Human rights are widely considered to be those fundamental moral rights of a person that are necessary for a life with dignity. They are seen as the means to a greater social end. There have been numerous treaties and conventions outlining what these rights are. However, despite laws and international institutions, there is still a great deal of controversy over the question of human rights. These involve issues regarding the universalism or otherwise of these rights, whether there is a consensus about them and if so, whether that consensus is regional or global and how it could be reconciled to questions of sovereignty, the rights of nations and peoples to self determination. These issues make it clear that any assumptions about human rights are fraught with questions about the scope and legitimacy of these rights and about priorities.
Most liberals would argue that human beings have certain rights like the rights to life, property, the freedom of speech, and so on which are inalienable and cannot be traded away and are unconditional- the only acceptable reason for constraining any one individual is to the protect the rights of another. The primary function of a govt therfore is to protect these rights and political institutions are to be judged on their performance of these functions. Early organisations that sought to promote human rights did so with the understanding that sovereignty was over riding. Such institutions include the Hague Convention of 1907 and the Geneva Convention of 1926. For much of the 19th and the early part of the 20th century, humanitarian impulses could only take the form of impulses and standard setting. The willingness of liberals to extend their thinking on human rights in a more interventionist direction has been characteristic of the second part of the 20th century. The horrors of the 1914-18 War stimulated attempts to create a peace system based on a form of international government, and although the League of Nations of 1919 had no explicit human rights provision, the underlying assumption was that its members would be states governed by the rule of law and respecting human rights. The post 1945 humanitarian impulse manifested itself in a burst of law making and standard setting. Although the 1966 Covenants now have the status of international law, and although the European Convention of 1950 has the most effective enforcement machinery via the European Commission on Human Rights and the European Court of Human Rights, nonetheless for all its declamatory status and lack of teeth, the Universal Declaration of Human Rights adopted by the UN General Assembly in 1948 is symbolically central.
A survey of the various legal instruments and institutions (not including NGOs) that are part of the international human rights regime must begin with a look at the UN Charter. It begins by reaffirming a "faith in fundamental human rights, in the dignity and worth of the human person, in the equal rights of men and women and of nations large and small." It states that the purposes of the UN are, among other things: to develop friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples and to achieve international co-operation in promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language, or religion.
In addition, in two key articles all members "pledge themselves to take joint and separate action in co-operation with the Organization" for the achievement of these and related purposes. However, that a proposal to ensure the protection as well as the promotion of human rights was explicitly rejected at the Charter-drafting San Francisco conference and the Charter expressly provides that nothing in it "shall authorize the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any state," except when the Security Council finds that there has been a "threat to the peace, breach of the peace, or act of aggression." The Charter is also often accused of generality and vagueness in its human rights clauses. Needless to say, the interpretation of the Charter has been at the centre of intense political and legal debate especially when the protection of human rights would require violations of national sovereignty. However, one must also admit that the Security Council has intervened as in the case of the arms embargo being imposed on South Africa, and the its authorization of military force in both Somalia and Haiti.
There are numerous other instruments and bodies that have been set up to promote human rights. These include the UN Commission on Human Rights and the appointment of a UN High Commissioner for Human Rights (the post is currently held by Mary Robinson). The UN Commission for Human Rights works closely with other bodies like UNESCO, ILO and has drafted standards and prepared a number of international human rights instruments. Among the most important of these have been the Universal Declaration of Human Rights, the International Covenant on Economic, Social and Cultural Rights (1966), and the International Covenant on Civil and Political Rights together with its Optional Protocols (1966; 1989). Collectively known as the "International Bill of Human Rights," these three instruments serve as touchstones for interpreting the human rights provisions of the UN charter. Also central in this regard have been the International Convention on the Elimination of All Forms of Racial Discrimination (CERD; 1965), the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW; 1979), the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (1984), and the Convention on the Rights of the Child (1989), each of which elaborates on provisions of the International Bill of Human Rights.
Apart from a profusion of treaties mentioned above, there are various courts that have been set up to deal with human rights. These include the European Court of Human Rights, and the proposed International Criminal Court. Using domestic courts to clarify and safeguard international human rights is a new and still evolving approach to human rights advocacy. To be sure, considerable progress has been made, as perhaps best evidenced in the far-reaching decision handed down by the U.S. Court of Appeals for the 2nd Circuit in Filártiga v. Peña-Irala (1980), in which the court held that the international prohibition of torture, because it is unequivocally established in customary international law and applies regardless of the nationality of the victim or the perpetrator (at least in the case of private litigants), must be honoured in U.S. courts. More recently, in 1998–99, the United Kingdom's highest tribunal, the Law Lords of the British House of Lords, captured international attention when, in response to an extradition request by a Spanish court, it upheld the arrest in England of former Chilean President Augusto Pinochet on charges of torture and conspiracy to commit torture in violation of international treaty law. Although Pinochet was later returned to Chile and declared by a Chilean court to be mentally unfit to stand trial, the Law Lords' ruling established the precedent that former heads of state do not enjoy immunity from prosecution for human rights crimes.
Despite the presence of these kinds of mechanisms, there is hardly any consensus regarding the nature and the implementation of human rights. In recent years, for example, there has been vociferous feminist critique from those have argued that in fact, these universal documents, in varying degrees, seek to uphold a patriarchal view of the family as the basic unit of the family or the subordination of women within it. Traditionally violation of human rights has been seen as an act perpetrated by the state and its agencies rather than by individuals. Most cases of violence against women usually take the latter form. Its recognition in the Vienna Declaration and a demand that states should condemn all forms of violence against women shows how the international language of human rights has been changing. But much work still needs to be done before the framing and implementation of human rights law can be made completely gender sensitive.
It can be argued that the construction of the modern state nation state has been achieved often by the domination and the assimilation of traditional communities. Many contemporary nation-states also contain minorities produced by immigration. In some cases the state and the cultural majority may form a hegemonic bloc which would leave many social groups such as women, gays or the disabled in a structurally disadvantaged position. They may then require special rights to achieve equal citizenship. In such cases appropriate measures of positive discrimination can be justified. Because ethnic groups have common cultures and national groups a sense of political distinctiveness, they raise special problems for nation-state political cultures based on the principle of majority rule. The doctrine of equal and universal rights may support the hegemony of the majority culture over various subordinated cultures. Hence, it can be argued that it problematic to speak of universality without considering such exceptions.
There is also a great deal of controversy over whether minority rights should be explicitly included as part of a legal framework involving human rights. When the Universal Declaration was being framed, the US representative did not want minority rights to be specially mentioned. There was therefore a conceptual disagreement over whether minority rights were human rights or whether human rights did not include minority rights but were the means to solve minority problems. Thus, these disagreements stem from a fundamental clash between collective and individual rights and the position that human rights should occupy within this structure. The important notion is to see whether individuals as human beings have rights or whether these rights are given to them as part of society. In the latter case it could then be argued that certain ‘human rights’ might then be correlative to the rights of a society and guaranteed by it. It thus could be seen as a battle between collective human rights versus collective social good.
The other argument that is advanced against universalism is that it seeks to destroy desirable and desired differences. For many, the things that distinguish us from one another are just as important as the ones that unify us. The Banjul Charter makes a clear reference to the strengthening of ‘African values’ suggesting that these rights and duties are clearly different from non-African ones. The Declaration of Principles of Indigenous Rights adopted in Panama in 1984 by a NGO group, the World Council of Indigenous People lays out positions that are designed to preserve the traditions, customs, institutions and practices of indigenous peoples.
The notion that there is a global consensus on human rights is further challenged by those who argue that ‘Asian values’ are distinct from Western ones and thus the traditional concept of human rights does not apply in many Asian, especially South East Asian countries. It is argued that the promotion of human rights incorporates the promotion of certain concomitant social choices which not be considered binding by those whose values and social choices are differently formed. The Vienna Declaration tried to incorporate this diversity (by saying that the ‘significance of national and regional particularities and various historical, cultural religious backgrounds’ ought to be an integral part of human rights) but this stance has been criticised by many human rights activists. This question of whether human rights should over ride local sentiments then further ties into the debate regarding human rights versus sovereignty and whether the latter can be breached to uphold the former.
With regard to South East Asia, relativists have argued that circumstances differ very widely between different societies and so require differing conceptions of human rights. The specific application of human rights is then best left to the community in question. Many relativists also charge universalists with cultural imperialism. They are considered to be contemptuous of the principle of non intervention. Mahathir Mohammed, the Malaysian PM has argued that Western nations use human rights and democratization to brind ‘instability, economic decline and poverty.’ These would then be used to he accused to threaten and control them. The other argument is that Asian societies place greater emphasis on protecting the community at the expense of restricting the freedom of the individual. Empirical evidence is cited in the high crime rates, drug abuse, divorce and homelessness in the West which are seen as manifestations of a failed society. It is argued that this is what Asian societies have tried to avoid by adopting for example in Singapore very harsh laws against drug traffickers. To avoid social deterioration, the rights of the community must over ride those of the individual. Another factor is the relationship between the ruler and ruled in SE Asia. Following a Confucian notion of the state, while the populace may often grumble about the opulent lifestyle of the political elite, it is these very same rulers who are voted back into power time and again. Political elites are not treated with the suspicion as they are in the West but as the harbingers of prosperity. Moreover, political rights are often seen as gifts from a benevolent leadership rather than a fundamental ‘human right’. The argument gets more heated in the sphere of economic development. Here it is argued that development is a collective activity and is primarily supplied by state agencies and other groups in society. Second, it is an economic and social process perhaps requiring in the short run, the infraction of civil and political rights. In the classic trade off between needs and luxuries, human rights are seen as being part of the latter category. Also tied to this question is whether short term repression of political freedom to attain economic and social gains could have long term benefits.
A useful way of looking at this is to also argue that perhaps human rights are not incompatible with development and could go hand in hand. This would then tie in with the issues regarding democracy and development in Africa. Clearly, in Africa, democracy has not always brought about development and has not always meant that human rights abuses have stopped. So the question then arises is whether there is a direct sort of linkage between the three, or whether this is an artifical Western construct that doesn’t apply in reality. A converse argument to the ‘Asian values’ argument is that it is not Western human rights that are individualistic. That these south east Asian countries, with their rapid industrialization have moved towards a more consumerist individualistic societies, and it is this that poses a challenge to traditional community values and lifestyles, rather than Western notions of human rights. So perhaps this growing individualism is not a consequence of human rights but of industrialization, increasing literacy rates, a more self centred lifestyle and a fundamental change in societal values.
With regard to these questions it must be also pointed out that ‘tradition’ and local custom can often be useful guises for perpetrating patriarchal and discriminatory practices. It would thus be wise to take comments such as those of Mahathir Mohammad with more than a pinch of salt, but there is no denying, that human rights as we understand it is extremely ‘Western-centric’ and emphasises global values at the cost of diversity. While it is important to preserve this diversity, this however should not be at the cost of basic human values. This is particularly important in the context of womens’ rights. An example of the mandated discretion for states in implementing common standards can be found in the Convention on the Rights of the Child. The Convention provides that the definition of childhood and the age of majority is a matter for national decision makers rather than international prescription. While a provision like this would seem to be upholding the concepts of diversity, it could be misused to discriminate against the girl child and then justify such actions on the grounds that it was a matter of national, religious or cultural practice.
A more recent debate in the sphere of human rights has been between ‘Islamic values’ and human rights. At the 1993 Vienna Conference many Islamic and particularly Middle Eastern states joined Asian nations in criticizing the UN and Western policy for its double standards, its violation of sovereignty, its neglect of economic rights and the imposition of ‘Western values’. It must be pointed out that many of the practices that these nations are accused of have been shared with other countries, but more specific allegations refer to certain aspects of the ideologies and laws of these countries that are at least formally phrased in terms of Muslim law and practice. Four of these issues are the rights of women, the rights of non believers, the rights of ppl deemed to be apostates and the question of punishments. This has taken a very real form with the recent laws against apostasy in Pakistan or the persecution thru judicial and extra judicial means of writers who are deemed to have offended Islam.
With regard to this particular debate, a number of points must be noted. First, that it is highly problematic to view this as a ‘clash of civilizations’ between a Western Judaeo-Christian one and the Muslim world. This argument detracts from the fact that much of this debate is in fact a recent one and has hardly any historical roots. There are certain broad political overtones to this debate, with many Muslim countries pointing out that there have been double standards applied especially with regard to the question of ‘self determination’ for the people of Palestine, Kashmir and Bosnia. Moreover, it must be remembered that there is no single ‘Middle Eastern’ or Islamic body of thought. Attempts to identify an ‘Islamic’ position are as misguided as those seeking to identify an ‘Asian’ or an “African” one. There are over 50 Muslim states in the world, with a variety of legal and political systems, and there is no single body, political or religious that speaks for the Muslim world as a whole. It must also be remembered that often ‘tradition’ is used as a convenient guise for a more sinister agenda, suppression of weaker sections especially women which is not sanctioned by a religious text such as the traditions of tribal honour in Pakistan and Afghanistan and the practice of female circumcision on parts of Africa and Arabia have nothing to do with Islamic doctrines and the term ‘Islamic’ is used to denote that they are a part of the traditional male dominated lifestyle. Equally, the policy of a number of Muslim countries, barring women from being judges does not have a Koranic basis. So we have not an established perennial tradition, legal or otherwise, but a set of discourses and interpretations, created by contemporary forces and contemporary needs. Moreover, projects to ‘Islamize’ law such as in Pakistan and Sudan must be seen as calculated and instrumental initiatives by regimes to consolidate their own power, both by silencing critics and social groups targetted by these laws, and by mobilizing support from sections of the population who may be sympathetic to these changes. The conclusion one thus reaches is that this debate is not about ‘cultural relativism’ but about human rights being practised under certain basic conditions and whether Islam allows these conditions to flourish and if not, whether such reforms could be brought about.
Finally, we come to the actual practice of human rights rather than just theoretical disputes about its universal applicability. Here, we find that even countries that publicly affirm their commitment to human rights may not always uphold them, that realist conceptions of self interests are often an integral part of the human rights regime. The record of the US on human rights has often been a matter of debate. It did not always interest itself in individual freedoms in Central America during the Cold War and in places like Nicaragua, Guatemala, and El Salvador was responsible for political killings and the coming to power of brutal dictators. Again, after the signing of the Dayton peace accord, the decision not to prosecute some well known war criminals, was based on the assessment that this would be a divisive move and not pursuing such a human rights agenda would be beneficial to the Balkans.
Moreover, the mere presence of various legal conventions has little value. If one is fortunate to live in a country where these rights are upheld by domestic courts, then one can take recourse to it. However, a European dissatisfied with his or treatment at home may be able to continue a legal dispute over a particular practice beyond his or her national courts to the European Commission on Human Rights and the European Court of Human Rights. In non-European countries governed by the rule of law, no such direct remedy is available, but the existence of international law can have some influence on the margins. However, there are always exceptions e.g. the international consensus on the death penalty has not deterred many countries including the US from using it.
Moreover, many ‘second generation rights’ such as the ‘right of everyone to an adequate standard of living for himself and his family, including adequate food, clothing and housing, and to the continuous improvement of living conditions is far more difficult to try and achieve. First, it is arguable whether these social and economic goals could ever be achieved. In these cases, the rights become normative standards that have been set down but cannot be realistically achieved. Next some states which put these rights at the top of their agenda will then try to curtail political rights because of it. Thus there is no obvious link between development and freedom (the previous African example could be cited here as well). Finally, these rights cannot be imposed by national governments alone but require an international regime for it. Various aid programmes that seek to solve such problems, as well as structural adjustment programmes are often criticised for intervening on sovereignty and the right that ‘All people have the right of self determination’.
It can be argued that the problem thus stems from the fact that human rights is always viewed merely in terms of being a ‘hard law’ problem, where the presence of treaties and courts and tribunals will be effective in dealing with abuses. Here, it can be suggested that NGOs such as Amnesty International, Human Rights Watch and others have a key role to play. In fact, many of the aforementioned treaties were framed with the active co-operation of these organizations. However, the argument that even profit based corporations can promote human rights must be greeted with some skepticism. It is a well known fact that few corporations have demonstrated a consistent record with regard to upholding human rights. Some well known incidents include the sweatshops run by Nike, Reeobok and GAP in the EPZs of South East Asia, the role of Shell in the hanging of Ken Saro Wiwa and Pfizer’s pressure on the USTR to not sign the Doha Declaration which would then allow countries to import generic AIDS drugs.
There are thus two broad issues that emerge. First, there is little consensus on how human rights should be understood. There is hardly a global consensus on human rights but even regional consensus must be viewed with some degree of skepticism as they could hide various forms of discrimination. Again, while there are a number of treaties that are designed to protect human rights, the mere signing of these treaties does not automatically mean that states will honour them. This then brings us to the second issue regarding the practice and implementation of human rights. Even here we see that there is little consensus. Recent moves to set up an International Criminal Court have been scuttled and the War Crimes Tribunal for the former Yugoslavia has been at the centre of much controversy regarding its proceedings. NGOs are a key component of the international human rights regime, but they alone can achieve little. Reaching a consensus is thus not a linear problem that can solved easily and there can perhaps be no universal solution. At the cost of sounding utopian, it can be suggested that what is required is a multi layered consensus. There must be a consensus on certain key rights (such as womens’ rights, or the rights of children in conflict etc) but other rights that are more region specific must be sorted out keeping in mind cultural sensitivities. However, without political will there is not much of scope for such a regime either materialising or turning out to be a success.