of private life, not admitting that expression reaches the point of offending someone’s image; The right to development can be relativized to make it compatible with the right to the environment and so on.
It is worth highlighting an exception to the relativity of human rights: torture is a prohibited practice in any situation, and its absolute nature must be recognized. It can be said then that the characteristic of relativity is also relative.
It means to say that human rights are inherent to the human being, having two aspects, the material aspect that represents the supreme values of man and his dignity and the formal aspect, that is, it assumes a prominent normative position.
The renunciation of human rights is not possible, since, as they are rights inherent to the human condition, no one can renounce their own nature.
From this characteristic it follows that the eventual expression of the person’s will to abdicate his or her dignity will have no legal value and will be considered null and void.
An example is the famous French case of “dwarf throwing”, a type of “entertainment” formerly adopted in French bars, consisting of throwing dwarfs towards a “track” of mattresses, as if they were human darts.
In the case, people gathered in bars to compete in “dwarf throwing” tournaments, with the winner being the one who managed to throw the dwarf the furthest on the “mattress track.” In a French city, the City Council banned the practice, interrupting a bar that promoted disputes, and the case was detained in court, reaching the Council of State, the highest instance of French administrative justice, and the body adequately understood the position. of public power.
The great detail is that the ban was questioned on the initiative of a dwarf, who claimed that the practice represented for him a form of work, important for his survival, and that the French legal order protected the right to work.
The dwarf even took the case to the UN Human Rights Committee, which agreed with the decision of the French jurisdiction, stating that the practice would violate the dignity of the human person.
The inalienability of human rights raises important discussions that involve the right to life, such as euthanasia, abortion and the refusal to receive blood transfusion. The basic question is the following: if life is inalienable, how can euthanasia and abortion be validated? Is there a risk of death, should the person’s willingness not to accept the blood transfusion be considered?
The answer to these questions involves understanding the relativity of human rights and the need to harmonize them with other values; It must be considered that, despite being inalienable, human rights can be relativized in a specific case due to the need to harmonize them with other values.
It means that the claim to respect and concretize human rights is not exhausted by the passage of years, and can be demanded at any time.
In other words, the course of time does not reach the claim of respect for the rights that materialize human dignity. The imprescriptibility of human rights should not be confused with the prescription of economic reparation derived from the violation of human rights.
These are different situations, different claims. One thing is the claim to respect human rights, to not violate the law; Another is the claim for reparation of damage caused by the violation of a right, which is subject to a prescriptive period. In this case, it is possible to demand, at any time, that a situation of damage to human rights cease, but, otherwise, the economic compensation resulting from the damage generated must be subject to the prescriptive deadlines provided for by law.
Impossibility of disrespect or non-compliance due to infraconstitutional determinations or acts of public authorities, under penalty of civil, administrative and criminal liability. Complementarity, Unity and Indivisibility: human rights should not be interpreted in isolation, but rather jointly and interactively with other rights.
This characteristic removes the idea that there would be a hierarchy between rights, as if some were superior to others, and proposes that all rights are enforceable, as they are all important for the materialization of human dignity. Thus, although there is a difference between rights, there will be no superiority, as they are all equally enforceable and important to the materialization of human dignity.
The actions of the Public Power must guarantee the effectiveness of the human rights and fundamental guarantees provided, through coercive mechanisms, since the Federal Constitution is not satisfied with simple abstract recognition, the rights must be guaranteed in the specific case.
Rights, despite being autonomous, have various intersections to achieve their purposes. For example, freedom of movement is closely linked to the guarantee of habeas corpus, that is, if an individual suffers illegal imprisonment, he cannot simply plead freedom of movement and get out of prison, he must petition for habeas corpus so that the prison illegal is punished and his freedom is guaranteed.
It means that human rights are not objects of trade and, therefore, cannot be alienated or transferred. Human dignity, for example, cannot be sold. Inalienability cannot say, however, that economic activities cannot be carried out using a human right.
This characteristic reveals the possibility of human rights being exercised concurrently, cumulatively, at the same time. At the same time that I can exercise my right to life, I have the right to be free, to have housing, to work, to study, to have a standard of living capable of guaranteeing myself and my family, health and well-being, including food, clothing, medical care and essential social services, in short, having a dignified life.