Human Rights: A Brief Introduction - Harvard University

Marks4and discrimination based on race or sex.The “International Bill of HumanRights” (consisting of the UniversalDeclaration of Human Rights [UDHR] of1948, and two legally-binding treatiesopened for signature in 1966, namely, theInternational Covenant on Civil and PoliticalRights and the International Covenant onEconomic, Social and Cultural Rights),along with the other human rights treaties ofthe United Nations (UN) and of regionalorganizations, constitute the primary sourcesand reference points for what properlybelongs in the category of human rights.These legally recognized human rights arediscussed below in Part IV.B.C. Human rights as social claimsBefore they are written into legal texts,human rights often emerge from claims ofpeople suffering injustice and thus are basedon moral sentiment, culturally determinedby contextualized moral and religious beliefsystems. Revolt against tyranny is an ancienttradition. A modern precursor of socialmobilization for human rights at the nationallevel was the response to the unjustcondemnation of Captain Dreyfus in 1894 asa spy for the Germans, which led Emile Zolato proclaim in his famous “J’Accuse !”, animpassioned call to action that led to thecreation of the Ligue française des droits del’homme in 1897, and numerous similarleagues, which became federated in 1922 intothe International Federation of Leagues forthe Rights of Man (now the InternationalFederation for Human Rights), whichspawned its counterpart in the US in 1942, theInternational League for the Rights of Man,now functioning in New York as theInternational League for Human Rights.Amnesty International (founded in 1961), theMoscow Human Rights Committee (foundedin 1970), and Helsinki Watch (founded in1978 and expanded into Human Rights WatchHuman Rightsin 1988) were among the more effective nongovernmental organizations (NGOs). LatinAmerica, Africa and Asia saw the creation ofan extraordinary array of human rights groupsin the 1980s and 1990s, which haveproliferated after the end of the Cold War.These NGOs emerged as socialmovements catalyzed by outrage at themistreatment of prisoners, the exploitation ofworkers, the exclusion of women, children,persons with disabilities, or as part ofstruggles against slavery, the caste ion. Such movements for socialchange often invoke human rights as the basisof their advocacy. If the prevailing theories ofmoral philosophy or the extant codes ofhuman rights do not address their concerns,their action is directed at changing the theoryand the legal formulations. NGOs not onlycontributed to the drafting of the UDHR butalso in bringing down Apartheid,4transforming the political and legalconfiguration of East-Central Europe5 andrestoring democracy in Latin America.6 Newnorms emerged as a result of such socialmobilization during the second half of thetwentiethcenturyregardingselfdetermination of peoples, prevention andpunishment of torture, protection ofvulnerable groups and, more recently, equaltreatment of sexual minorities and protectionof migrants.The appeal to human rights in thisadvocacy discourse is no less legitimate thanthe legal and philosophical modes ofdiscourse and is often the inspiration for thelatter. Quoting Sen again, “The invoking of4William Korey, NGOs and the UniversalDeclaration of Human Rights: A Curious Grapevine,pp. 7-8.5Id., pp. 95-116.6Id., pp. 229-247. Harvard University 2016

Marks5human rights tends to come mostly fromthose who are concerned with changing theworld rather than interpreting it Thecolossal appeal of the idea of human rights[has provided comfort to those suffering]intense oppression or great misery, withouthaving to wait for the theoretical air toclear.”7Former British diplomat and lawprofessor Philip Allott expressed thetransformative potential of human rightswhen he found that there was, “room foroptimism on two grounds. (1) The idea ofhuman rights having been thought, it cannotbe unthought. It will not be replaced, unlessby some idea which contains and surpassesit. (2) There are tenacious individuals andnon-statal societies whose activity on behalfof the idea of human rights is not part ofinternational relations but is part of a newprocess of international reality-forming.”8He adds, “The idea of human rights shouldintimidate governments or it is worthnothing. If the idea of human rightsreassures governments, it is worse thannothing.”9 In sum, the force of socialmovements drawing inspiration from humanrights not only enriches the concept ofhuman rights but also contributes to alteringinternational society.III: Historical milestonesThe historical context of human rightscan be seen from a wide range ofperspectives.Attheriskofoversimplification, I will mention fourapproaches to the history of human rights.The first approach traces the deeper7Sen, supra, note 1, p. 317.8Philip Allott, Eunomia: New Order for a NewWorld, Oxford University Press, 1990, p. 287.9Id.Human Rightsoriginstoancientreligiousandphilosophical concepts of compassion,charity, justice, individual worth, andrespect for all life found in y and Islam. Precursors of humanrights declarations are found in the ancientcodes of Hammurabi in Babylon (about1772 BCE), the Charter of Cyrus the Greatin Persia (about 535 BCE), edicts of Ashokain India (about 250 BCE), and rules andtraditions of pre-colonial Africa and preColumbian America.10Others trace modern human rights to theemergence of natural law theories in AncientGreece and Rome and Christian theology ofthe Middle Ages, culminating in therebellions in the 17th and 18th centuryEurope,thephilosophersoftheEnlightenment and the Declarations thatlaunched the French and Americanrevolutions, combined with the 19th centuryabolitionist, workers’ rights and women’ssuffrage movements.11A third trend is to trace human rights totheir enthronement in the United NationsCharter of 1945, in reaction to the Holocaustand drawing on President Roosevelt’s FourFreedoms and the impact of the UniversalDeclaration of Human Rights of 1948 onsubsequent national constitutions andforeign policy and international treaties and10Micheline Ishay, The History of Human Rights:From Ancient Times to the Globalization Era, With aNew Preface, New York: Norton and Co., 2008. Seealso Micheline Ishay (ed.), The Human RightsReader: Major Political Essays, Speeches, andDocuments from Ancient Times to the Present,Second Edition, New York: Routledge, 2007.Another interesting compilation may be found inJeanne Hersch (ed.), Birthright of Man, UNESCO,1969. The French edition was published in 1968. Asecond edition was published in 1985.11Lynn Hunt, Inventing Human Rights: A History,New York: W. W. Norton & Company, 2007. Harvard University 2016

Marks6Human Rightsdeclarations.12ambiguous “Man” throughout.14A fourth view is the very recentrevisionist history that considers humanrights as peripheral in the aftermath ofWorld War II and only significant as autopian ideal and movement beginning inthe 1970s as an alternative to the prevailingideological climate.13Much scholarship, especially in Europeand North America, dates modern humanrights theory and practice from theEnlightenment and the transformativeinfluence of the French and AmericanRevolutions of the 18th century andliberation of subjugated people from slaveryand colonial domination in the 19th and 20thcenturies. Lynn Hunt, in an essay on “TheRevolutionary Origins of Human Rights,”affirms that:Most debates about rights originated inthe eighteenth century, and nowherewere discussions of them moreexplicit, more divisive, or moreinfluential than in revolutionaryFrance in the 1790s. The answersgiven then to most fundamentalquestions about rights remainedrelevant throughout the nineteenth andtwentieth centuries. The framers ofthe UN declaration of 1948 closelyfollowed the model established by theFrench Declaration of the Rights ofMan and Citizen of 1789, whilesubstituting “human” for the more12Paul Gordon Lauren, The Evolution ofInternational Human Rights: Visions Seen,Philadelphia: University of Pennsylvania Press, 1998;Hersch Lauterpacht, International Law and HumanRights, with an introduction by Isidore Silver. NewYork: Garland, 1950 (reprint 1973).13Samuel Moyn, The Last Utopia: Human Rights inHistory, Cambridge MA: Belknap Press of HarvardUniversity Press, 2012; Aryeh Neier, TheInternational Human Rights Movement: A History,Princeton, NY,: Princeton University Press 2012.CommentingontheFrenchRevolution’s break with the past, JürgenHabermas wrote that this “revolutionaryconsciousness gave birth to a new mentality,which was shaped by a new timeconsciousness, a new concept of ”Although it took morethan a century after the French Revolutionfor this new mentality to include women andpeople subjected to slavery, the awarenessthat the “rights of man” should extend to allhuman beings was forcefully argued in thesame period by Mary Wollstonecreaft’s AVindication of the Rights of Woman 16 and bythe Society for the Abolition of the SlaveTrade, founded in 1783. The valuation ofevery individual through natural rights was abreak with the earlier determination of rightsand duties on the basis of hierarchy andstatus. Concepts of human progress andhuman rights advanced in the 19th century,when capitalism and the industrialrevolution transformed the global economyand generated immense wealth at theexpense of colonized peoples and oppressedworkers. Human rights advanced but mainlyfor propertied males in Western societies.Since the 19th century, the human rights offormer colonialized peoples, women,14Lynn Hunt, ed., The French Revolution and HumanRights. A Brief Documentary History, Boston, NewYork: Bedord Boods of St. Martin’s Press, 1996, p. 3.See also Stephen P. Marks, “From the ‘SingleConfused Page’ to the ‘Decalogue for Six BillionPersons’: The Roots of the Universal Declaration ofHuman Rights in the French Revolution,” HumanRights Quarterly, vol. 20, No. 3, August 1998, pp.459-514.15Jürgen Habermas, Between Facts and Norms. AContribution to a Discourse Theory of Law andDemocracy, The MIT Press, Cambridge, MA, 1996,p. 467.16Mary Wollstonecreaft, A Vindication of the Rights ofWoman, (1792) Harvard University 2016

Marks7excluded minorities, and workers hasadvanced but the gap remains between thetheory of human rights belonging to all,regardless of race, sex, language, religion,political or other opinion, national or socialorigin, caste, property, birth or other status,and the reality of inequality anddiscrimination.The Second World War was thedefining event for the internationalization ofhuman rights. In 1940, H.G. Wells wroteThe Rights of Man or What are We FightingFor?; Roosevelt announced the “fourfreedoms” (freedoms of speech and worshipand freedoms from want and fear) in his1941 State of the Union address; the UNCharter established in 1945 an obligation ofall members to respect and observe humanrights and created a permanent commissionto promote their realization; the trial of Nazidoctors defined principles of bioethics thatwere codified in the Nuremberg Code in1946; and the Nuremberg Trials, in 1945–46, of 24 of the most important capturedleaders of Nazi Germany, establishedindividual criminal responsibility for masshuman rights violations. Each of theseevents connected with World War II has hadmajor repercussions for human rights today.In the War’s immediate aftermath, bedrockhuman rights texts were adopted: theGenocide Convention and the UniversalDeclaration of Human Rights in 1948, theGeneva Conventions in 1949 on theprotection of victims of armed conflict,followed in 1966 by the InternationalCovenants on Human Rights and scores ofUN and regional human rights texts onissues such as torture, the rights of the child,minorities, discrimination against women,and disability rights, along with the creationofinvestigativeandaccountabilityprocedures at the intergovernmental level.Individual criminal responsibility for massviolations of human rights re-emerged—after the hiatus of the Cold War—in the adHuman Rightshoc tribunals on Rwanda and formerYugoslavia and finally in the InternationalCriminal Court.IV: Tensions and controversiesabout human rights todayTo understand how human rights arepart of the global agenda, we need to ask (A)why states even accept the idea of humanrights obligations when they are supposed tobe sovereign and therefore do what theywant within their territory. Then we willexplore (B) what is the current list of humanrights generally accepted, before asking (C)whether they correspond to the basic valuesof all societies or are imposed from theoutside for ideological reasons. Finally, wewill examine (D) how they are transformedfrom word to deed, from aspiration topractice.A. Why do sovereign states accept humanrights obligations?The principle of state sovereigntymeans that neither another state nor aninternational organization can intervene in astate’s action to adopt, interpret and enforceits laws within its jurisdiction. Does thisprinciple of non-intervention in domesticaffairs of states mean that they are free toviolate human rights? Along with theprinciple of non-intervention, upon joiningthe United Nations, states have pledgedthemselves “to take joint and separate actionin co-operation with the Organization for theachievement of the purposes set forth inArticle 55,”17 which include the promotionof “universal respect for, and observance of,human rights and fundamental freedoms forall without distinction as to race, sex,language, or religion.”181718Article 56 of the UN Charter.Article 55 of the UN Charter. Article 1(3) of the Harvard University 2016

Marks8State sovereignty is therefore balancedwith legitimate concern of the internationalcommunity about human rights in allcountries. How that balance is interpretedvaries according to theories of internationalrelations. For those of the realist school (atheory that focuses on governments asautonomous and sovereign actors ininternational affairs, pursuing their nationalinterests through the projection of economic,military and political power, withoutconstraints of any superior authority orglobal government), only weak countries areunder any constraint to allow internationalscrutiny of their human rights performance.For the liberal internationalist, globalinstitutions and values, like human rights,matter more, although the internationalsystem is still based on state sovereignty.Theories of functionalism attach importanceto gradual political federation, beginningwith economic and social cooperation,especially through regional organizations.As these networks of interdependence grow,sovereign authority shifts to internationalinstitutions. Under the constructivist theoryof international relations, ideas, such ashuman rights, define international structure,which in turn defines the interests andidentities of states. Thus, social norms likehuman rights, rather than national security,can shape and progressively change foreignpolicy. In sum, as Richard Falk and othersargue, absolute sovereignty has given way tothe conception of “responsible sovereignty,”according to which sovereignty isconditional upon the state’s demonstrableadherence to minimum human rightsstandards and capacity to protect itscitizens.19Charter also includes “international co-operation inpromoting and encouraging respect for human rights”among the purposes of the UN.Human RightsThese realist, liberal internationalist,functionalist, and constructivist theories runalong a continuum from state-centricapproaches at one end (where nationalinterests prevail over any appeal to universalhuman rights), to cosmopolitanism at theother end (where identity with and supportfor equal rights for all people should holdstate sovereignty in check). In practice,states have accepted obligations to respectand promote human rights under the UNCharter and various human rights treaties,whatever their motivations, and, as a result,a regime has emerged in which human rightshave progressively become part of theaccepted standards of state behavior,functioning effectively in some areas andless so in others.Inordertounderstandthisphenomenon, it is useful to examine thecurrent set of recognized human rightsstandards.B. How do we know which rights arerecognized as human rights?While it is legitimate to draw onphilosophical arguments or activist agendasto claim any global social issue as a humanright, it is also useful to identify whichrights are officially recognized as such. Themost reliable source of the core content ofinternational human rights is found in theInternational Bill of Human Rights, whichenumerates approximately fifty normativepropositions on which additional humanrights documents have built. Scores ofregional and UN treaties have expanded thescope of recognized human rights, includingin specialized areas such as protection ofvictims of armed conflict, workers, refugeesand displaced persons, and persons withRoutledge, 2001, p. 69.19Richard A. Falk, Human Rights Horizons: ThePursuit of Justice in a Globalizing World, New York: Harvard University 2016

Marks9disabilities.The International Bill of Human Rightsenumerates five group rights, twenty-fourcivil and political rights (CPR), and fourteeneconomic, social and cultural rights (ESCR).It also sets out seven principles that explainhow the rights should be applied andinterpreted.The group rights listed in theInternational Bill of Human Rights includetwo rights of peoples (self-determinationand permanent sovereignty over naturalresources) and three rights of ethnic,religious and linguistic minorities (namely,the rights to enjoy one’s own culture, topractice one’s own religion, and to use one’slanguage).The civil and political rights includefive relating to physical integrity (rights tolife; freedom from torture; freedom fromslavery; freedom from arbitrary arrest ordetention; and the right to humane treatmentunder detention). Five other rights relate tothe individual’s autonomy of thought andaction (namely, freedom of movement andresidence; prohibition of expulsion of aliens;freedom of thought, conscience andreligious belief; freedom of expression; andthe right to privacy). Another four rightsconcern the administration of justice (nonimprisonment for debt; fair trial—for which16 additional rights are enumerated—; theright to personhood under the law; and theright to equality before the law). Six othercivil & political rights relate to participationin civil society (freedom of assembly;freedom of association; the right to marryHuman Rightsand found a family; rights of children; theright to practice a religion; and—as anexception to free speech—the prohibition ofwar propaganda and hate speech constitutingincitement). The final sub-set of these rightsis the four relating to political participation(namely, the right to

the concept of human rights, this essay will examine the tensions between human rights and state sovereignty, the challenges to the universality of human rights, the enumeration of rights recognized by the international community, and the means available to translate the high aspirations of human rights into practice. II.