HUMAN RIGHTS - Peace Operations Training Institute

17 Pages·2012·1.31 MB·English

H R
uman igHts
COURSE AUTHOR
Jessica C. Lawrence, J.D.
UPEACE COURSE COORDINATOR
Dina Rodríguez, MEd.
SERIES EDITOR
Harvey J. Langholtz, Ph.D.
H R
uman igHts
COURSE AUTHOR
Jessica C. Lawrence, J.D.
UPEACE COURSE COORDINATOR
Dina Rodríguez, MEd.
SERIES EDITOR
Harvey J. Langholtz, Ph.D.
H R
uman igHts
FOREWORD. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .vii
METHOD.OF.STUDY. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . viii
LESSON.1:.HISTORY.AND.PHILOSOPHICAL.FOUNDATIONS.OF.
HUMAN.RIGHTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .9
1.1 Human Rights: Conceptual and Philosophical Foundations . . . . . . . . . . 11
1.2 Human Rights Before World War II . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
1.3 The Universal Declaration and the Age of Norm-Setting
and Codification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Annex A: Universal Declaration of Human Rights . . . . . . . . . . . . . . . . . . . . . . . . 25
LESSON.2:.DEVELOPING.LEGALLY.BINDING.HUMAN.RIGHTS.
TREATIES.I:.THE.ICCPR. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .33
2.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
© 2012 Peace Operations Training Institute. All rights reserved. 2.2 The International Covenant on Civil and Political Rights (ICCPR) . . . . . 37
2.3 Other Instruments dealing with Civil and Political Rights. . . . . . . . . . . . . 44
Peace Operations Training Institute
1309 Jamestown Road, Suite 202 . . . . . . . . . . . . . . 47
Annex A: International Covenant on Civil and Political Rights
Williamsburg, VA 23185 USA
www.peaceopstraining.org
LESSON.3:.DEVELOPING.LEGALLY.BINDING.HUMAN.RIGHTS.
First edition: February 2012 TREATIES.II:.THE.ICESCR. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .59
Cover: UN Photo #428063 by Olivier Chassot
3.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
The material contained herein does not necessarily reflect the views of the Peace Operations Training Institute, the Course 3.2 Economic, Social, and Cultural Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
Author(s), or any United Nations organs or affiliated organizations. Although every effort has been made to verify the
3.3 Other Instruments dealing with Economic, Social, and Cultural Rights . . 68
contents of this course, the Peace Operations Training Institute and the Course Author(s) disclaim any and all responsibility
for facts and opinions contained in the text, which have been assimilated largely from open media and other independent
3.4 Theoretical and Practical Issues . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69
sources. This course was written to be a pedagogical and teaching document, consistent with existing UN policy and
doctrine, but this course does not establish or promulgate doctrine. Only officially vetted and approved UN documents may Annex A: International Covenant on Economic, Social, and Cultural Rights . . . . 73
establish or promulgate UN policy or doctrine. Information with diametrically opposing views is sometimes provided on given
topics, in order to stimulate scholarly interest, and is in keeping with the norms of pure and free academic pursuit.
LESSON.4:.ENFORCEMENT.MECHANISMS.I:.THE.UN.SYSTEM. . . . .83 LESSON.9:.HUMAN.RIGHTS.OF.VULNERABLE.PERSONS.AND.
GROUPS.II:.CHILDREN’S.RIGHTS.AND.THE.RIGHTS.OF.PERSONS.
4.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 85
WITH.DISABILITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .193
4.2 Charter Bodies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 87
9.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 195
4.3 Treaty Bodies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 95
9.2 Children’s Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 195
LESSON.5:.ENFORCEMENT.MECHANISMS.II:.REGIONAL. 9.3 The Rights of Persons with Disabilities . . . . . . . . . . . . . . . . . . . . . . . . . 201
AND.OTHER.ACTORS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .103
Annex A: Convention on the Rights of Persons with Disabilities . . . . . . . . . . . . 208
5.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 105
LESSON.10:.HUMAN.RIGHTS.OF.VULNERABLE.PERSONS.AND.
5.2 The European System . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 106
GROUPS.III:.THE.RIGHTS.OF.MINORITIES,.INDIGENOUS.PEOPLES,.
5.3 The Inter-American System . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 111
AND.REFUGEES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .217
5.4 The African System . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 114
10.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 219
5.5 Other Regional Efforts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 118
10.2 The Rights of Ethnic, Religious, and Linguistic Minorities . . . . . . . . . . . 219
5.6 Other Actors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 120
10.3 Indigenous Peoples’ Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 224
10.4 The Protection of Refugees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 229
LESSON.6:.COLLECTIVE.RIGHTS.I:.THEORETICAL.PERSPECTIVES.
AND.THE.RIGHT.TO.SELF-DETERMINATION. . . . . . . . . . . . . . . . . . . .127
LESSON.11:.HUMAN.RIGHTS.DURING.ARMED.CONFLICT.I:..
6.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 199 JUS AD BELLUM.AND.THE.RESPONSIBILITY.TO.PROTECT. . . . . . . .239
6.2 Theoretical Perspectives . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 130
11.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 241
6.3 The Right to Self-Determination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 133
11.2 Jus ad Bellum . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 244
LESSON.7:.COLLECTIVE.RIGHTS.II:.THE.RIGHTS.TO.DEVELOPMENT,.
LESSON.12:.HUMAN.RIGHTS.DURING.ARMED.CONFLICT.II:.
ENVIRONMENT,.AND.PEACE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .143
INTERNATIONAL.HUMANITARIAN.LAW. . . . . . . . . . . . . . . . . . . . . . . .257
7.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 145
12.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 259
7.2 The Right to Development . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 145
12.2 International Humanitarian Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 259
7.3 The Right to a Healthy Environment . . . . . . . . . . . . . . . . . . . . . . . . . . . 151
12. 3 Law and War . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 269
7.4 The Right to Peace . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 157
LESSON.13:.HUMAN.RIGHTS.DURING.ARMED.CONFLICT.III:.
LESSON.8:.HUMAN.RIGHTS.OF.VULNERABLE.PERSONS.AND. INTERNATIONAL.CRIMINAL.LAW. . . . . . . . . . . . . . . . . . . . . . . . . . . . .275
GROUPS.I:.WOMEN’S.RIGHTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .165
13.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 277
8.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 167
13.2 International Criminal Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 277
8.2 Theoretical Perspectives . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 168
Annex A: Rome Statute of the International Criminal Court . . . . . . . . . . . . . . . 290
8.3 Women’s Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 171
Annex A: Convention on the Elimination of All Forms of Discrimination
Against Women . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 182
Foreword
LESSON.14:.CONTEMPORARY.DEBATES.ON.HUMAN.RIGHTS.I:..
NON-STATE.ACTORS.AND.TERRORISM. . . . . . . . . . . . . . . . . . . . . . . .305
14.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 307
14.2 Non-State Actors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 308
Over a mere 60 years, the international human rights system has become an important part of the
14.3 Human Rights and Terrorism . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 316 legal, moral, and political landscape. Human rights talk is everywhere: it is the language we use to
express our needs, our desires, and what we see as our entitlements. It provides a way for us to think
about tragic events, a lens through which to view and critique our society, and a set of aspirations
LESSON.15:.CONTEMPORARY.DEBATES.ON.HUMAN.RIGHTS.II:.
that make up the core of liberal ideology.
LGBT.RIGHTS,.TECHNOLOGY,.AND.EFFECTIVENESS. . . . . . . . . . . .327
15.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 329 This course is intended to be a short guide through the “babble of international instruments”
that make up the text of human rights theory and practice.1 We will cover the main international
15.2 LGBT Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 329
legal events, a little history, a little philosophy, and examine the ways in which human rights have
15.3 Human Rights and Technology . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 334 and have not been used for the protection of individuals and groups. We will focus primarily on
international materials, but will also look at some regional practice. Domestic systems of human
15.4 Effectiveness . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 343
rights protection, despite their importance, will not be covered here.
APPENDIX.A:.TABLE.OF.ACRONYMS. . . . . . . . . . . . . . . . . . . . . . . . . .349
Along the way, we will explore multiple perspectives on human rights (liberal, feminist,
post-colonial), and ask critical questions about how the international human rights movement has
APPENDIX.B:.LIST.OF.UN.PEACEKEEPING.OPERATIONS. . . . . . . .352 articulated and pursued its goals.
Throughout the course, students are encouraged to think of themselves “not as novices within an
END-OF-COURSE.EXAM.INSTRUCTIONS. . . . . . . . . . . . . . . . . . . . . . .355
established, even frozen framework of ideas and institutions, but rather as moulders and architects
of the movement’s ongoing development.”2
ABOUT.THE.AUTHOR. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .356
The international system for the protection of human rights continues to grow and change, and
there are important new developments every year. As such, it is important that students take the
initiative to keep up with their research, and seek to use the background and critical thinking skills
that they gain in this course to analyse events in the coming years.
Jessica C. Lawrence
February 2012
1 Patrick Thornberry, “An Unfinished Story of Minority Rights”, in Diversity in Action, A.M. Bíró and P. Kovács, eds.
(Budapest, Central European University Press, 2001), p. 47.
2 Henry J. Steiner, Philip Alston, and Ryan Goodman, International Human Rights in Context: Law, Politics, Morals
(Third Edition) (Oxford, Oxford University Press, 2007), preface.
To view a video introduction of this course by
the course author Jessica C. Lawrence, you can
either log in to your virtual classroom, go to www.
peaceopstraining.org/users/media_page/373/
introduction, or use your mobile device to scan the
QR code to the left.
HUMAN RIGHTS | vii
Method of Study
The following are suggestions for how to proceed with this course. Though the student may have alternate
approaches that are effective, the following hints have worked for many.
• Before you begin actual studies, first browse • When you finish a lesson, take the
through the overall course material. Notice the End-of-Lesson Quiz. For any error, go back to
LESSON 1
lesson outlines, which give you an idea of what the lesson section and re-read it. Before you
will be involved as you proceed. go on, be aware of the discrepancy in your
HISTORY AND PHILOSOPHICAL
understanding that led to the error.
• The material should be logical and
FOUNDATIONS OF HUMAN RIGHTS
straightforward. Instead of memorizing • After you complete all of the lessons, take time
individual details, strive to understand concepts to review the main points of each lesson. Then,
and overall perspectives in regard to the United while the material is fresh in your mind, take the
Nations system. End-of-Course Examination in one sitting.
• Set up guidelines regarding how you want to • Your exam will be scored, and if you acheive
schedule your time. a passing grade of 75 per cent or higher, you
will be awarded a Certificate of Completion. If
• Study the lesson content and the learning
you score below 75 per cent, you will be given
objectives. At the beginning of each lesson,
one opportunity to take a second version of the
orient yourself to the main points. If you are able
End-of-Course Examination.
to, read the material twice to ensure maximum
understanding and retention, and let time elapse • One note about spelling is in order. This course
between readings. was written in English as it is used in the United
Kingdom.
Key features of your course classroom:
• Access to all of your courses;
• A secure testing environment in which to
complete your training;
• Access to additional training resources, including
Multimedia course supplements;
• The ability to download your Certificate of
Completion for any completed course; and
• Student fora where you can communicate with
other students about any number of subjects.
Access your course classroom here:
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viii | PEACE OPERATIONS TRAINING INSTITUTE
1.1 Human Rights: Conceptual and • Who gains and who loses?
Philosophical Foundations
• Who makes the rules?
Introduction • Who and what is left out?
LESSON • Could things have happened differently? How?
Human rights are discussed everywhere. On any
• Could the story be told in another way?
given day, we read news stories about people
1
fighting for human rights around the world; we
Definition
argue about free speech and religious tolerance;
we make claims about what our governments
The term human rights describes rights or
should and should not be allowed to do. Human
entitlements that inherently belong to every human
rights is a language we use to express our needs,
being by virtue of their personhood. Human rights
our goals, and what we see as our entitlements. It
are the set of fundamental moral rights that are
provides a way for us to think about tragic events
considered necessary for a life of human dignity,
– a lens through which to view and critique our
and are premised on respect for the equality and
society – and is a set of aspirations that make up
autonomy of individuals. Human rights are:
the core of liberal ideology. Human rights have
become, in Richard Rorty’s words, “a fact of the •. Universal: they are held by every person,
LESSON OBJECTIVES
world.”1 everywhere, regardless of race, sex, nationality,
religion, language, class, or any other status;
But human rights is not just a way of thinking, it is
By the end of Lesson 1, the student should be able to meet the following •. Inalienable: they cannot be renounced, lost, or
1.1 Conceptual and also a set of legal and political doctrines. These
objectives: forfeited; and
Philosophical doctrines limit government power and shape
individual expectations. They privilege certain •. Indivisible,.interdependent,.and.interrelated:
Foundations
behaviors and prohibit others. Their structure they are intrinsically connected and must not be
• Define the term “human rights”;
1.2 Human Rights Before reflects the particular historical context out of viewed in isolation from one another.2
• Discuss the conceptual and philosophical foundations of human rights;
which they evolved, and their contours have
World War II
• Describe the historical background of the international human rights stretched and changed with the shifting landscape All human beings hold human rights equally. In
1.3 The Universal system; of global society. practice, however, all people may not enjoy the
protection of their rights at all times. For example,
Declaration and the
• Discuss the role played by state sovereignty in the history of human although all persons have a right to be free from
In this introductory lesson, we will define human
Age of Norm-Setting rights; and inhuman or degrading treatment, there are people
rights and discuss the evolution of the concept
and Codification all over the world who are suffering in overcrowded
• Understand which rights are contained in the Universal Declaration of from its modern origins to the adoption of the
and unsanitary prisons, subjected to humiliating
Annex A Human Rights. Universal Declaration of Human Rights (UDHR)
punishment, and tortured. These people have not
in 1948. We will explore how and why the human
The Universal lost their rights, but their rights have been violated.
rights system developed as it did, and encounter
Declaration of Human
some alternative perspectives on what it has meant
It is important to distinguish between moral rights
Rights for various groups of people.
and legal rights. Not all things that are desirable,
or “right” in the sense of “good”, are legal human
As you read through this lesson, and through the
rights. For example, it would be wonderful if
rest of the course, try to think critically about the
everyone were given the opportunity to learn to
“story” that it tells. Ask yourself:
play a musical instrument. This would be a moral
good, and we may use the language of rights to
1 Richard Rorty, “Human Rights, Rationality, 2 See: A/CONF.32/41, Proclamation of Teheran,
and Sentimentality”, in On Human Rights: The Final Act of the International Conference on
Oxford Amnesty Lectures 1993, Stephen Shute Human Rights, para. 13; and A/CONF.157/23,
To view a video introduction of this lesson by the
and Susan Hurley, eds. (New York, BasicBooks, Vienna Declaration and Programme of Action,
course author Jessica C. Lawrence, you can
either log in to your virtual classroom, go to www. 1993), p. 134. para. 5.
peaceopstraining.org/users/media_page/374/
lesson-1, or use your mobile device to scan the
QR code to the left.
HUMAN RIGHTS | 11
express this desire (a “right” to learn to play), but International human rights law is a set of rules Philosophical.Foundations This new liberal Enlightenment philosophy inspired
there is no legal human right that protects this about how governments must act, or refrain from a number of national movements that sought to
desirable good. acting, in order to protect and promote the rights While the human rights norms – rules, standards, enforce the rights of individuals against the power
and fundamental freedoms of individuals and and principles – that we speak of today are modern of the state: the Glorious Revolution in England,
Human rights structure relationships between groups. It is the formal legal codification of human creations, their philosophical origins can be the establishment of a constitutional government
people and the state, and, indirectly, between one rights at the international level. traced back all the way back to ancient Greece, in the United States, and the French Declaration
person and another. Human rights protect the and some say even further.7 An oft-used starting of the Rights of Man and of the Citizen are all
dignity of human beings against intrusions. They Under international human rights law, rights: point is Sophocles’s Antigone, which was written examples of Enlightenment-inspired movements.
privilege some actions, and prohibit others. In this in the fifth century B.C. In that play, Antigone’s Documents like the American Declaration of
way, they help to define the boundaries between • Belong to a right-holder (the person who has the brother has been killed while traitorously fighting Independence and Bill of Rights, the French
individual persons and the state, and also between right); against her kingdom. The king tells Antigone that Declaration of the Rights of Man and of the Citizen,
one individual and another. As Karl E. Klare wrote, her brother must remain unburied as punishment and the national constitutions of Mexico9 and Gran
• Have an object (what the right-holder has a right
“the human rights project is to erect barriers for his treachery, but she defies the commands of Colombia10 placed individual rights at the center of
to); and
between the individual and the State, so as to her king, and claims the right to give her brother a the political order, establishing that each person
protect human autonomy and self-determination • Impose an obligation on an addressee (the proper funeral: has inalienable natural rights and that the primary
from being violated or crushed by governmental party that is obliged to do or not do something purpose of a government is to secure those rights
Your edict, King, was strong,
power.”3 to provide the right-holder with the object of the for its people.
right).6 But all your strength is weakness itself against
Rights are attached conversely to duties. If a The immortal unrecorded laws of God. Today, our idea of human rights is still tied to the
person has the right to freedom from torture, For example, with respect to “the right to life”, They are not merely now: they were, and shall be, ideas of natural law and liberal individualism.
then the state has a corresponding duty not to the right-holders are all individuals, the object Operative forever, beyond man utterly.8 “Human rights” is premised on the notion that there
torture her. is “life”, and the addressee is the state, which is are certain limits to government power based on a
responsible for ensuring that the individual’s life is Antigone’s argument is significant because it set of higher principles that protect the individual.
Human rights set rules for behavior that “trump” or protected. appeals to a natural law – a law of the gods or Modern philosophers disagree, however, about
outrank the everyday rules established by political of nature – that must prevail over the orders of where these natural laws came from, how they
bodies like state and local governments.4 However, the king. This natural law addresses all people were discovered, and whether they are really “law”
Now that we know what human rights are, we
rights are not absolute. They must be balanced everywhere, and trumps all man-made rules or just a set of pragmatic principles by which we
will turn to a second question: Where did human
against one another. For example, suppose Johan and customs. have all agreed to abide. In other words, there is
rights come from? Who made the rules? How did
wants to walk across Angela’s lawn to get to a a lot of disagreement about why we have rights.
they become universal obligations that apply to
party. Angela, though, has just planted new grass, The idea of natural law persisted through the Different theorists locate the origins or moral
everyone, everywhere, all the time?
and does not want Johan to walk across it. In next several centuries, waxing and waning in foundations of human rights in:
this case, Johan’s right to freedom of movement importance with the changing political times.
•. God: the equal creation of human beings by
must be balanced against Angela’s right to own During the European Enlightenment of the
On the Complexity of God;
and protect her property. This balancing is highly seventeenth and eighteenth centuries, however,
contextual, and depends to a large extent on the Human Rights it assumed a central role. The ideas of rights •. Nature: the equal creation of human beings in
factors of each specific case (for example, if Johan and constitutionalism that infused the philosophies nature;
“There is no more ambiguous word in legal
were trying to get to the hospital instead of a party, of Locke, Montesquieu, and Rousseau drew
and juristic literature than the word right.” •. Human.dignity: the protection of individuals
we might be more sympathetic to his desire to walk heavily on this idea of a natural law that
from threats to their dignity;11
across Angela’s lawn). In addition, governments protected individual rights against the whims
Roscoe Pound
may be allowed to infringe on or restrict some from Volume IV of Jurisprudence of the sovereign. •. Human.agency: the protection of human beings
human rights for compelling reasons, or during as purposive moral agents;12
periods of emergency.5
3 Karl E. Klare, “Legal Theory and Democratic 7 For an excellent selection of early secular and 9 The Political Constitution of the Mexican United
Reconstruction: Reflections on 1989”, University human rights will be discussed in subsequent religious writings on liberty, tolerance, and codes States (1824).
of British Columbia Law Review, vol. 25, No. 97 lessons (e.g., Lessons 2, 3, and 12). of justice, see Micheline Ishay’s The Human Rights 10 Constitution of Cúcuta (1821).
(1991). 6 James W. Nickel and David A. Reidy, Reader (2007). 11 See: Jack Donnelly, Universal Human Rights in
4 Ronald Dworkin, “Rights as Trumps”, in “Philosophical Foundations of Human Rights”, in 8 Sophocles, “Antigone”, in The Oedipus Cycle: Theory and Practice (1989).
Theories of Rights, Jeremy Waldron, ed. (Oxford, International Human Rights Law, Daniel Moeckli et An English Version, Dudley Fitts and Robert 12 See: James Griffin, On Human Rights (2008),
Oxford University Press, 1984), p. 153. al., eds. (Oxford, Oxford University Press, 2009), Fitzgerald, trans. (New York, Harcourt, Brace & pp. 33–56; and Alan Gerwith, Human Rights
5 The ability to limit or derogate from certain pp. 39–63. World, 1949). (1983).
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•. Human.needs: the protection of those things from the European experience. They argue that How, though, did this concept of individual rights and the individual. For example, if the state of
that human beings need to survive; or human rights doctrine ignores alternative forms of move from the national to the international sphere? Arcadia imposes a law that prevents blonde-haired
knowledge, such as those developed by collectivist How and when did it become the responsibility people from voting, those affected can bring a case
•. Collective.prosperity: the need for all people
or hierarchical cultures, and question why some of the international community to ensure the against the government in Arcadia’s courts, and
to follow certain rules in order to prosper as a
rights, but not others, have been included in protection of individual human rights? get a judgment saying that they must be allowed to
group.13
international human rights law. Others see human vote. The police of Arcadia would then be obliged
rights as a means for capitalist states to paper over to enforce this ruling.
None of these foundations has ever been 1.2 Human Rights Before World
the dark side of liberal individualism and hide the
universally accepted across all cultures. This War II
reality of class struggle behind a false screen of Unfortunately, not every country has strong police
inexhaustive list of moral groundings ranges
egalitarianism. and judiciary systems. Laws may be unclear
widely across the philosophical spectrum, and Human.Rights,.the.State,.and.International.Law
or inadequate; police and judges may lack the
even people from similar philosophical traditions
Agreement on a single moral foundation, however, resources to act; officials may demand bribes
disagree strongly about which of these foundations The history of human rights is inextricably bound
is not necessarily indispensable for the practice before proceedings can begin; or the courts
should serve as the basis for human rights. up with the history of the modern state. On the one
and application of human rights. Indeed, many may not be independent from the legislative and
Jeremy Bentham, for example, famously rejected hand, the state is the organization best suited to,
scholars argue that having plural groundings executive branches of government. Even when the
the idea that rights were grounded in natural and primarily responsible for, protecting the human
actually makes the system more legitimate by police and judiciary are strong, state governments
law in favour of a pragmatic utilitarian vision: rights and fundamental freedoms of its citizens.
allowing it to appeal to a broader range of may ignore their responsibility to protect the human
“Natural rights is simple nonsense: natural and Indeed, protections for individual freedoms were
groups than insistence on a single foundation rights of individuals. When this happens, how can
imprescriptible rights, rhetorical nonsense – first introduced and codified in the context of the
would permit.15 human rights be enforced?
nonsense upon stilts.”14 state. On the other hand, states have often been
the perpetrators of human rights abuses, and are One way is through intervention by other states or
Disagreements about the moral foundations Foundations of Human Rights frequently the very organizations against which by the international community under the aegis of
of human rights are important because these individual rights must be protected. international law.
foundations can have an impact on both the scope
“People may not agree why we have rights,
of human rights and its claims to universality. but they can agree that they need them.” Human rights mediate this distinction between the Traditionally, international law was defined as the
state as protector and the state as abuser. They set law that governed relations between and among
These disagreements can lead to conflict about the Michael Ignatieff the boundary between legitimate and illegitimate sovereign states. Sovereignty, in this context,
scope or content of human rights. For example, if from Human Rights as Politics and Idolatry (2003) intrusions by the state on individual dignity and referred to the idea that states are autonomous
“human rights” means “things that human beings autonomy, drawing the line between acceptable political units that recognize no higher authority.
need to survive”, then protecting a “right to culture” and unacceptable exercises of state power. In Under this system, sovereign states had total
might seem superfluous. However, if “human other words, they are a way for individuals to control of what happened within their borders, and
rights” means “the things people need to prosper”, One thing is certain: whether their foundations enforce their own power against their government other states had an obligation not to intervene
then the “right to culture” becomes much more are single or plural, questionable or not, human and its laws and actions. in their domestic affairs (known as the principle
fundamental. rights are now indisputably a global political of nonintervention). The states imagined by this
phenomenon. States all over the world, from the In an open society with an established and system are sometimes compared to billiard balls:
The lack of a consensus with respect to the most democratic to the most oppressive, feel independent judiciary system, individuals can solid, opaque and impenetrable spheres that
moral foundations of human rights also calls compelled to express their support for human enforce their human rights against the state by interact with one another only as unified wholes.
the universality of human rights into question. rights, and many incorporate human rights bringing claims before national courts. The court This international order based on the principles of
Because the current system of international principles as integral parts of their national hears the case and makes a judgment on whether sovereignty and nonintervention is known as the
human rights law grew out of Western European ideologies. As scholar John Tasioulas notes: the state’s action was permissible or not. This Westphalian system, because many scholars trace
Enlightenment philosophy, some people argue “discourse of human rights in recent times judgment is then enforceable against the state its origins to the 1648 Peace of Westphalia, which
that human rights is a Eurocentric idea that [has been elevated] to the status of an ethical p. 75. See also: Jürgen Habermas, Religion and ended the Thirty Years’ War in Europe.
is biased against non-Western countries and lingua franca.”16 Rationality: Essays on Reason, God, and Modernity,
cultures. These “cultural relativists” believe that The “Billiard Ball” Model:
Eduardo Menieta, ed. (Cambridge, The MIT Press,
far from being universal, liberal individualism and
15 Michael Ignatieff, Human Rights as Politics and 2002), p. 153–4.: “Notwithstanding their European
human rights are philosophies drawn exclusively
Idolatry, Amy Gutmann, ed. (Princeton, Princeton origins, … in Asia, Africa, and South America,
13 See: John Rawls, The Law of Peoples (1999). University Press, 2003). [human rights now] constitute the only language State B
14 Jeremy Bentham, “Anarchical Fallacies”, 16 John Tasioulas, “The Moral Reality of Human in which the opponents and victims of murderous
in Nonsense Upon Stilts: Bentham, Burke and Rights,” in Freedom from Poverty As a Human regimes and civil wars can raise their voices against

Marx on the Rights of Man, Jeremy Waldron, ed. Right: Who Owes What to the Very Poor? Thomas violence, repression, and persecution, against
(London, Methuen Publishing, 1987), p. 53. Pogge, ed. (Oxford, Oxford University Press, 2007), injuries to their human dignity.” State A State C
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Under this system of state sovereignty, only states, One of the earliest human rights movements was •. Article.23 obliged states, amongst other things,
not individuals, could be the subjects of, or the the effort to abolish the slave trade, and later the to “endeavour to secure and maintain fair and
right-holders under, international law. Individuals holding of slaves, in Europe and the Americas. humane conditions of labour for men, women,
existed only as objects of international law: any Beginning with the 1815 Congress of Vienna, the and children, both in their own countries and
obligations owed to them were deemed to be major powers of Europe18 worked together to draft in all countries to which their commercial and
obligations to their state of nationality. A state treaties that called for an end to the international industrial relations extend.” It also called for the
could bring a claim against another state on behalf slave trade. Even with respect to slavery, however, establishment of an international organization
of its own mistreated citizens, but these claims the early treaties dealt only with the international to promote this objective, which led to the
were made under the legal theory that an injury trade of slaves – that is, the transportation of establishment of the International Labour Office
done to a citizen of a state was an injury done to slaves between states – and not with slavery per (now the International Labour Organization).
that state, not under any theory of direct protection se, or the treatment of slaves within states. It would
of individuals. How a state treated its own nationals take more than a hundred years before a major In addition to these two articles, the League of
or stateless persons was neither the business of international treaty abolished slavery altogether.19 Nations served as guarantor for the system of
international law nor of other states. The veil of so-called Minorities Treaties that were imposed
sovereignty was largely impermeable. Under this Modern international human rights law is on the states of Central and Eastern Europe.
system, human rights were a domestic political grounded in a number of historical legal doctrines This “minorities system” was established by a
matter, and the international community had no and institutions dating from the period before series of post-World War I treaties that included
right to intervene. As one scholar put it: World War II. In particular, early international provisions for the protection of ethnic and religious
laws governing the protection of minorities, minorities.22 Under these treaties, nations agreed
Until World War II, most legal scholars and state responsibility for injuries to aliens, and not to discriminate against protected minorities,
governments affirmed the general proposition, humanitarian intervention formed the backbone of and also to grant certain special protections
The medallion of the British Society for Abolition of the
albeit not in so many words, that international law pre-WWII international human rights practice. necessary for the preservation of minority religious,
Slave Trade. (Source: Josiah Wedgwood, 1795)
did not impede the natural right of each equal ethnic and linguistic traditions. The League of
sovereign to be monstrous to his or her subjects.17 Protection.of.Minorities.and.the.League.of. Nations helped to ensure compliance with these
Following World War I there was renewed interest
Nations provisions by developing a system for reviewing
in protecting the rights of minorities. In his
It may seem surprising that it was only very petitions alleging violations of minority rights.
“Fourteen Points” and elsewhere, then-United
recently that international law began to apply to According to this system, a Committee of Three of
Some of the earliest international human rights States President Woodrow Wilson stressed the
individuals as well as to states, and that human the League Council would hear the petition as well
treaties were designed to protect minority rights. ideals of freeing minorities and self-determination
rights became a subject of international concern as arguments by the states, and give its opinion on
For example, following the “liberation” of the of peoples as key components of liberal
and regulation. In fact, there were exceptions to the the complaint.
Balkans from Turkish domination in nineteenth nationalism. He went so far as to propose the
hard-and-fast rule of state sovereignty that gave
century, nations signed international agreements inclusion of generalized norms of minority
nations total control within their borders. These This early protection of group rights was a
to protect Christian minorities in the Ottoman protection in the 1920 Covenant of the League
exceptions, though, were limited by the nature of significant development.23 Though it faded
Empire.20 These treaties were selective in their of Nations, but the other major powers rejected
the system of sovereign states to a very narrow quickly and was ultimately incapable of halting
application and, some have argued, could be said this approach.21 In the end, the Covenant of the
range of issues that could be said to “directly the tragic events of World War II, it represented
to have imperialistic rather than altruistic aims. League of Nations did not include any general
concern” foreign states in the sense of infringing on a clear incursion on the state’s absolute internal
Nevertheless, they represented an internation- provisions on human rights. It did, however,
their political or economic interests. control over its citizens.24 These advances were
alization of certain human rights issues, allowing contain two articles establishing protections for
not made in a purely altruistic spirit, nor did they
states to intervene in other states’ affairs on behalf certain groups:
International human rights law represented a represent a complete shift from the earlier phase
of protected populations.
major change from this traditional pattern. In the of intervention only on the grounds of potential
•. Article.22 transformed colonies held by states
eighteenth and nineteenth centuries, concern damage to a state’s political or economic interest.
that lost World War I into “League Mandates”
for the rights of individuals and groups began to 18 The “Great Powers” of Europe at the time were In fact, minority rights were promoted by the
to be administered by the victorious powers
appear in international law, and states began to Austria, France, Russia, the United Kingdom, and victorious states following World War I largely as
pursuant to “the principle that the well-being and
acknowledge that certain human rights situations Prussia. a strategy to preserve international peace, and
development of [native] peoples form a sacred
were legitimate targets for international action. 19 Paul Gordon Lauren, The Evolution of
trust of civilisation … ”
International Human Rights: Visions Seen 22 Treaty of Versailles, 28 June 1919.
17 Tom J. Farer and Felice Gaer, “The UN and (Philadelphia, University of Pennsylvania Press, 23 For more on group rights, see Lessons 6 and 7
Human Rights: At the End of the Beginning”, in 2003), pp. 37–45. 21 Henry J. Steiner, Philip Alston, and Ryan on “collective” rights and Lesson 10 on the rights of
United Nations, Divided World (Second Edition), 20 These agreements included the Treaty of Paris Goodman, International Human Rights in Context: minorities.
Adam Roberts and Benedict Kingsbury, eds. (30 March 1856) and the Treaty of Berlin (13 July Law, Politics, Morals (Third Edition) (Oxford, 24 Henry J. Steiner, Philip Alston, and Ryan
(Oxford, Oxford University Press, 1993), p. 240. 1878). Oxford University Press, 2007), p. 98. Goodman, p. 106.
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