In the Preamble to the Charter, "the peoples of the United Nations" express their determination "to reaffirm 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." Article 1 of the Charter states that one of the purposes of the UN is to promote and encourage "respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language, or religion." In Article 56, "all Members pledge themselves to take joint and separate action in cooperation with the Organization for the achievement" of this purpose. The Charter vests responsibility for assisting in the realization of human rights and fundamental freedoms in three of the principal organs: the General Assembly, the Economic and Social Council, and the Trusteeship Council. The Charter also provides for the establishment of commissions for the promotion of human rights as subsidiary bodies of the Economic and Social Council. As early as 1946, two such commissions were created: the Commission on Human Rights and the Commission on the Status of Women.
THE INTERNATIONAL BILL OF RIGHTS
At the San Francisco Conference, a proposal to embody an international bill of rights in the Charter itself was put forward but was not pursued because it required more detailed consideration. The idea of establishing an international bill of rights, however, was regarded as inherent in the Charter. Even before the Charter was ratified and had entered into force and before the UN as an organization was established, steps were taken toward this goal. The Preparatory Commission of the UN and its Executive Committee, meeting in the fall of 1945, both recommended that the work of the Commission on Human Rights should be directed, in the first place, toward the formulation of an international bill of rights. The General Assembly agreed with these recommendations in January 1946. Accordingly, when the terms of reference of the Commission on Human Rights were laid down in February 1946, "an international bill of rights" was the first item on its work program.
When the Commission on Human Rights and its drafting committee started work on this ambitious project, it turned out that there was disagreement among the members about the form that the draft bill of rights should take. Some members thought the bill should be a "declaration" or "manifesto" that would be proclaimed by a resolution of the General Assembly. Others urged that it take the form of an international treaty, which, in addition to being approved by the General Assembly, would have to be opened for signature and for ratification or accession by governments and would be binding only on those governments that had ratified it or acceded to it. The relevant report of the draft ing committee records that it was agreed by those who favored the declaration form that the declaration should be accompanied or followed by one or more conventions. It was also agreed by those who favored the convention form that the General Assembly, in recommending a convention to member nations, might make a declaration wider in content or more general in expression. As a consequence, draft s of a "declaration" and of a "convention" were prepared, and studies were undertaken for the creation of international supervisory and enforcement machinery, called "measures of implementation."
Eventually, the decision emerged that the international bill of rights should not be produced by one single, comprehensive, and final act but should consist of two or more international instruments, namely, a declaration and a convention (or covenant), and measures of implementation. Later, it was decided that there should be not one but two covenants—one on civil and political rights and the other on economic, social, and cultural rights—and that the provisions on the measures of implementation should be embodied in the texts of the covenants. The latter decision was modified somewhat in 1966, when the provisions regulating one specific aspect of the implementation arrangements, the right of petition (communication), were included in a separate optional protocol.
The Universal Declaration of Human Rights
The Universal Declaration of Human Rights was prepared by the Commission on Human Rights in 1947 and 1948 and adopted and proclaimed by the General Assembly on 10 December 1948 by a vote of 48 in favor, none against, with 6 abstentions. Two representatives were absent. One of them stated later that, if he had been present, he would have voted in favor.
The Universal Declaration consists of a preamble and 30 articles. It proclaims—and in this regard it differs from the traditional catalog of the rights of man that are contained in various constitutions and fundamental laws of the 18th and 19th centuries and the first decades of the 20th century—not only civil and political rights but also rights that were eventually regulated in the International Covenant on Economic, Social and Cultural Rights.
The declaration proclaims, in Article 1, that all human beings are born free and equal in dignity and rights and, in Article 2, that everyone is entitled to all the rights and freedoms set forth in the declaration "without distinction of any kind, such as race, color, sex, language, religion, political or other opinion, national or social origin, property, birth or other status" and that "no distinction shall be made on the basis of the political, jurisdictional or international status of the country or territory to which a person belongs, whether it be independent, trust, non-self-governing or under any other limitation of sovereignty."
In Articles 3 to 21, the declaration deals with the traditional civil and political rights, including the right to life, liberty, and security of person; freedom from slavery and servitude; freedom from torture or cruel, inhuman, or degrading treatment or punishment; equality before the law and equal protection of the law; freedom from arbitrary arrest, detention, or exile; the right to be presumed innocent until proved guilty; the right to protection against arbitrary interference with one's privacy, family, home, or correspondence and to protection against attacks upon one's honor and reputation; freedom of movement and residence; the right to leave any country, including one's own; the right to seek and enjoy in other countries asylum from persecution; the right to a nationality and the right to change one's nationality; the right of men and women of full age to marry, without any limitation due to race, nationality, or religion; freedom of thought, conscience, and religion; the right to own property and not to be arbitrarily deprived of it; freedom of opinion and expression; the right to peaceful assembly and association; the right to take part in the government of one's country; and the right to equal access to public service.
Economic, social, and cultural rights (Articles 23 to 27) are introduced by Article 22, which states generally that "everyone, as a member of society, has the right to social security" and is entitled to the realization of "economic, social and cultural rights indispensable for his dignity and the free development of his personality." The article implies, however, that those economic, social, and cultural rights are not everywhere and immediately achievable. It states that the "realization" of these rights is to be brought about "through national effort and international cooperation and in accordance with the organization and resources of each state."
The declaration affirms everyone's right to work, to free choice of employment, to just and favorable conditions of work, and to protection against unemployment. It affirms the right of everyone to equal pay for equal work; to "just and favorable remuneration"; to form and join trade unions; to "a standard of living adequate for the health and well-being of himself and of his family"; and to "rest and leisure, including reasonable limitation of working hours and periodic holidays with pay." It also proclaims "the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond [one's] control." Everyone has the right to education, which "shall be free, at least in the elementary and fundamental stages" and compulsory on the elementary level. The declaration affirms everyone's right "freely to participate in the cultural life of the community, to enjoy the arts and to share in scientific advancement and its benefits."
Article 28 asserts that "everyone is entitled to a social and international order in which the rights and freedoms set forth in this Declaration can be fully realized." In the exercise of individual rights and freedoms, everyone shall be subject only to such limitations as are determined by law. Such limitations, according to Article 29, shall be "solely for the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality, public order, and the general welfare in a democratic society." Article 30 states that nothing in the declaration may be interpreted as implying for any state, group, or person "any right to engage in any activity or to perform any act aimed at the destruction of any of the rights and freedoms" set forth in the declaration.
The Universal Declaration of Human Rights was adopted, not in the form of an international convention that, when ratified, is legally binding on the states that are parties to it, but in the form of a resolution of the General Assembly, as "a common understanding" of the rights and freedoms that member states have pledged themselves to respect and observe and as "a common standard of achievement for all peoples and all nations." In the view of most of those who were instrumental in its preparation and adoption, the declaration was not meant to be a "binding" instrument. However, as soon as the declaration was adopted, it began to be used as a code of conduct and as a yardstick to measure the compliance by governments with the international standards of human rights.
In countless allegations of human rights violations that it has been called upon to examine, the UN has had recourse to the declaration, whether it was dealing with allegations of forced labor, with discrimination in non-self-governing and trust territories, with customs and practices inconsistent with the dignity of women, or with other violations of human rights. The declaration also has played an important role in the activities of specialized agencies, such as the ILO, UNESCO, and ITU, and in regional organizations, such as the OAS, the Council of Europe, and the OAU.
The declaration has thus acquired a validity beyond that originally contemplated in 1948. The international community, both the states that had been instrumental in its creation and those that later achieved independence, used the declaration for the purpose of fulfilling an assignment greater and more far-reaching than that originally carved out for it. Today, the declaration has acquired the status of customary international law and is valid for all states that have ratified it.
The International Covenants on Human Rights
The Commission on Human Rights, the Economic and Social Council, and the General Assembly devoted 19 years (1947–66) to the preparation of the International Covenants on Human Rights. One problem that created a considerable amount of controversy, particularly in the early years, was whether the treaty that would give legal effect to the rights and freedoms set forth in the Universal Declaration of Human Rights should regulate only those rights that traditionally have been guaranteed in national constitutions or catalogs of rights and are known as "civil and political rights" or whether the treaty should also set forth "economic, social and cultural rights."
As already indicated, it was eventually decided that there should be two covenants dealing with the two sets of provisions, respectively. The principal reason for having two separate instruments regulating the two groups of rights was the fundamentally different character of the rights concerned, which led some even to question whether "economic, social and cultural rights" are, technically, rights at all—in the sense of enforceable and justiciable rights. The different character of these rights made it necessary to provide for a difference in the type of international obligations to be undertaken by states that are parties to one or the other, or both, of the two covenants. Another reason for establishing two different covenants was thought to be the necessity to adjust the arrangements for international supervision—the "measures of implementation"—to the different character of the rights.
In the International Covenant on Civil and Political Rights, each state party undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in that covenant. In the International Covenant on Economic, Social and Cultural Rights, each state party undertakes only to take steps, individually and through international assistance and cooperation, to the maximum of its available resources, with a view to achieving progressively the full realization of the rights recognized in that covenant. Subject to certain exceptions and modifications, the International Covenant on Civil and Political Rights imposes upon states parties the obligation to maintain defined standards. The states parties to the International Covenant on Economic, Social and Cultural Rights assume the obligation to promote an objective—the achievement of human rights.
By and large, the two covenants between them cover the rights proclaimed in the Universal Declaration of Human Rights, as they have been described above, but there are considerable differences between the Universal Declaration and the covenants.
The provisions of the Universal Declaration proclaiming that everyone has a right to own property and that everyone has the right to seek and to enjoy in other countries asylum from persecution have no counterpart in the covenants. On the other hand, the covenants deal with a number of questions in regard to which the declaration contains no provision. An example is the provision of both covenants that all peoples have the right to self-determination "by virtue of which they freely determine their political status and freely pursue their economic, social, and cultural development."
The International Covenant on Civil and Political Rights, but not the declaration, protects aliens against expulsion, entitles everyone not to be compelled to testify against himself or herself or to confess guilt, provides for a right to compensation for miscarriage of justice, and also provides that no one shall be liable to be tried or punished again for an offense for which he or she has already been finally convicted or acquitted. The covenant prohibits any propaganda for war and any advocacy of national, racial, or religious hatred. It provides for the protection of ethnic, religious, and linguistic minorities. The declaration does not contain corresponding provisions.
The International Covenant on Economic, Social and Cultural Rights contains provisions on the right to work and to enjoy just and favorable conditions of work; the right to form and join trade unions and, subject to the law of the land, the right to strike; the right to social security, including social insurance and the protection of the family; the right to an adequate standard of living and freedom from hunger; the right to the enjoyment of the highest attainable standards of physical and mental health; the right to education; and the right to take part in cultural life.
The International Covenant on Economic, Social, and Cultural Rights and the International Covenant on Civil and Political Rights are legally binding human rights agreements. Both were adopted by the General Assembly in 1966 and entered into force ten years later, making many of the provisions of the Universal Declaration of Human Rights effectively binding. As of 19 April 2006, 153 states were party to the Covenant on Economic, Social, and Cultural Rights; and 156 states were party to the Covenant on Civil and Political Rights.
Measures of Implementation
The states parties to the Covenant on Economic, Social and Cultural Rights undertake to submit to the Economic and Social Council reports on the measures that they have adopted and the progress made in achieving the observance of the rights recognized in that covenant. Until 1986, the Economic and Social Council entrusted the task of examining such reports to a working group. Since then, this task has been carried out by the Committee on Economic, Social and Cultural Rights, an eight-member group of experts elected by the council to serve in their personal capacity. The committee submits to the council a summary of its consideration of the reports of states parties and makes suggestions and recommendations of a general nature.
Under the International Covenant on Civil and Political Rights, a Human Rights Committee was established to consider reports submitted by states parties on measures taken to implement the covenant's provisions and also to consider communications alleging violations under the Optional Protocol, which provides for consideration of communications from individuals who claim to be victims of violations of any rights set forth in the covenant. However, only claims against states parties to the protocol can be considered. The Optional Protocol entered into force 23 March 1976, and as of 19 April 2006, 105 states were party to it. The Second Optional Protocol to the International Covenant on Civil and Political Rights, which aims to abolish the death penalty, was adopted by the General Assembly 15 December 1989 and entered into force roughly two years later, when 10 states had ratified it. As of August 2002, 47 states were party to it.
Apart from the right of individual complaint under the specific procedure of the Optional Protocol, thousands of letters and reports alleging human rights violations are received each year by the UN. Communications containing complaints of violations of human rights are summarized and sent confidentially to the members of the Commission on Human Rights and its Subcommission on Prevention of Discrimination and Protection of Minorities; copies of the complaint also are sent to the member states named. The identity of the writers is not disclosed unless they have consented to disclosure. Any replies from the government are forwarded to the commission and subcommission.
The subcommission, if it finds that the communications appear to reveal "a consistent pattern of gross and reliably attested violations" of human rights, may refer the situation to the commission, which, in turn, can decide to carry out a thorough study of the situation or to name an ad hoc committee to investigate it. All these procedures are confidential and are dealt with in private meetings until a report, if any, is made by the Commission on Human Rights to the Economic and Social Council.
The Commission on Human Rights and its subcommission also consider in public session each year the question of violations of human rights and fundamental freedoms, including racial discrimination and apartheid, in various countries and territories. For example, since 1967, an ad hoc working group of experts of the commission has reported regularly on allegations of ill-treatment of opponents of apartheid and other racist policies, and on the treatment of political prisoners and detainees, in South Africa and Namibia.
Since 1968, the commission has been considering the question of the violation of human rights in the territories occupied by Israel as a result of the 1967 hostilities in the Middle East, including violations of the 1949 Geneva Convention concerning the protection of civilian persons in time of war.
In 1975, the commission established a five-member working group to study the human rights situation in Chile. The group visited Chile in 1978 and submitted a report to the General Assembly and the commission. After the completion of the group's mandate, the commission appointed a special rapporteur in 1979 to continue to study the situation. The commission has also requested that studies or reports be prepared by special rapporteurs or by the Secretary-General on the human rights situation in Afghanistan, Bolivia, El Salvador, Equatorial Guinea, Guatemala, Iran, and Poland.
In addition, the commission and its subcommission have studied specific phenomena of particularly serious violations of human rights. Thus, working groups have been established—on southern Africa, on enforced or involuntary disappearances, on slavery, and on indigenous populations—and special rapporteurs have been appointed to examine the question of summary or arbitrary executions and questions concerning torture, religious intolerance, and the use of mercenaries.
OTHER HUMAN RIGHTS CONVENTIONS
The UN and two of the specialized agencies, the ILO and UNESCO, have prepared and put into force a number of conventions in the human rights field that, while not as comprehensive as the International Bill of Rights, deal with important specific rights. (Conventions on racial discrimination and on the status of women are discussed in separate sections below.)
Prevention and Punishment of Genocide
In 1948, the General Assembly adopted the Convention on the Prevention and Punishment of the Crime of Genocide. The convention entered into force in 1951. As of 19 April 2006, it had been acceded to or ratified by 138 states. Under the convention, genocide means any of the following acts committed with intent to destroy in whole or in part a national, ethnic, racial, or religious group as such: (a) killing members of the group; (b) causing serious bodily or mental harm to members of the group; (c) deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; (d) imposing measures intended to prevent births within the group; and (e) forcibly transferring children of the group to another group. One result of the convention is that the states parties place it beyond doubt that genocide (and conspiracy, incitement, and attempt to commit it and complicity in it), even if perpetrated by a government in its own territory against its own citizens, is not a matter essentially within the domestic jurisdiction of states but one of international concern. States parties confirm that genocide, whether committed in time of peace or in time of war, is a crime under international law that they undertake to prevent and to punish. Any contracting party can call upon UN organs to intervene.
Freedom of Association
The Freedom of Association Convention of 1948 (in force since 1950) was the first major achievement of the joint efforts of the UN and the ILO in the field of international legislation on human rights problems. By this convention, states parties undertake to give effect to the right of workers and employers, without distinction whatsoever, to establish and join organizations of their own choosing without previous authorization. In exercising the rights provided for in the convention, workers and employers and their respective organizations, like other persons or organized groups, shall respect the law of the land. However, the law of the land shall not be such as to impair, nor shall it be so applied as to impair, the guarantees provided in the convention.
Under the Right to Organize and Collective Bargaining Convention of 1949 (in force since 1951), workers shall enjoy adequate protection against acts of antiunion discrimination in their employment, particularly in respect to acts calculated to make the employment of a worker subject to the condition that the worker shall not join a union or shall relinquish trade union membership.
Freedom of Information
Out of the very ambitious legislative program of the UN and the specialized agencies to guarantee through international instruments the right set forth in Article 19 of the Universal Declaration of Human Rights to seek, receive, and impart information and ideas through any medium and regardless of frontiers, only the Convention on the International Right of Correction has been adopted. At a UN Conference on Freedom of Information held in 1948, two additional conventions in this field were draft ed—a general Convention on Freedom of Information and a Convention on the International Transmission of News—but these have not yet been opened for signature and ratification, although the General Assembly has approved the latter convention.
The idea underlying the Convention on the International Right of Correction, which was opened for signature in 1953 and has been in force since 1962, is the attempt to transfer to the international level an institution that has been part of national law in a great number of countries. In the convention, the contracting states agree that in cases where a contracting state contends that a news dispatch capable of injuring its relations with other states or its national prestige or dignity, transmitted from one country to another by correspondents or information agencies and published or disseminated abroad, is false or distorted, it may submit its version of the facts (called a communiqué) to the contracting states within whose territories such dispatch has been published or disseminated. The receiving state has the obligation to release the communiqué to the correspondents and information agencies operating in its territory through the channels customarily used for the release of news concerning international affairs for publication.
Protection of Refugees and Stateless Persons
In the Convention Relating to the Status of Refugees of 1951 (in force since 1954, with a protocol of 1967) and the Convention Relating to the Status of Stateless Persons of 1954 (in force since 1969), far-reaching provisions for the protection of refugees and stateless persons were enacted. Two principles are the basis of both conventions: (1) there shall be as little discrimination as possible between nationals on the one hand and refugees or stateless persons on the other, and (2) there shall be no discrimination based on race, religion, or country of origin at all among refugees and stateless persons.
In 1961, a conference of plenipotentiaries adopted the Convention on the Reduction of Statelessness, which entered into force in 1975.
Abolition of Slavery, the Slave Trade, and Forced Labor
The fight against slavery has been an international concern since the beginning of the 19th century. In more recent times, under the auspices of the League of Nations, the Slavery Convention of 1926 was enacted, by which the contracting parties undertook to prevent and suppress the slave trade and to bring about "progressively and as soon as possible" the complete abolition of slavery in all its forms. Under UN auspices, the Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery was adopted in 1956 and has been in force since 1957. Under the convention, states parties undertake to bring about, also "progressively and as soon as possible," the complete abolition or abandonment not only of slavery but also of other objectionable practices, such as debt bondage and serfdom.
By the Convention Concerning the Abolition of Forced Labor, adopted by the International Labor Conference in 1957 and in force since 1959, states parties undertake to suppress and not to make use of any form of forced or compulsory labor as a means of political coercion or education or as a punishment for holding or expressing political views or views ideologically opposed to the established political, social, or economic system; as a punishment for having participated in strikes; or as a means of racial, social, national, or religious discrimination.
Equality in Employment and Occupation
By the Convention on Discrimination in Employment and Occupation, adopted by the International Labor Conference in 1958 (in force since 1960), each state party undertakes to declare and pursue a national policy designed to promote, by methods appropriate to national conditions and practices, equality of opportunity and treatment with respect to employment and occupation, with a view to eliminating discrimination. The fulfillment of the obligations undertaken by this convention is subject to the supervisory arrangements that apply under the constitution of the ILO.
Equality in Education
In 1960, the General Conference of UNESCO adopted the Convention Against Discrimination in Education (in force since 1962). Like the Discrimination (Employment and Occupation) Convention, the Convention Against Discrimination in Education prohibits any distinction, exclusion, limitation, or preference based on race, color, sex, language, religion, political or other opinion, national or social origin, economic condition, or birth that has the purpose or effect of impairing equality of treatment in education. The establishment or maintenance of separate educational systems or institutions for pupils of the two sexes is not prohibited, provided that these systems or institutions offer equivalent access to education and provide teaching staffs meeting the same standards of qualification. A special protocol adopted in 1962 institutes a Conciliation and Good Offices Commission to be responsible for seeking a settlement of any disputes that may arise between the states parties to the convention.
Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity
In 1968, the General Assembly adopted the Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity. The convention, in force since 1970, provides that no statutory limitation shall apply to war crimes and crimes against humanity, irrespective of the date of their commission. It also revises and extends the concepts of war crimes and crimes against humanity as they were defined in 1945 in the Charter of the International Military Tribunal and were applied and interpreted by the tribunal. The states parties to the 1968 convention undertake to adopt all necessary domestic measures with a view to making possible the extradition of persons who have committed such crimes.
WAR CRIMES RECORDS
Records of the International Military Tribunal (Nuremberg) and the International Military Tribunal for the Far East (Tokyo) are in the UN Archives in New York. Also deposited there are the records of various national military tribunals that were submitted to the UN War Crimes Commission established in London by a meeting of Allied and Dominion representatives in October 1943, two years before the UN was created. The following 17 countries were members of the commission: Australia, Belgium, Canada, China, Czechoslovakia, Denmark, France, Greece, India, Luxembourg, Netherlands, New Zealand, Norway, Poland, United Kingdom, United States, and Yugoslavia. The commission's primary task was to collect, investigate, and record evidence of war crimes and to report to the governments concerned those instances where the material available appeared to disclose a prima facie case. The commission took no part in the detention of persons listed or in the prosecution of the cases. It ended its work in March 1948 and deposited its records in the UN Archives with the stipulation that access to the records be limited to requests by governments for information on specific individuals. Following consultations among representatives of the former members of the commission in September/October 1987, its chairman recommended to the UN Secretary-General that the files be opened to governments for research into and investigation and prosecution of war crimes and to individuals, with the permission of the government of which they are nationals or permanent residents, for research into the history and work of the commission and into war crimes.
Prevention and Punishment of Crimes Against Internationally Protected Persons
In 1973, the General Assembly adopted the Convention on the Prevention and Punishment of Crimes Against Internationally Protected Persons, Including Diplomatic Agents. The convention, in force since 1977, aims at preventing the commission of acts of terrorism against heads of state, heads of government, ministers of foreign affairs, representatives of states, and officials of international organizations, as well as members of their families who accompany them or form part of their households. Each state party to the convention agrees to make murder, kidnapping, or other attacks upon the person or liberty of an internationally protected person or a violent attack upon his official premises, private accommodations, or means of transport a punishable crime. States agree to cooperate in the prevention of these crimes and in the prosecution and punishment of offenders.
Prevention of Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment
In 1975, the General Assembly proclaimed the Declaration on the Protection of All Persons from Being Subjected to Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. The declaration spells out in greater detail the provisions of the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights that no one may be subjected to torture or to cruel, inhuman, or degrading treatment or punishment.
The declaration was given binding legal form in 1984, when the General Assembly adopted the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. In the convention, which came into force on 26 June 1987, torture is defined as any act by which severe physical or mental pain is intentionally inflicted by, at the instigation of, or with the acquiescence of someone acting in an official capacity, whether to obtain information or a confession; to punish, intimidate, or coerce; or for reasons based on discrimination. It does not include pain or suffering arising only from, inherent in, or incidental to lawful sanctions. States parties undertake to prevent torture in their jurisdictions and ensure that it is legally punishable. No exceptional circumstances, such as war, the threat of war, internal political instability, or any other emergency, may be invoked to justify torture, nor can a torturer be excused by virtue of having acted under orders. The convention provides for extradition of persons believed to have committed acts of torture and for protection and compensation for torture victims. As of 19 April 2006, 141 states were party to this convention.
Convention on the Rights of the Child
In November 1989, the General Assembly adopted the Convention on the Rights of the Child, based on the draft proposed by the Commission on Human Rights in March of that year. The convention, which came into force in September 1990, had 192 states party to it as of 19 April 2006 (the two states not party to the convention as of that date were the United States of America and Somalia). The convention recognizes and protects a wide range of civil rights and liberties. It acknowledges the importance of a secure and healthy family or alternative environment; provides for education, leisure, and cultural activities; and states that children in emergencies are entitled to special protection and that children who are in conflict with the law must be guaranteed basic rights. The convention also stipulates that children should be protected from any form of exploitation.
In accordance with article 43 of the Convention, a Committee on the Rights of the Child was established in February 1991. The committee meets twice a year to consider periodic reports submitted by states which give details of their effective implementation of the provisions of the convention. The committee submits to the General Assembly, through the Economic and Social Council, a report on its activities every two years.
International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families
In December 1990, the General Assembly adopted a convention that takes into account the importance and extent of the migration phenomenon, which involves millions of people and affects a large number of states in the international community. In particular, the convention stipulates that all migrant workers and members of their families have the same right to equality with nationals of the state where they are engaged in remunerated activity. The convention entered into force on 1 July 2003; as of April 2006, 34 states were party to it.
REGIONAL HUMAN RIGHTS INSTRUMENTS
The work of the UN in the human rights field, for which the provisions of the Charter have been the point of departure, has also inspired important developments in the protection of human rights on the regional level by the Council of Europe, the Organization of American States, and the Organization of African Unity (now African Union).
Under the auspices of the Council of Europe, the European Convention on Human Rights was signed in 1950 and entered into force in 1953. The convention is based on an early draft of what is now the International Covenant on Civil and Political Rights. It was concluded by the governments of European countries "to take the first steps for the collective enforcement of certain of the rights stated in the Universal Declaration of Human Rights." It was subsequently supplemented by five additional protocols. As far as the substantive provisions are concerned, the European Convention and the International Covenant on Civil and Political Rights cover, more or less, the same ground, although there are a number of important differences between the two instruments.
The European Convention established two internal organs "to ensure the observance of the engagements undertaken by the High Contracting Parties in the present Convention"—that is, the European Commission on Human Rights and the European Court of Human Rights. Any party to the convention has the right to refer to the commission any alleged breach of the convention by another party. The commission may also receive petitions from any person, nongovernmental organization, or group of individuals claiming to be the victim of a violation, by one of the parties, of the rights set forth in the convention and in the relevant protocols. The exercise of this power by the commission is subject to the condition that the state against which the complaint is directed has recognized this competence of the commission.
If the commission does not succeed in securing a friendly settlement on the basis of respect for human rights as defined in the convention, it draws up a report on the facts and states its opinion as to whether the facts found disclose a breach by the state concerned of its obligations under the convention. The final decision is taken either by the Committee of Ministers of the Council of Europe, a political organ, or, if it has jurisdiction and the matter is referred to it, by the European Court of Human Rights.
The European Social Charter
The European Social Charter is the European counterpart to the International Covenant on Economic, Social and Cultural Rights. The provisions of the European Social Charter, however, are more specific and detailed. It has established a reporting procedure. The reports are examined by a committee of independent experts, which submits its conclusions to a governmental social subcommittee. The Consultative Assembly of the Council of Europe is consulted. In the final stage, the Committee of Ministers may make any recommendation that it considers necessary to any contracting party in the areas of economic, social, and cultural rights.
The American Convention on Human Rights
In 1948, several months before the adoption by the General Assembly of the Universal Declaration of Human Rights, the Ninth International Conference of American States, meeting in Bogotá, adopted the American Declaration of the Rights and Duties of Man. This declaration was followed in 1969 by the signing in San José, Costa Rica, of the American Convention on Human Rights. The convention, in force since 1978, is a very comprehensive instrument, similar to both the European Convention on Human Rights and the International Covenant on Civil and Political Rights. The organs of implementation of the Pact of San José are the Inter-American Commission on Human Rights (corresponding to the European Commission and to the Human Rights Committee under the International Covenant on Civil and Political Rights) and the Inter-American Court of Human Rights. While the right of petition of individuals is optional under the European Convention and the International Covenant on Civil and Political Rights, in the inter-American system, every state party accepts the right of petition automatically.
The African Charter on Human and Peoples' Rights
In 1981, the Assembly of Heads of State and Government of the Organization of African Unity (now African Union), meeting in Nairobi, Kenya, adopted the African Charter on Human and Peoples' Rights. The charter, which came into force on 21 October 1986, provides for an African Commission on Human and Peoples' Rights, composed of 11 members elected by the assembly, to promote and protect the rights set forth in the charter. The provisions of the charter are similar to those of the Universal Declaration of Human Rights but with special reference to African traditions of rights and freedoms, including the right to self-determination and the right of peoples to dispose of their wealth and natural resources.
THE FIGHT AGAINST RACIAL DISCRIMINATION
The idea of the equality of races emerged as the one that, more than any other, has dominated the thoughts and actions of the post–World War II period. The aim of racial equality has permeated the lawmaking and the standard-setting activities of the UN family of organizations and also the day-to-day work of many of its organs. The Charter, the Universal Declaration of Human Rights, and the two International Covenants on Human Rights prohibit discrimination on the grounds of race or color, as do the conventions against discrimination in employment and occupation and in education that have already been described.
The Declaration on the Elimination of All Forms of Racial Discrimination
In 1963, the General Assembly proclaimed the Declaration on the Elimination of All Forms of Racial Discrimination, which affirms that discrimination between human beings on the grounds of race, color, or ethnic origin is an offense to human dignity, a denial of Charter principles, a violation of the rights proclaimed in the Universal Declaration of Human Rights, and an obstacle to friendly and peaceful relations among peoples.
The International Convention on the Elimination of All Forms of Racial Discrimination
In 1965, the General Assembly adopted the International Convention on the Elimination of All Forms of Racial Discrimination which entered into force in January 1969. As of 19 April 2006, it had been acceded to or ratified by 170 states. Under the convention, states parties undertake not only to condemn racial discrimination and pursue a policy of eliminating it in all its forms but also to prohibit and bring to an end, by all appropriate means, including legislation as required by circumstances, racial discrimination by any individual, group, or organization. States parties undertake to declare it an offense punishable by law to disseminate ideas based on racial superiority or hatred or that are an incitement to racial discrimination. They also commit themselves to declare illegal and prohibit organizations that promote and incite racial discrimination and to recognize participation in such organizations as an offense punishable by law. The convention provides for the establishment of international supervisory machinery similar to that laid down in the International Covenant on Civil and Political Rights but contains tighter provisions.
Under the convention, an 18-member Committee on the Elimination of Racial Discrimination was established, which, like the Human Rights Committee provided for in the International Covenant on Civil and Political Rights, has the function of considering reports by states and allegations by a state party that another state party is not giving effect to the provisions of the convention. States parties to the convention also may recognize the competence of the Committee on the Elimination of Racial Discrimination to receive and consider petitions (communications) from individuals or groups of individuals. In the last instance, the International Court of Justice can be apprised of disputes with respect to the interpretation and application of the convention.
The International Convention on the Suppression and Punishment of the Crime of Apartheid
In 1973, the General Assembly adopted the International Convention on the Suppression and Punishment of the Crime of Apartheid which entered into force in July 1976. By 19 April 2006, it had been acceded to or ratified by 106 states. The convention provides that international responsibility for the crime of apartheid shall apply to individuals, members of organizations and institutions, and representatives of a state, whether residing in the state in which the acts are perpetrated or elsewhere. Persons charged can be tried by any state party to the convention. A three-member group of the Commission on Human Rights meets each year to review progress in implementing the convention.
The International Declaration and the International Convention Against Apartheid in Sports
The International Declaration Against Apartheid in Sports, adopted by the General Assembly in 1977, calls on states to take all appropriate action to cease sporting contacts with any country practicing apartheid and to exclude or expel any such country from international and regional sports bodies.
The International Convention Against Apartheid in Sports, adopted by the General Assembly in 1985, gave the provisions of the declaration a binding legal form. It entered into force in April 1988. As of 19 April 2006, it had been acceded to or ratified by 59 states.
Other Action to Combat Racism and Racial Discrimination
In 1972, the General Assembly decided to launch a Decade for Action to Combat Racism and Racial Discrimination, to begin on 10 December 1973, the 25th anniversary of the Universal Declaration of Human Rights, and in 1973, the General Assembly approved a comprehensive and ambitious program for the decade. Among its goals were the following: to promote human rights for all without distinction of any kind on grounds of race, color, descent, or national or ethnic origin, especially by eradicating racial prejudice, racism, and racial discrimination; to arrest any expansion of racist policies; to identify, isolate, and dispel the fallacious and mythical beliefs, policies, and practices that contribute to racism and racial discrimination; and to put an end to racist regimes.
While there was not necessarily complete unanimity in the General Assembly on every phrase and formulation of the relevant decisions on the decade adopted in 1972, 1973, and 1974, there was a general consensus in support of its goals. However, at the 1975 session of the General Assembly, a resolution was adopted by which the General Assembly determined that "Zionism is a form of racism and racial discrimination." The resolution was adopted by 72 votes to 35, with 32 abstentions. Among those strongly opposed were the nine members of the European Economic Community, as well as the United States, Canada, Australia, and New Zealand, and other states of Western Europe, Latin America, and Africa. Many of these states declared that the resolution radically changed the concept of the decade and would therefore change their attitude toward it.
The midpoint of the decade was marked by a world conference held in Geneva in August 1978. The conference adopted recommendations for comprehensive mandatory sanctions against the racist regimes of southern Africa, elimination of all discriminatory laws and practices, adoption of laws to punish dissemination of ideas based on racial superiority or hatred, and promotion of the rights of indigenous peoples and migrant workers. In 1979, the General Assembly adopted a program for the remaining four years of the decade, and in 1982, it decided that a second conference would be held in 1983.
The Second World Conference to Combat Racism and Racial Discrimination, held in Geneva in August 1983, was attended by representatives of 128 states, as well as of UN organs and specialized agencies and of intergovernmental and nongovernmental organizations. The conference adopted a declaration and a program of action in which it noted that "in spite of the efforts of the international community during the Decade, at the national, regional and international levels, racism, racial discrimination and apartheid continue unabated and have shown no sign of diminishing." The program of action contained practical suggestions on matters such as action to combat apartheid; education, teaching, and training; dissemination of information and the role of the mass media in combating racism and racial discrimination; measures for the promotion and protection of the human rights of minority groups, indigenous peoples, and migrant workers who are subject to racial discrimination; recourse procedures for victims of racial discrimination; implementation of the International Convention on the Elimination of All Forms of Racial Discrimination and other related international instruments; national legislation and institutions; seminars and studies; action by nongovernmental organizations; and international cooperation.
On the recommendation of the conference, the General Assembly proclaimed the Second Decade to Combat Racism and Racial Discrimination, on 22 November 1983, and called for renewed and intensified efforts and for implementation of the program of action approved by the conference.
On 20 December 1993, the General Assembly proclaimed the Third Decade to Combat Racism and Racial Discrimination (1994–2003). Also in 1993, the Commission on Human Rights appointed a special rapporteur on contemporary forms of racism, racial discrimination, xenophobia and related intolerance. The special rapporteur reports on institutionalized and indirect forms of racism and racial discrimination against national, racial, ethnic, linguistic and religious minorities and migrant workers. The rapporteur's mandate also emphasizes new manifestations of racism and xenophobia in developed countries. The Third Decade took a broad view of racism, noting that all societies in the world are afflicted by racial discrimination. The roots of racism were addressed, as were changes necessary to prevent eruption of conflicts caused by racial discrimination. Ethnic cleansing and genocide came under consideration, as well as the institutionalization of xenophobia.
In 1997, the General Assembly decided to convene the Third World Conference against Racism, Racial Discrimination, Xenophobia, and Related Intolerance, which took place from 31 August to 8 September 2001 in South Africa. The UN slogan for the World Conference was "United to Combat Racism: Equality, Dignity, Justice." Five themes were identified for the conference:(1) the sources, causes, forms and contemporary manifestations of racism, racial discrimination, xenophobia and related intolerance; (2) victims of racism, racial discrimination, xenophobia and related intolerance; (3) measures of prevention, education and protection aimed at the eradication of racism, racial discrimination, xenophobia and related intolerance at the national, regional, and international levels; (4) provision of effective remedies, recourses, redress and other measures, at the national, regional and international levels; and (5) strategies to achieve full and effective equality, including international co-operation and enhancement of the UN and other international mechanisms in combating racism, racial discrimination, xenophobia and related intolerance.
THE WORK OF THE UN RELATING TO THE STATUS OF WOMEN
The work of the UN relating to the status of women, aimed at achieving equal rights for men and women, is an important part of the UN's efforts to promote and to encourage respect for human rights and fundamental freedoms. The organ given the main responsibility in this field is the Commission on the Status of Women, a functional commission of the Economic and Social Council, established in 1946. Almost all the achievements of the UN in this matter are due to the initiative and work of the commission.
The Convention on the Political Rights of Women
The Convention on the Political Rights of Women, adopted in 1952 and in force since 1954, represented the culmination of the endeavors of generations of fighters for women's rights. It provides that women shall be entitled to vote in all elections, that they shall be eligible for election to all publicly elected bodies, and that they shall be entitled to hold public office and to exercise all public functions on equal terms with men and without any discrimination.
The Convention on the Nationality of Married Women
The Convention on the Nationality of Married Women, adopted in 1957 and in force since 1958, provides that neither the celebration nor the dissolution of marriage between a national and an alien, nor the change of nationality by the husband during marriage, shall automatically affect the nationality of the wife.
The Convention on Consent to Marriage, Minimum Age for Marriage, and Registration of Marriages
The Convention on Consent to Marriage, Minimum Age for Marriage, and Registration of Marriages, adopted in 1962 and in force since 1964, provides that no marriage shall be legally entered into without the full and free consent of both parties, such consent to be expressed by them in person after due publicity and in the presence of the authority competent to solemnize the marriage. States parties to the convention are committed to take legislative action to specify a minimum age for marriage. All marriages shall be registered in an official register by a competent authority.
In a recommendation on the same subjects as those of this convention, adopted in 1965, the General Assembly stated that the minimum age shall be not less than 15 years.
The Declaration on the Elimination of Discrimination Against Women
In 1967, the General Assembly solemnly proclaimed the Declaration on the Elimination of Discrimination Against Women. The declaration states that discrimination against women, denying or limiting as it does their equality of rights with men, is fundamentally unjust and constitutes an offense against human dignity. Work was started on a convention to put the principles of the declaration into binding legal form.
The Convention on the Elimination of All Forms of Discrimination Against Women
On 18 December 1979, the General Assembly adopted the Convention on the Elimination of All Forms of Discrimination Against Women. The convention came into force in September 1981; as of 19 April 2006, 182 states had ratified the convention.
Under the convention, states parties undertake to adopt all appropriate measures to abolish existing laws, regulations, customs, and practices that are discriminatory against women and to establish legal protection of the rights of women on an equal basis with men. The convention contains detailed provisions concerning equal rights for women in voting and holding public office and in education, employment, and health care. It provides for equality before the law and for the elimination of discrimination against women in all matters relating to marriage and family relations.
The convention established a Committee on the Elimination of Discrimination Against Women to periodically examine reports by states parties on measures that they have taken to implement the convention. The 23-member committee meets annually to consider the reports, which are due within one year of ratification or accession to the convention and every four years thereafter. The committee makes recommendations and observations to states parties on the basis of its consideration of the reports.
International Women's Year
In 1972, the General Assembly proclaimed the year 1975 as the International Women's Year. In 1974, the Economic and Social Council decided to convene an international conference to examine to what extent the organizations of the UN system had implemented the recommendations for the elimination of discrimination against women made by the Commission on the Status of Women since its establishment and to launch an international action program aimed at achieving the integration of women as full and equal partners with men in the total development effort, eliminating discrimination on grounds of sex, and achieving the widest possible involvement of women in strengthening international peace and eliminating racism and racial discrimination.
The World Conference of the International Women's Year took place in June/July 1975 in Mexico City. It was the most representative meeting on women's issues held to date, bringing together more than a thousand representatives, about 70% of them women, from more than 130 countries. The conference adopted the "Declaration of Mexico on the Equality of Women and Their Contribution to Development and Peace, 1975"; a world plan of action for implementation of the objectives of the International Women's Year; regional plans of action; and a great number of decisions on concrete problems. In the Declaration of Mexico, the conference affirmed its faith in the objectives of the International Women's Year—equality, development, and peace.
UN Decade for Women
Later in 1975, the General Assembly endorsed the proposals of the Mexico conference and proclaimed the period 1976–85 as the UN Decade for Women: Equality, Development, and Peace. The General Assembly called for the decade to be devoted to effective and sustained action to implement the world plan of action, and it decided to convene in 1980, at the midpoint of the decade, another world conference to review and evaluate the progress made.
The second world conference, held in Copenhagen in July 1980, adopted a program of action for the second half of the decade, 1980–85, to promote the three objectives of equality, development, and peace, with special emphasis on the subtheme—employment, health, and education. It called for specific action to ensure that the objectives of the world plan were met by the end of the decade.
The program of action was endorsed later in 1980 by the General Assembly, which decided to convene in 1985 a world conference to review and appraise the achievements of the decade.
1995 Fourth World Conference on Women
The Fourth World Conference on Women was held in Beijing, from 4–15 September 1995, subtitled "Action for Equality, Development and Peace." At preparatory meetings in 1994, the Secretary-General said a turning point had been reached in the cause of women worldwide. The conference represented a vital continuation of the work on development issues begun during the United Nations Conference on the Environment and Development (UNCED) in June 1992 and the World Conference on Human Rights held in Vienna in June 1993, and tied in with the International Conference on Population and Development, held in Cairo (5–13 September 1994) and the World Summit for Social Development, held in Copenhagen (11–12 March 1995).
Besides receiving reports from virtually all UN organizations on their programs relating to the status of women, the conference addressed gender issues in the context of a new vision of the 21st century as one in which gender equality would be achieved. It also focused on the problems of rural women and the need to facilitate access to resources so that they can improve their lives and, in turn, the lives of their families and communities.
2000 Beijing + 5 Conference
The twenty-third special session of the General Assembly on "Women 2000: Gender Equality, Development and Peace for the 21st century" took place at UN Headquarters in New York from 5–9 June 2000. Also referred to as "Beijing + 5," it was a special session to review progress made since the Fourth World Conference on Women (FWCW) held in Beijing in 1995. The Beijing + 5 session adopted a document and political declaration that would take further actions and initiatives to implement the Beijing Declaration and Platform for Action emerging from the FWCW. The special session was addressed by representatives of 148 member states, including two prime ministers, four vice-presidents, ministers and vice-ministers. Certain areas received focused attention. These included; education; social services and health, including sexual and reproductive health; the HIV/AIDS pandemic; violence against women and girls; the burden of poverty on women; vulnerability of migrant women including exploitation and trafficking; natural disaster and environmental management; the development of strong, effective and accessible national machineries for the advancement of women; and the formulation of strategies to enable women and men to reconcile and share equally work and family responsibilities.
The Nairobi Forward-Looking Strategies
The World Conference to Review and Appraise the Achievements of the UN Decade for Women was held in Nairobi, Kenya, in July 1985, attended by representatives of 157 states, as well as observers from specialized agencies and other organizations. The major achievement of the conference was the adoption, by consensus, of the Nairobi Forward-Looking Strategies for the Advancement of Women to the Year 2000. Measures recommended included technical cooperation, training and advisory services, institutional coordination, research and policy analysis, participation of women in activities at the international and regional levels, and dissemination of information on goals and objectives for the advancement of women.
The Declaration on the Participation of Women in Promoting International Peace and Cooperation
The Declaration on the Participation of Women in Promoting International Peace and Cooperation was adopted by the General Assembly in 1982. It states that women and men have an equal and vital interest in contributing to international peace and cooperation and that, to this end, women must be enabled to exercise their right to participate in the economic, social, cultural, civil, and political affairs of society on an equal footing with men.
OTHER DECLARATIONS IN THE HUMAN RIGHTS FIELD
The Declaration of the Rights of the Child
In 1959, the General Assembly adopted the Declaration of the Rights of the Child, which proclaims that every child, without distinction or discrimination on account of race, color, sex, language, religion, political or other opinion, national or social origin, property, birth, or other status, whether of the child or of the child's family, shall enjoy special protection and be given opportunities and facilities to develop physically, mentally, morally, spiritually, and socially in a healthy and normal manner and in conditions of freedom and dignity. Every child shall be entitled from birth to a name and nationality and shall enjoy the benefits of social security. The child who is physically, mentally, or socially handicapped shall be given the special treatment, education, and care required by his or her particular condition. Every child is entitled to receive education that shall be free and compulsory, at least in the elementary stages. Every child shall be protected against all forms of neglect, cruelty, and exploitation and from practices that may foster racial, religious, or any other form of discrimination.
The Declaration on the Granting of Independence to Colonial Countries and Peoples
The Declaration on the Granting of Independence to Colonial Countries and Peoples, adopted by the General Assembly in 1960, declares that the subjection of peoples to alien subjugation, domination, and exploitation constitutes a denial of fundamental human rights, is contrary to the Charter, and is an impediment to the promotion of world peace and cooperation. The declaration proclaims that all peoples have the right to self-determination.
In 1961, the General Assembly established a Special Committee on the Situation with Regard to the Implementation of the Declaration. (See also the chapter on Independence of Colonial Peoples.)
The Declaration on Territorial Asylum
The Declaration on Territorial Asylum, adopted by the General Assembly in 1967, supplements Article 14 of the Universal Declaration of Human Rights and provides that asylum granted by a state, in the exercise of its sovereignty, to persons entitled to invoke Article 14 of the Universal Declaration, including persons struggling against colonization, shall be respected by all other states. It rests with the state granting asylum to evaluate the grounds for asylum. Where a state finds difficulty in granting or continuing to grant asylum, states individually or jointly or through the UN shall consider, in the spirit of international solidarity, appropriate measures to lighten the burden on that state. No person entitled to invoke Article 14 of the Universal Declaration shall be subjected to measures such as retention at the frontier or, if he has already entered the territory in which he seeks asylum, expulsion or compulsory return to any state where he may be subjected to persecution.
The Declaration on Social Progress and Development
In 1969, the General Assembly solemnly proclaimed the Declaration on Social Progress and Development, which sets forth the principles, objectives, means, and methods to eliminate obstacles to social progress, particularly inequality, exploitation, war, colonialism, and racism. The declaration shows the close connections between social development policies and endeavors to promote respect for human rights. Article 1 provides that all peoples and all human beings, without distinction as to race, color, sex, language, religion, nationality, ethnic origin, family or social status, or political or other conviction, shall have the right to live in dignity and freedom and to enjoy the fruits of social progress and should, on their part, contribute to it.
The Declaration on Principles of International Law Concerning Friendly Relations and Cooperation Among States
On 24 October 1970, the 25th anniversary of the entry into force of the Charter, the General Assembly adopted the Declaration on Principles of International Law Concerning Friendly Relations and Cooperation Among States in Accordance with the Charter of the United Nations. One of the principles thus proclaimed is that states "shall cooperate in the promotion of universal respect for, and observance of, human rights, and fundamental freedoms for all, and in the elimination of all forms of racial discrimination and all forms of religious intolerance."
The Declaration on the Rights of Mentally Retarded Persons
The Declaration on the Rights of Mentally Retarded Persons, adopted in 1971, proclaims that the mentally retarded person has, to the maximum degree of feasibility, the same rights as other human beings: the right to proper medical care and physical therapy, education, training, rehabilitation, and guidance; the right to economic security and to perform productive work; and the right, when necessary, to a qualified guardian and to protection from exploitation, abuse, and degrading treatment. Whenever mentally retarded persons are unable to exercise all their rights in a meaningful way or if it should become necessary to restrict or deny them, the procedure used must contain proper safeguards against abuse.
The Declaration on the Protection of Women and Children in Emergency and Armed Conflicts
In 1974, the General Assembly proclaimed the Declaration on the Protection of Women and Children in Emergency and Armed Conflicts. The declaration states that attacks on civilians, "especially on women and children, who are the most vulnerable members of the population," shall be prohibited and condemned and that states involved in armed conflicts shall make all efforts "to spare women and children from the ravages of war."
The Declaration on the Rights of Disabled Persons
The Declaration on the Rights of Mentally Retarded Persons was confirmed and expanded by the Declaration on the Rights of Disabled Persons, adopted in 1975. The term "disabled person" means any person unable to ensure by himself or herself wholly or partly the necessities of a normal individual and/or social life, as a result of a deficiency in his or her physical or mental capacities. While the formulation of some of the rights set forth in the Declaration on the Rights of Disabled Persons occasionally differs from that contained in the earlier instrument, there are no differences as regards the principles and purposes, except that the later declaration applies also to persons who are physically, not mentally, handicapped.
The Declaration on the Use of Scientific and Technological Progress in the Interests of Peace
In 1975, the General Assembly adopted the Declaration on the Use of Scientific and Technological Progress in the Interests of Peace and for the Benefit of Mankind. The declaration provides that all states shall promote international cooperation to ensure that the results of scientific and technological developments are used in the interests of strengthening international peace and security, freedom, and independence and that they are also used for economic and social development and the realization of human rights and freedoms. The declaration calls on all states to help prevent the use of scientific and technological developments to limit or interfere with the enjoyment of the human rights of the individual.
The Declaration on the Elimination of All Forms of Religious Intolerance
The Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion and Belief, prepared by the Commission on Human Rights and adopted by the General Assembly in 1981, states that everyone shall have the right of freedom of thought, conscience, and religion and that no one shall be subject to discrimination on the grounds of religion or other beliefs.
The Declaration on the Human Rights of Individuals Who Are Not Nationals of the Country in Which They Live
In 1985, the General Assembly adopted the Declaration on the Human Rights of Individuals Who Are Not Nationals of the Country in Which They Live. The declaration defines the term "alien" as any individual who is not a national of the state in which he or she is present. It declares that all aliens shall enjoy a wide range of civil rights, as well as the right to safe and healthy working conditions, fair wages, and equal remuneration for work of equal value; the right to join trade unions and other associations; and the right to health protection, medical care, social security, education, rest, and leisure. No alien shall be deprived of his or her lawfully acquired assets, and aliens shall be free at any time to communicate with the consulate or diplomatic mission of the state of which they are nationals.
The Declaration on the Right to Development
The Declaration on the Right to Development was adopted by the General Assembly in 1986. In the declaration, the right to development is proclaimed as an inalienable human right by virtue of which every person and all peoples are entitled to participate in, contribute to, and enjoy economic, social, cultural, and political development, in which all human rights and fundamental freedoms can be fully realized. The right to development also implies the full realization of the right of peoples to self-determination, including their inalienable right to exercise full sovereignty over all their natural wealth and resources.
Declaration on the Rights of Persons belonging to National or Ethnic, Religious and Linguistic Minorities
In December 1992, the General Assembly reaffirmed that one of the basic aims of the United Nations was to promote and encourage respect for human rights and fundamental freedoms for all, without distinction as to race, sex, language, or religion. The Declaration on the Rights of Persons belonging to National or Ethnic, Religious and Linguistic Minorities invites states to protect the identity of minorities within their respective territories, in particular through appropriate legislation.
Declaration on the Protection of All Persons from Enforced Disappearance
In December 1992, the General Assembly also adopted the Declaration on the Protection of All Persons from Enforced Disappearance, which urges states to contribute by all means to the prevention and eradication of this gross offense to human dignity and flagrant violation of human rights. Acts of enforced disappearance should be considered offenses under criminal law punishable by appropriate penalties that take into account their extreme seriousness. The victims of acts of enforced disappearance, and their families, have the right to obtain redress and adequate compensation, including complete rehabilitation.
Declaration on the Right and Responsibility of Individuals, Groups and Organs of Society to Promote and Protect Universally Recognized Human Rights and Fundamental Freedoms
In December 1998, the General Assembly adopted the Declaration on the Right and Responsibility of Individuals, Groups and Organs of Society to Promote and Protect Universally Recognized Human Rights and Fundamental Freedoms, which acknowledged the role of individuals, groups, and associations in contributing to the elimination of violations of human rights. The declaration is designed to protect the rights of human rights defenders from summary executions, forced disappearances, torture, and arbitrary detentions, and to support the rights of those who have exercised legitimately and peacefully their freedom of opinion and expression.
T. Christopher Jespersen
Since its inception as an independent nation, the United States has claimed a special relationship with the issue of human rights. When Thomas Jefferson wrote the Declaration of Independence, he captured—as well as spoke to—the yearnings of the colonists along the eastern seaboard of North America to break free from tyrannical rule across the Atlantic Ocean. Theirs was a collective action, of a people striving to achieve the right to determine their own form of government, but Jefferson's rhetoric struck a balance between those collective aspirations and the rights of individuals. It is worth noting that his most famous words on the subject of individual rights—"We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the Pursuit of Happiness"—are preceded by the collective right of "one people to dissolve the political bands which have connected them with another." Since 1776, Jefferson's sentiments as both an expression of collective as well as individual human rights have continued to draw the attention of peoples around the globe. Although Jefferson was primarily concerned with focusing on the specific grievances and complaints the colonists had against the British king George III, his language gave expression to larger sentiments, coming partly from the Enlightenment philosophy that had recently swept the Western world. As a result, his words seemed transcendent in thought, though they were not necessarily so in their application.
Indeed, there was one major problem with what Jefferson wrote. The nature of his insistence on the collective right of peoples to determine their own form of government, not to mention the right to pursue happiness as individuals, when juxtaposed with his ownership of slaves and his subsequent refusal to disavow the practice by releasing them, draws attention to the danger of assessing the United States' stand on human rights by national rhetoric alone. Or as David D. Newsom expressed it more recently, "United States diplomacy in the human rights field suffers inevitably from the contradictions between promise and fulfillment." Ever since 1776, America's diplomatic policymakers have spoken to the issue of human rights in both the collective and individual manifestations, and no one more eloquently than Thomas Jefferson. But as Newsom warned, the actual implementation of policies designed to address those concerns have not always lived up to their high-sounding intentions.
A major surprise occurred 225 years after Jefferson wrote the Declaration of Independence, when the United States failed to retain its seat on the United Nations Human Rights Commission. Coming in fourth in the voting in May 2001, behind France, Austria, and Sweden, the United States missed out because only three spots were available. Representatives from forty-three countries had pledged to Secretary of State Colin Powell prior to the vote that they would cast their ballots for the United States, more than enough for the United States to keep its place. But when the results were tabulated, it became clear that fourteen of them had not done as promised, leaving the United States off the commission for the first time since its creation in 1947.
At first glance, the removal of the United States, while Sudan, Libya, and China kept their seats because of the geographical division of placings, seemed almost Orwellian. That the land of Thomas Jefferson, Woodrow Wilson, Eleanor Roosevelt, and James Earl Carter, to name only four of the nation's most ardent and eloquent proponents of human rights, was excluded from the panel, while on it sat clear violators of their own people's rights like Sudan, where slavery still exists and where religious persecution and civil war have raged for decades, Libya, where dictator Muammar Qaddafi has ruled for decades through brutality against his own people and whose support of terrorism has been documented on a number of occasions, and China, where the government massacred protestors at Tiananmen Square in 1989 and where the persecution of groups like Falun Gong continued a decade later despite international pressure, appeared to make a mockery of the whole notion of a commission dedicated to monitoring and improving human rights conditions around the world.
In the aftermath of the vote that removed the United States, columnists and political pundits in Washington called the act outrageous, and cartoonists had a field day with images of Libya, Sudan, and China setting the human rights agenda. The consensus seemed to be that the United States had been wronged and that the nation's absence from the commission ridiculed the entire notion of promoting human rights. But the long history of America's relationship with human rights displays a series of domestic and international contradictions between the policies pursued and the rhetoric espoused by administration after administration. Considered in total, these contradictions raise serious questions about the nation's commitment to the very idea of human rights. In short, Newsom is right: the gap between ideal and practice has been substantial, and upon closer scrutiny, the American record on human rights has been far more ambiguous, less consistent, and marked by more blemishes than jingoistic boosters of national honor would like to admit.
For the first century of its existence the United States, despite the language of the Declaration of Independence, did not advocate policies to effect human rights changes in other countries. Until 1865 the country faced a serious problem: no matter how eloquent Jefferson's pronunciation that all men are created equal, slavery remained a contentious domestic matter, indicating quite clearly that some men were not as equal as others. Slaves were considered property, not individuals, and the Supreme Court endorsed this idea with the Dred Scott decision in 1857. A resolution came only through a bloody, four-year civil war. Notwithstanding a northern victory and aggressive efforts by Radical Republicans in Congress to reform the South in the late 1860s and 1870s, the states of the South moved shortly after those years to impose a system of economic and political control over African Americans through sharecropping and Jim Crow segregation. The pattern of the southern states' actions received national ratification when the Supreme Court yet again provided its imprimatur for racist practices. This time the Court's Plessy v. Ferguson ruling in 1896 allowed for separate and decidedly unequal (despite pretenses) facilities for blacks and whites.
Meanwhile, Asian immigrants trying to enter the United States on the West Coast received a vastly different reception than the Europeans entering the nation through Ellis Island over three thousand miles to the east. Conditions on San Francisco Bay's Angel Island, where they were held pending review of their status, were deplorable, and more and more Chinese were barred from entering the United States after 1882. Finally, in the West, Indian tribes were forced off their lands to accommodate an onrush of white settlers to the region.
In short, human rights did not constitute a force in American diplomacy prior to 1913. The nation's struggle with slavery, the mistreatment of Asian immigrants, the efforts to relocate, if not eradicate, Indians, and the national proscription on women participating in the political process meant that the nation had far too many serious problems of its own to address. In addition, the nation had not reached the level of international prominence it would later achieve. The entrance of Woodrow Wilson into the White House, coupled with the outbreak of World War I, changed all that.
When the European nations went to war in August 1914, President Wilson saw the conflict as a sign that the old international system created by the Europeans had failed. Now was the time for new leadership. Wilson sought to create mechanisms for ensuring peace and stability, and one of his concerns was for the peoples of other nations. Wilson wanted to reconfigure the old diplomacy and replace it with an open system, one based on cooperation and communication. An ardent and eloquent advocate for liberalism, Wilson believed that democracy should prevail as the system of political governance around the world. In speaking to this issue time and again, he advocated the collective human rights of peoples to determine their own fates. More specifically, he pledged himself to the rights of eastern European peoples to choose their own form of government as the Austro-Hungarian Empire collapsed at the end of the war.
Wilson's call to liberalism came at a moment in world history when the United States rose from a regional power to a global one. American economic prowess provided the equipment and munitions France and Great Britain needed to fight the Central Powers from 1914 until the American entrance into the war in 1917. When they could no longer pay cash for the goods, the United States provided loans. In short, Woodrow Wilson possessed the economic and military clout to back up his calls for recognizing the collective rights of certain peoples.
The president's international commitment in this area, however, was not matched by any personal dedication to ensure that African Americans be allowed to participate in the domestic political process, nor did his push for self-determination extend to the victims of European colonialism in Africa, India, or East Asia. Like his predecessor from Virginia, Thomas Jefferson, Wilson was both eloquent and passionate on the theoretical rights of peoples, and he had problems reconciling his rhetoric with his practices. In addition to offering a hearty endorsement of D. W. Griffith's virulently racist film Birth of a Nation (1915), for example, Wilson pursued a domestic program shortly after coming into office that segregated the federal service, one of the few places where African Americans could enjoy some semblance of equal employment opportunities.
Regionally, Wilson acted with what had become customary American arrogance when he dispatched marines to Haiti in 1915, denying Haitians the right to determine their own political system. Indeed, Wilson intervened with military force more times in Central America and the Caribbean than any other president. He also spurned the inclusion of a racial equality clause at the Versailles Conference in 1919 when the matter was raised by the Japanese delegation. Better for the Japanese to be given territory in China against Chinese wishes than have any language referring to racial equality make its way into the final text.
Despite his actions toward nonwhites inside and outside the United States, Wilson managed to articulate the notion of peoples freely determining their own government, an idea that continues to draw the attention of repressed peoples around the world. Unfortunately, Wilson was thinking solely of those peoples in eastern Europe who had lived under the Austro-Hungarian Empire. In part, he was worried about how to contain the spread of communism coming out of the Soviet Union after the Bolshevik Revolution of 1917, and one way he hoped to achieve that goal was through the creation of a series of small states in the region, a sanitary cordon to thwart the movement of communism westward.
Wilson's rhetorical proclamations notwithstanding, the United States found it difficult to implement diplomatic policies that adhered to his commitments regarding democracy and collective rights. If anything, starting in the 1920s the United States began a consistent policy of supporting right-wing dictatorships around the world. As the historian David F. Schmitz has astutely noted in his study of U.S. support for these types of leaders, "promoting human rights and democracy demands a toleration of instability and change in regions considered crucial to American business or defense, often leaving no clear choice between conscience and self-interest and making strong, stable right-wing dictators attractive to policymakers." Thus, the ability of Italian dictator Benito Mussolini to bring stability and order to his nation during the 1920s meant more to American policymakers than his fascist inclinations. All three Republican presidents during the decade agreed that "order and stability had to be the primary considerations," stated Schmitz.
FRANKLIN D. ROOSEVELT AND THE ATLANTIC CHARTER
When President Franklin D. Roosevelt issued the Atlantic Charter in August 1941 in conjunction with British prime minister Winston Churchill, the two leaders followed in Wilson's footsteps by renouncing any intentions for territorial acquisition and by proclaiming the right of all peoples to determine their own form of government. This did not mean that the British prime minister had suddenly experienced a change of heart and was now prepared to recognize the independence of all His Majesty's colonies. Churchill understood the provisions differently from Roosevelt, and the president did not have a problem with that, although he did ultimately wish to see an end to European colonial holdings. The context to this announcement, of course, was World War II, which had begun in September 1939, and which was not going well from the Allied perspective at the time of the Atlantic Charter. Germany had defeated France, invaded the Balkans, and was aggressively pushing back Soviet troops along the Eastern front. Great Britain stood alone in the West, since the United States had yet to enter the war. Roosevelt and Churchill wanted to cast the struggle in moral terms, with the one side committed to freedom and collective rights in clear contrast to the despotism of the fascist nations.
Domestically, Roosevelt acquiesced to political pressure by issuing the executive order that allowed Japanese Americans along the West Coast to be rounded up and placed into camps in the interior. In all, 110,000 Japanese Americans were moved and the Supreme Court, which ruled the infringement on their civil rights to be perfectly legal in Hirabayashi (1943) and Korematsu (1944), once again acquiesced in the denial of individual liberties.
Although he did not take up the interventionist approach in Latin America with the same degree of alacrity as Wilson, neither did President Roosevelt press on the issue of human rights. He ignored the actions of the brutal dictator Rafael Trujillo in the Dominican Republic. He reached agreements with fascist leaders in Spain (General Francisco Franco), Vichy North Africa (Admiral Jean Darlan), and Italy (Pietro Badoglio from 1943) in an effort to win the war. Human rights were not expressly a part of the fight against fascism in Asia and Europe, but they were very much a part of the basic differentiation between the two sides.
Their different ideas about fundamental human rights became glaringly obvious at the end of the war as Allied troops made their way into the concentration camps set up by Germany to oversee the extermination of the entire Jewish population in Europe. Scenes of mass graves, crematoriums, and emaciated survivors testified to the Nazi determination to commit genocide.
THE UN DECLARATION OF HUMAN RIGHTS AND PRESIDENT HARRY TRUMAN
With the defeat of Germany, Italy, and Japan, the United States stood militarily triumphant and economically prosperous in 1945. Whereas the rest of the world's powers had suffered from the fighting, the United States possessed a combination of military, economic, and political power that, when combined with strong moral leadership, meant that its pronouncements on human rights could, if provided with sufficient backing, carry real weight.
In the place of Wilson's failed League of Nations came the United Nations, and prominent amongst its considerations was the issue of human rights. In 1948 the United Nations issued its Declaration of Human Rights, which listed, among others, the right to life, liberty, security of person, nationality, recognition before the law as a person, and freedom of movement, including leaving one's country of residence. People had the right to marry, own property, think freely in conscience and religious beliefs, have an opinion and express it freely, assemble peacefully, and take part in the functioning of government—thirty articles in all. It stated that people shall have the right to a free education, at least at the elementary level; people shall have the right to work; they shall have the right to "rest and leisure," and the right to "a standard of living adequate for the health and well-being" of the individual and family, "including food, clothing, housing and medical care and necessary social services." Playing a crucial role in the adoption of the Declaration of Human Rights was Eleanor Roosevelt.
President Harry S. Truman offered his strong support for the UN's human rights work. At the same time that he spoke out in favor of protecting human rights worldwide, the president experienced political disappointment domestically. He failed in his effort to secure passage of a federal antilynching law. In many parts of the South, white citizens took matters into their own hands when it came to offering justice to African Americans who had either committed crimes or were simply thought to have committed them. Many times a mob hunted down the alleged perpetrator and executed a swift form of punishment, which usually involved hanging without the benefit of the legal proceedings. That this practice still existed in postwar America, and that certain senators refused to allow the passage of federal legislation outlawing it, spoke all too chillingly to the failure of the United States to practice what it espoused in the field of human rights.
Truman pressed ahead just the same. At a ceremony for laying the United Nations building's cornerstone on 24 October 1949, he spoke of the link between individual human rights and security: "The member nations have learned from bitter experience that regard for human rights is indispensable to political, economic, and social progress. They have learned that disregard of human rights is the beginning of tyranny and, too often, the beginning of war." Truman indicated that the success of the UN would be "measured by the extent to which the rights of individual human beings [were] realized," and he also included "economic and social progress" in the equation for determining success in realizing those goals.
The next year at Gonzaga University, Truman brought his message of individual human rights into the domestic sphere, speaking of the need to prevent "discrimination in our country because of religion, color, or national origin," all three of which were basic tenets of the UN Declaration of Human Rights. Truman then indicated that "the same moral principles that underlie our national life govern our relations with all other nations and peoples in the world." Domestically, the president backed up his talk with action. He appointed a presidential Committee on Civil Rights to investigate the domestic situation; asked Congress in February 1948 to pass legislation to address the recommendations made by the committee; barred discrimination in federal employment that July; and moved to end discrimination in the armed forces, though the last of those would not be accomplished until the Korean War.
Much of what Truman did in the area of civil rights was politically motivated, to be sure, but Truman also worried about the ability of the Soviet Union to exploit America's racial problems internationally. His administration decided to support, through a legal brief, the effort to overturn the Supreme Court–sanctioned discrimination against African Americans as set forth in the Plessy v. Ferguson decision. The president and many of his staff recognized the problems created internationally by the country's hypocritical position: publicly advocating human rights for peoples worldwide, while systematically denying those very same rights at home to some of the nation's citizens because of their skin color.
BROWN V. BOARD OF EDUCATION AND THE EISENHOWER ADMINISTRATION
Unlike Truman, Dwight D. Eisenhower possessed, at most, a tepid commitment to human rights, and his noticeable lack of enthusiasm evidenced itself in a number of telling ways. First, Eisenhower supported the involvement of the Central Intelligence Agency in overthrowing or attempting to overthrow governments in Iran (1953), Guatemala (1954), and Cuba (1960, though it was President Kennedy who ultimately authorized the ill-fated Bay of Pigs mission in April 1961). Indeed, in the case of Guatemala, the CIA abetted the overthrow of the democratically elected leader, Jacobo Arbenz Guzman, ostensibly because his government was riddled with communists and constituted a threat to regional stability, although questions of land reform and their impact on U.S. business interests clearly played a role.
Eisenhower occasionally echoed Wilson's commitment to see peoples around the world determine their own form of government, but he did so primarily as part of a broader anticommunist effort. Secretary of State John Foster Dulles was particularly strident in his anticommunism, but his rhetorical calls for Eastern European freedom ran into problems in 1956 when Hungarians sought to control their own destiny and withdraw from the Warsaw Pact. The Soviet Union, under the leadership of Nikita Khrushchev, found such actions unacceptable. In November, Soviet troops arrived in Budapest to quash the revolution. Shortly after the brutal outcome to the episode was apparent, President Eisenhower used the occasion of Human Rights Day on 10 December 1956 to express the nation's "deepest sympathy" for "the courageous, liberty-loving people of Hungary." But that was all; nothing more was done.
The real problem for the administration came in the form of the civil rights movement domestically and the growing attention it received outside the United States. The Supreme Court reversed Plessy in its historic decision in Brown v. Board of Education of Topeka, Kansas in May 1954, a ruling followed in 1955 by the Montgomery bus boycott in Alabama, and then by the refusal of Arkansas governor Orville Faubus to allow the integration of Little Rock's Central High School in the fall of 1957. A clearly distressed Eisenhower was compelled to call in the National Guard to enforce the court's decision and to protect from mob violence the African American students who were scheduled to attend the high school.
The embarrassment over strident domestic opposition to integration and to the equal participation by African Americans in the nation's social and political systems hurt the nation's image abroad. At the 1958 World's Fair in Brussels, as Michael L. Krenn has insightfully noted, the Eisenhower administration ran into trouble with the American exhibit. One State Department memo observed that continuing racial discrimination, along the lines of what had happened in Little Rock the previous year, "clearly result[ed] to some extent in the weakening of our moral position as the champion of freedom and democracy." Wanting to assert the nation's moral superiority vis-à-vis the Soviet Union, but having to concede that there were continuing domestic problems over integration, the State Department sent an exhibit to Brussels, "Unfinished Business," that acknowledged some of the problems still faced by African Americans. Although popular with audiences that visited the American pavilion, "Unfinished Business" closed for "renovations," which was a euphemism for deleting the sections that dealt with segregation and thus raised the ire of southern politicians back home. Senator Herman Talmadge, for example, a Democrat from Georgia, declared that segregation "was an issue for the individual states of America and 'cannot by any stretch of the imagination be said to be one of legitimate concern to the citizens of other countries.'" Of course, that has traditionally been the argument of all governments accused of violating their citizens' human rights, whether it be the United States in the 1950s; the apartheid government in South Africa in the 1960s, 1970s, and 1980s; China after Tiananmen Square; or the Taliban government in Afghanistan early in the twenty-first century.
THE KENNEDY, JOHNSON, NIXON, AND FORD PRESIDENCIES
David P. Forsythe has argued that not much with respect to human rights happened during the 1960s, largely because the Kennedy administration was cut short by assassination and the Johnson administration became preoccupied with Vietnam. Yet however brief his time in the White House, President John F. Kennedy recognized the problem created by opposition to civil rights at home for the nation's international standing. Speaking before the United Nations in 1963, nearly fifteen years after the UN Declaration of Human Rights, Kennedy remarked, "The United States of America is opposed to discrimination and persecution on grounds of race and religion anywhere in the world, including our own nation. We are working to right the wrongs." Indeed, Kennedy, who argued that the competition with the Soviet Union was moving from Europe to the countries of the Third World, where mostly darker-skinned peoples lived, understood the need to address prejudice at home in order to appeal effectively to those peoples abroad. For his part, Lyndon B. Johnson ushered through two of the most important pieces of civil rights legislation in American history: the Civil Rights Act of 1964 and the Voting Rights Act of 1965. Johnson brought the power of the federal government to bear so as to ensure that the states could not continue discriminating against African Americans. The United States was finally beginning to act in the domestic sphere in accordance with its proclamations internationally.
Human rights lost ground as a matter of importance in the nation's diplomacy under President Richard M. Nixon and his national security adviser (and, later, secretary of state), Henry Kissinger. The two emphasized geographical, political, and strategic considerations. Human rights, whether individual or collective, were of little concern to them. In his rush to embrace Communist China in a geostrategic partnership against the Soviet Union, for example, Kissinger basically cast aside the collective rights of the Taiwanese, who had been America's ally in the Pacific against communist aggression since 1949. Kissinger's disdain for human rights came through clearly at other times, too. From the administration's support for the military overthrow of the democratically elected socialist Salvador Allende in Chile in 1973 to the secret bombing of Cambodia from 1969 to 1973, the Nixon White House valued anticommunism, the exercise of power, and promoting stability over human rights.
Richard Nixon resigned in August 1974 and his successor, Gerald Ford, did not exhibit any greater concern for human rights. Later, Ford would claim credit for supporting human rights by virtue of his signing the Helsinki Accord, also known as the final text from the Conference on Security and Cooperation in Europe, which was signed by thirty-three nations in Helsinki, Finland, in 1975. At the time, however, the Ford administration thought of the agreement as more of a strategic pact than as one that brought a new human rights emphasis to U.S. diplomacy. It was the western European nations that insisted on the insertion of Breadbasket Three, which asserted that "the participating States will respect human rights and fundamental freedoms, including freedom of thought, conscience, religion or belief, for all without distinction as to race, sex, language or religion." Since the Soviet Union also signed the agreement, this language later became useful in criticizing Soviet practices in Eastern Europe.
A backlash arose from the lies about the Vietnam War told to Congress by Presidents Johnson and Nixon, and from Nixon's blatant usurpations of power, leading to the rise of what became known as the imperial presidency. In the 1970s representatives and senators took matters into their own hands and asserted themselves more aggressively into the nation's diplomatic processes, including the area of human rights. One of the most prominent in this respect was a Democratic representative from Minnesota, Donald Fraser. Beginning with hearings in 1973 before his subcommittee of International Relations Committee, Fraser repeatedly raised the issue of human rights and made it a matter of legitimate diplomatic discussion. Human rights would no longer be an afterthought.
More than simply discussing the issue, moreover, Congress decided to act. In 1974, it strengthened law relating to trade and human rights when it passed the Trade Assistance Act; section 504 specifically dealt with human rights, indicating that aid should be linked to human rights considerations. In 1978 that language was changed to make mandatory the link between assistance and human rights considerations. Also in 1974, Congress passed the Jackson-Vanik Amendment to the Trade Act. Named after Democratic Senator Henry Jackson from Washington and Democratic Representative Charles Vanik from Ohio, the amendment insisted that for other nations to receive most-favored-nation status for trade purposes, they had to be certified as allowing their citizens the right to emigrate. The amendment targeted the Soviet Union for its refusal to allow Jews to leave for Israel. In 1976 Congress created the position of coordinator of human rights in the Department of State. As a result, the State Department reports on human rights conditions in countries receiving U.S. aid, totaling eighty-two in 1977. Twenty-three years later, and no longer focusing solely on aid recipients, the State Department published reports on 195 countries through its Bureau of Democracy, Human Rights, and Labor. In short, congressional action during the 1970s brought human rights into the nation's diplomatic considerations to an unprecedented degree.
PRESIDENT JAMES EARL CARTER
In this human-rights-friendly environment, Jimmy Carter was elected president in 1976. Carter has justly received much attention for emphasizing human rights as part of his administration's diplomacy; he did not, however, invent the issue. Gaddis Smith has, along with other writers, shown that, in Smith's words, "Carter joined the crusade and made it his own." The principle impetus came from Congress, to the point that even such a strong supporter of human rights as Carter found himself arguing that Congress took human rights considerations too far. Still, Carter was more committed to promoting human rights than any other president into the early twenty-first century, in both words and action. As he wrote in his memoirs, "Our country has been strongest and most effective when morality and a commitment to freedom and democracy have been most clearly emphasized in our foreign policy."
Having grown up in the rural segregated South, Carter linked the issue of civil rights for African Americans with the promotion of human rights abroad and cited President Truman, of all the recent presidents, as "the strongest and most effective advocate of human rights on an international scale." He acknowledged problems with the nation's past conduct, admitting that "much of the time we failed to exhibit as an American characteristic the idealism of Jefferson or Wilson," but he rejected the accepted wisdom that the nation had to choose between realism and morality: "To me, the demonstration of American idealism was a practical and realistic approach to foreign affairs, and moral principles were the best foundation for the exertion of American power and influence." His secretary of state, Cyrus Vance, concurred fully in the need to promote human rights; even National Security Adviser Zbigniew Brzezinski, himself more in tune with the geopolitical and strategic mind-set of Henry Kissinger than were Carter or Vance, conceded in his memoirs that "a major emphasis on human rights as a component of U.S. foreign policy would advance America's global interests by demonstrating to the emerging nations of the Third World the reality of our democratic system, in sharp contrast to the political system and practices of our adversaries."
Carter understood the inconsistency in the nation's past talk about human rights when considered alongside its efforts to deny rights to some of its own citizens. In his memoirs, he acknowledged that "I know perhaps as well as anyone that our own ideals in the area of human rights have not always been attained in the United States, but the American people have an abiding commitment to the full realization of these ideals." The problem for Carter was that despite his efforts to ensure that the nation's commitment to human rights was total and unconditional, he like his predecessors (and successors) had to deal with the international situation as it was, not as he wanted it to be. Thus, while he criticized certain governments, including the Soviet Union and the military regime in Argentina, for violating their people's basic human rights, he laid himself open to charges of inconsistency, if not hypocrisy, by ignoring violations in strategically vital allies like Iran, the Philippines, and South Korea.
Still, Carter made human rights a public commitment for his administration, in contrast to many of his predecessors. Speaking before the United Nations on 17 March 1977, he told the delegates, "The basic thrust of human affairs points toward a more universal demand for fundamental human rights. The United States has a historical birthright to be associated with this process." Secretary of State Vance spoke on 30 April 1977 at the University of Georgia School of Law on the integrity of the person, the fulfillment of basic needs, and classical civil and political liberties that required protection. Vance raised certain questions that needed to be asked when investigating human rights in other nations: What were the specifics of the human rights situation under examination? What were the prospects for effective action to bring about change? What were the historical and other perspectives needed to evaluate the situation reasonably? He also offered a slightly tempered sense of what could be expected: "We must always keep in mind the limits of our power and of our wisdom. A sure formula for defeat of our goals would be a rigid, hubristic attempt to impose our values on others."
President Carter followed on 22 May 1977 with a commencement speech at the University of Notre Dame, where he outlined his administration's premises for the nation's diplomacy. The first item that he mentioned was human rights: "We have reaffirmed America's commitment to human rights as a fundamental tenet of our foreign policy," he stated.
Carter followed these words with deeds. First, on 1 June 1977 he signed the American Convention on Human Rights, an agreement that was reached between the United States and the other nations of the Western Hemisphere seven and one-half years before on 22 November 1969 but not officially endorsed by either Presidents Nixon or Ford. Second, although it was Congress that mandated so many of the changes that led to greater attention being paid to human rights during the 1970s, it was Jimmy Carter who appointed an assistant secretary of state for human rights effective August 1977. His choice for the post was Patricia M. Derian, an aggressive advocate for civil rights albeit lacking diplomatic experience. That, however, did not cause her to back down from confrontations with seasoned diplomats, She repeatedly clashed with more traditionally minded State Department personnel, like Assistant Secretary Richard Holbrooke on East Asian issues or Ambassador Terence Todman on Latin American matters. Derian did not shape every position the administration took, but she gave concrete evidence of a newfound commitment to human rights, however short lived it ultimately turned out to be.
As international events unfolded in 1978 and 1979, Carter began to focus his energies on more traditional considerations in the nation's diplomacy. First came the war between Somalia and Ethiopia in the horn of Africa, which National Security Adviser Brzezinski viewed as a Soviet proxy war for control over yet another vital region. Further difficulties arose with the collapse of traditional right-wing allies in Nicaragua (Anastasio Somoza in 1979) and Iran (Shah Mohammed Reza Pahlavi in 1979). Andrew Young's resignation as ambassador to the United Nations in August 1979 effectively ended Carter's push on human rights in that international organization. And things only got worse. In Iran, students stormed the American embassy in Tehran in November 1979 and took Americans hostage. A month later the Soviet Union invaded Afghanistan. Concern over human rights quickly fell into the background, and nowhere did that become clearer than in South Korea. When President Park Chung Hee was assassinated in October 1979 and succeeded by a military regime led by Chun Doo Hwan in December, and when that government decided to suppress brutally an uprising in the southern city of Kwangju in the spring of 1980, Carter said nothing, despite his earlier criticisms of Park's record on human rights. Administration officials feared that South Korea could become another Iran. In short, even a president as rhetorically committed to promoting human rights as Jimmy Carter found himself overwhelmed by strategic considerations that weighed in on the side of protecting stability.
PRESIDENTS RONALD REAGAN AND GEORGE H. W. BUSH
Congress and President Jimmy Carter made enough of human rights as a central tenet of American diplomacy so that subsequent chief executives could not ignore the issue entirely, regardless of how little attention they really wanted to give the matter. The Reagan administration, for example, took Kissinger's emphasis on geographical, strategic, and political considerations, combined that with its own brand of politically conservative, fervent anticommunism, and added the requisite dose of human rights rhetoric in castigating the Soviet Union, all the while supporting right-wing dictators throughout the world. The spokesperson for the administration on this topic was the ambassador to the United Nations, Jeane Kirkpatrick. In a 1979 article she had criticized the Carter administration for failing to discern the difference between authoritarian (good) and totalitarian (bad) regimes around the world. The former were to be embraced as friends and allies, because of their ability eventually to change and their present inflexibility when it came to communism. The latter regimes not only would not change, they were communist. Matters of human rights abuses by authoritarian leaders were far less important in her schematic than their willingness to tow the anti-communist line. This was the theoretical framework the administration wanted to employ in its support of right-wing dictators.
The Reagan administration, therefore, offered its full support for repressive governments in places like El Salvador and Guatemala. In both countries the administration lied and covered up numerous atrocities and human rights abuses by the military, all in the name of supporting anticommunism. But from President Reagan's perspective, his predecessor's policies had fared no better. In a 1981 interview with Walter Cronkite, Reagan said with respect to the Carter administration's contradictory behavior on human rights, "We took countries that were pro-Western, that were maybe authoritarian in government, but not totalitarian … [that] did not meet all of our principles of what constitutes human rights, and we punished them at the same time that we were claiming detente with countries where there are no human rights." Secretary of State George P. Shultz assessed the situation similarly. He pointed to the differences between the East and West on moral principles, principles from which their basic policies arose. He argued that human rights could not be used to spurn other nations. That was a cop-out, he insisted, stating that although it made certain Americans feel better about themselves in their righteous indignation, it did not promote the kind of real change that improved human rights. On the contrary, according to Kirkpatrick and Shultz, U.S. pressure on Iran, Nicaragua, and South Vietnam in the 1970s to conform to certain human rights practices brought about these regimes' downfalls, which decidedly worsened the day-to-day circumstances faced by the millions of peoples in those countries.
The practical test for the Reagan administration position came in South Africa, where the administration took to the idea of working with the apartheid regime in the hope of bringing about affirmative changes in race relations there. Assistant Secretary for African Affairs Chester Crocker coined the term "constructive engagement" when discussing the administration's policy toward the white minority government. The idea was to reassure the South African leaders of American support in their time of transition to democracy. That was the option preferred by the administration; the other was to isolate South Africa through sanctions in an effort to force the situation. Congress, as it had during the 1970s, took a more activist position and in 1986 passed the Comprehensive Anti-Apartheid Act, which imposed economic sanctions on South Africa until significant changes were made, in direct opposition to the Reagan administration's constructive engagement policy.
Elsewhere, the Reagan administration appeared to have better luck, though not because of its dedication to constructive engagement or democratic principles. In the Philippines, longtime dictator Ferdinand Marcos stepped aside and allowed the election of Corazon Aquino in 1986, but the principal impetus for change came from the Filipinos. Reagan hesitated at key moments until the matter was all but decided.
The Bush administration made much the same argument on constructive engagement with respect to China in 1989, even after the government had cracked down on the Tiananmen Square protestors, using the People's Liberation Army to crush them on 3 June. Bush secretly sent two high-ranking advisers—National Security Adviser Brent Scowcroft and Deputy Secretary of State Lawrence Eagleburger—to Beijing on 30 June to assure the Chinese leadership that his administration still intended to promote Sino-American relations once the furor over Tiananmen died down. The president sent the two to China again in December, the same month that the administration announced the release of $300 million in business contracts between American corporations and the Chinese government that had been suspended in the wake of Tiananmen. The administration was intent on downplaying human rights violations.
On 20 December 1989 the United States invaded Panama. The official reasons floated for the invasion ranged from harassment by Panamanian Defense Forces of American military officials (and their wives), to Panamanian leader Manuel Noriega's involvement with drug trafficking, to human rights violations. The drug connection was well-known in the early 1980s, but Noriega then cleaned up his act to the point where he received a letter from the Drug Enforcement Agency in 1986 that thanked him for his cooperation in stopping the drug trade. The last of the reasons given was a sheer fabrication, since the Bush administration was more than willing to ignore much more serious human rights violations in China and Iraq or, closer to home, in El Salvador and Guatemala.
THE CLINTON YEARS
Since 1989 the United States has faced a number of humanitarian crises, including ones involving the gross violation, either individually or collectively, of human rights. In 1994, for example, some in the Hutu majority in Rwanda orchestrated massive killings of Tutsis beginning in April. The brutal massacres clearly violated the UN's Declaration of Human Rights, but governments around the world refused to intervene to stop the killing. The administration of William Jefferson Clinton purposely avoided using the word genocide because to have uttered it publicly might have obligated the United States to take action under the UN Convention on the Prevention and Punishment of the Crime of Genocide, approved in December 1948 but not signed by the United States until 4 November 1988. Instead, the administration used phrases like "acts of genocide." When questioned as to the difference between genocide and acts of genocide, Christine Shelley, a State Department spokesperson, responded that "clearly not all of the killings that have taken place in Rwanda are killings to which you might apply that label." When pressed as to how many "acts of genocide" were needed to constitute "genocide," Shelly answered, "That's just not a question that I'm in a position to answer." In other words, better to avoid the issue through linguistic parsing than acknowledge what was truly happening and doing something about it. President Clinton apologized for America's inaction while visiting Rwanda in 1998, but that was years after 800,000 people had been massacred.
The proliferation of independence movements in the wake of the Soviet Union's collapse apparently arose in partial response to Woodrow Wilson's call at the end of the First World War to support such efforts. To their surprise, however, those groups seeking U.S. assistance in their attempts to form independent governments ran into traditional American worries about instability possibly ensuing. In 1999, to cite one example, the leaders of Kosovo traveled to Rambouillet, France, to discuss its status within Yugoslavia. Meeting with American secretary of state Madeleine Albright, they found the United States much less keen than they had hoped regarding their desire to separate from Serbia and what remained of the Yugoslav republic. From the American perspective, supporting independence for Kosovo would set a dangerous precedent: What of the Kurds in Iraq and Turkey, the Tibetans in western China, and the Taiwanese? If those peoples also publicly asserted their desire for independent states, the consequences could possibly involve the United States in a major war, especially in the case of Taiwan. Hence, the Clinton administration remained exceedingly cautious about supporting the collective human rights of the Kosovars, despite their obvious suffering at the hands of the Serbian authorities led by Slobodan Milosevic.
AMERICA'S RECORD AT HOME
In 2001, Francis Fukuyama wrote about the debate between "rights" and "interests" and what difference it makes to speak of "human rights" as opposed to "human interests." More specifically, he delved into why certain groups assert claims to rights when what they are really discussing are interests. In a sense, this is merely a broadening of what Jefferson began when he wrote of the "right" to "life, liberty, and the pursuit of happiness." The United Nations declaration is about "universal human rights," not human interests, and after incisively noting the distinction between the two, Fukuyama concluded that the reason for the proliferating assertions of "rights" in the half century after the UN's declaration had to do with how "rights trump interests because they are invested with greater moral significance." The problem with injecting human rights issues into the nation's diplomacy, he insisted, was that they set up a basic premise for the nation's diplomacy that could never really be fulfilled: "A country that makes human rights a significant element of its foreign policy tends toward ineffectual moralizing at best, and unconstrained violence in pursuit of moral aims at worst." Jimmy Carter seemed to have discovered that the hard way.
On another level, Americans still fail to understand how arrogant some of their national pronouncements on human rights seem to peoples in other countries. While condemning human rights infractions elsewhere, Americans blithely go about ignoring or rationalizing their own society's violations. To cite one example, polls generally show that a vast majority of Americans consider the death penalty a domestic matter, and popular support for allowing states to execute prisoners convicted of certain crimes remains high, although revelations in the late 1990s and early 2000s demonstrated the inconsistent, indeed arbitrary, way in which the death penalty is frequently applied, not to mention the fact that a good number of death-row inmates had recently been proven innocent through DNA testing. The governor of Illinois went so far as to suspend all executions pending a review of the state's legal system regarding capital cases. Nongovernmental organizations that monitor human rights abuses around the world, including Amnesty International and Human Rights Watch, regularly cite the use of the death penalty as a violation of human rights, and the United States receives special mention since some of its states also allow for individuals under the age of eighteen to receive the death penalty for certain crimes. That puts the United States in the same league as Iran, Nigeria, Pakistan, Saudi Arabia, and Yemen, nations not normally listed as standing at the forefront of the world's human rights protectors. And it gets even worse. In 2001, 52 percent of all death-row inmates were African American or Latino, far in excess of their percentage of the general population, which in 2000 stood at 24.8 percent, suggesting a disparity based on racial and ethnic prejudice. Yet the Supreme Court has ruled that statistical findings of uneven sentencing across racial lines regarding capital cases do not constitute sufficient evidence of racial bias. An intent to discriminate must be proven in each case, the court ruled, a nearly impossible burden for defendants appealing their convictions. The United States signed the UN Covenant on Civil and Political Rights but by 2001 had not ratified it, largely because of objections to the covenant's prohibition against using the death penalty on individuals under the age of eighteen.
PRESIDENT GEORGE W. BUSH
That the United States failed to retain its seat on the UN Commission on Human Rights, on second thought, begins to look less and less outrageous when the long history of the nation's own violations is considered. Compounding those problems is resentment at the fact that the United States is the only truly global power. The administration of George W. Bush has not done much to allay concerns or ease tensions. Its unilateral decision to reject the Kyoto Agreement on curbing global warming, its resolve to withdraw from the Antiballistic Missile Treaty with Russia in order to pursue a National Missile Defense plan, and the refusal to send Secretary of State Colin Powell to the UN Council on Racism in Durban, South Africa (and then the withdrawal of the delegation) all seemed to mark even more examples of American arrogance.
The Bush administration argued that it sent only a low-level delegation to Durban to protest the language already proposed by Arab delegates calling Israeli's treatment of Palestinians as racist; the president also objected to discussing reparations for past acts of slavery. Whatever the reasons, the Bush administration should have weighed the importance of the nation's past leadership in the field of human rights against its displeasure over particular language in draft texts prior to the start of the conference. David D. Newsom was right to call attention to the disparity between the ideals articulated by the likes of Thomas Jefferson, Woodrow Wilson, or Eleanor Roosevelt and the reality of the actions pursued or not by the United States. But Jimmy Carter was right when he argued that the nation could not shirk its duty to promote human rights just because of its own imperfections.
Brzezinski, Zbigniew. Power and Principle: Memoirs of the National Security Adviser, 1977–1981. New York, 1983.
Carter, Jimmy. Keeping Faith: Memoirs of a President. New York, 1982. The most vocal president on human rights in the nation's history discusses his reasons for making it so important to his administration's diplomacy.
Chomsky, Noam. Deterring Democracy. New York, 1991. Essential for understanding the duplicitous language employed by policy-makers to rationalize actions.
Forsythe, David P. Human Rights and U.S. Foreign Policy: Congress Reconsidered. Gainesville, Fla., 1988. A very good discussion of Congress's assertiveness after 1973.
——. "Human Rights in U.S. Foreign Policy: Retrospect and Prospect." Political Science Quarterly 105 (autumn 1990): 435–454. One of his many excellent writings on the topic, this one being especially useful as a summary.
Fukuyama, Francis. "Natural Rights and Human History." The National Interest 64 (summer 2001): 19–30.
Kirkpatrick, Jeane. "Dictatorships and Double Standards." Commentary 68 (November 1979): 34–45. The classic criticism of the Carter administration's policies.
Kluger, Richard. Simple Justice: The History of Brown v. Board of Education and Black America's Struggle for Equality. New York, 1977.
Krenn, Michael L. "'Unfinished Business': Segregation and U.S. Diplomacy at the 1958 World's Fair." Diplomatic History 20 (fall 1996): 591–612.
Lapham, Lewis. "The American Rome: On the Theory of Virtuous Empire." Harper's Magazine (August 2001). A biting analysis of the hypocrisy in American diplomacy and human rights.
Mower, A. Glenn, Jr. The United States, the United Nations, and Human Rights: The Eleanor Roosevelt and Jimmy Carter Eras. Westport, Conn., 1979.
——. Human Rights and American Foreign Policy: The Carter and Reagan Experiences. New York, 1987.
Newsom, David D., ed. The Diplomacy of Human Rights. Lanham, Md., 1986. Good collection of articles that covers a wide range of topics relating to the subject.
Schmitz, David F. Thank God They're on Our Side: The United States and Right-Wing Dictatorships, 1921–1965. Chapel Hill, N.C., 1999. A chilling reminder of how stability has usually trumped human rights in, among other things, considering what governments to support.
Smith, Gaddis. Morality, Reason, and Power: American Diplomacy in the Carter Years. New York, 1986. A helpful and succinct overview of the Carter administration, including its emphasis on human rights.
Smith, Tony. America's Mission: The United States and the Worldwide Struggle for Democracy in the Twentieth Century. Princeton, N.J., 1994. A ringing and eloquent endorsement of the benefits provided by America's efforts to promote democracy, but best if read in conjunction with Schmitz.
Vance, Cyrus R. Hard Choices: Critical Years in America's Foreign Policy. New York, 1983.
Vincent, R. J., ed. Foreign Policy and Human Rights: Issues and Responses. Cambridge, 1986.
See also Foreign Aid; Humanitarian Intervention and Relief; Most-Favored-Nation Principle; Recognition .
EXTRADITION, NATIONAL LEADERS, AND HUMAN RIGHTS
On 16 October 1998 Spanish magistrate Baltasar Garzón issued an extradition order for former Chilean dictator Augusto Pinochet, who was in Great Britain for medical treatment at the time. Although the British government eventually permitted Pinochet to return to Chile in March 2000 because of his supposed poor health, Britain's highest court, the Law Lords, had ruled on 24 March 1999 that the charges against Pinochet were so serious—including the murder and torture of Chileans—that they overrode defense counsel's argument that Pinochet was immune from prosecution under Britain's State Immunity Act of 1978. In short, Pinochet could be held legally accountable for his actions while head of state.
In 1999, Henry Kissinger published the third volume of his memoirs, in which he explained the reasons why the Nixon and Ford administrations supported Salvador Allende's overthrow in 1973 and then endorsed the regime under General Pinochet that followed. First, he asserted that the dangers posed by communist expansion in the Western Hemisphere were real, citing Fidel Castro in Cuba and leftist guerrilla activities elsewhere. Second, Kissinger argued that Allende was determined to destroy the democratic institutions in Chile and replace them with a communist dictatorship. Kissinger's defense thus turned on denying involvement in Allende's overthrow and recalling the Cold War context to justify supporting Pinochet.
The Pinochet ruling in Britain gave some officials reason for pause: the United States has held other nations and their leaders accountable for violating human rights, but eventually American leaders may be placed under the same microscope. There is something very chilling, and quite healthy and appropriate, about the prospect of some deliberative body being able to sit in judgment of actions taken by the United States. The notion that American leaders will be held accountable for violating human rights is certainly dim, but such accountability would bring equity to the way in which human rights violations are handled around the world.
HUMAN RIGHTS.A SHORT HISTORY OF HUMAN RIGHTS
INSTITUTIONS AND IMPLEMENTATION
CATEGORIES OF RIGHTS
THEORIES OF RIGHTS
UNIVERSALISM AND CULTURAL RELATIVISM
Human rights have triumphed in the world. They unite left and right, the pulpit and the state, the politician and the rebel, the north and the south. Human rights are the fate of our societies, the ideology after "the end of ideologies," the only values left in a valueless world after "the end of history." And yet many doubts about their effectiveness persist. Recent history has witnessed genocide, mass murder, ethnic cleansing, the Holocaust. Not one day passes without newspaper reports about the latest atrocity somewhere in the world. Triumph and disaster are never far apart. How did we reach this state?
The initial impetus for the age of rights was the adoption of the Charter of the United Nations in 1945, which made the protection of human rights one of the main aims of the organization. Three years later the UN General Assembly passed the Universal Declaration of Human Rights. The declaration was a nonbinding proclamation of minimum standards of treatment of citizens by their state authorities the world over. It paved the way for the drafting of two binding treaties, the International Covenant on Civil and Political Rights and that on Economic, Social, and Cultural Rights, which after long and difficult negotiations were adopted in 1966. The declaration and the two covenants are now considered as an International Bill of Rights and have created a model for regional and specialist standard setting.
The first reference to "human rights" is relatively recent. It appears in legal writings of the 1920s in relation to the position of minorities in the post-imperial European states. But the intellectual pedigree of the concept of human rights is much older. It is associated with the idea of nature and natural law, which started in classical Greece and has occupied a prominent role in Western ethics, politics, and law ever since. In its original version, natural law is part of an archaic cosmology in which the universe (the cosmos) and every thing (and person) in it has its own unique nature that provides it with its purpose or aim in life. The nature and purpose of the acorn is to become a mature oak tree providing the best shade, that of a baby boy to grow and become a just man, that of a cobbler to produce the best possible sandals. A person is virtuous if he strives toward perfection according to his nature, and perfection can only be achieved politically, that is, in the city (polis in Greek) in collaboration with other citizens. A just city provides the conditions for people to develop fully according to their natures, and a city is just if people strive to act according to their natures. The order of the universe is a moral order, with every animate being and inanimate thing having a part to play in its own perfection and completion. Indeed the discovery of the idea of "nature" by early Greek philosophers was an attempt to use reason against received opinion, ancestral authority, and custom. Socrates and Plato, the Sophists, and the Stoics explored what is "right according to reason" in order to combat established powers and the common sense of their times.
It was this natural order of things that obliged Antigone, the loving sister of Polynices, to defy the order of her uncle, King Creon, and bury her brother. Polynices was killed while attacking his native Thebes and was left to be devoured by vultures, against religious law and family duty. As a punishment for her disobedience, Antigone herself was buried alive. But the divine order took revenge on the rationalist king. He was cursed for his arrogance and his family destroyed. In this early confrontation between state law and the order of things, between male reason and calculation and female emotion and devotion to sacred and familial duties, the first and still-greatest symbol of resistance against unjust law was born.
It is a short step from this natural cosmology to argue that generally shared moral principles exist. They depend on the nature of the cosmos and the interlocking purposes of beings and can be discovered by reason. In a legal dispute, the experienced judge, who knew through a long and prudent life the natural order of things, would redress the disturbed relationship and make it again harmonious. His judgment would be what was right according to the nature of things but also what the law requested. Indeed, for both the Greeks and Romans, the word for "right" or "lawful" (dikaion in Greek , jus in Latin) was also the word for "the just state of affairs."
The next step was taken by the School of Stoics around the third and second centuries b.c.e. The Stoics argued that all people share the ability to reason and that moral judgments have a rational foundation. Nature changed from a way of arguing to a source of rules and norms. The new natural law was universal and even divine and became the sole criterion of valid law. This God-given, eternal, and absolute natural law was the foundation of laws and institutions and was disclosed by reason. The Roman politician and philosopher Cicero expressed this change when he wrote that
the true law is the law of reason, in accordance with nature known to all, unchangeable and imperishable; … nor will it be one law in Rome and a different one in Athens, nor otherwise tomorrow than it is today; but one and the same law, eternal and unchangeable will bind all people and all ages; and God, its designer, expounder and enacter, will be the sole and universal ruler and governor of all things.
Natural right used to be a matter of empirical observation, rational contemplation, and dialectical confrontation. Now it became a matter of introspection and revelation. The notion of universal humanity based on the rational essence of man and equal rights for all was a dramatic departure from the unequal and hierarchical Greek world.
But the main force moving the law toward a theory of natural rights was its gradual Christianization. Jewish cosmology believed that the universe is the creation of an omnipotent God, while Christianity placed the individual and his soul at the center of the universe. As a result, nature lost its normative character and became the inanimate natural world. Saint Paul's statement that God has placed a natural law in our hearts replaced classical natural law. And as the Judeo-Christian God is a severe legislator, the Roman idea of right, or jus, took the form of a set of commandments, or rules, found in the scriptures and ingrained in the conscience. By the Middle Ages a largely existential cosmology had been turned into a major weapon in the hands of the church. A crucial link in the Christianization of law must be sought in the theology of Augustine and Thomas Aquinas. Aquinas distinguished four types of law: the eternal, natural, divine, and human. The law lost the cosmic flexibility of the classical tradition and became definite, certain, and simple, its fundamental propositions formulated by God in the Decalogue.
The source of natural law moved from rational morality to divine commandment—a higher law that consists of a small number of abstract ideals and values. These principles were declared superior to state law, which should either follow them or forfeit its claim to the loyalty of the citizens. At the same time, the idea of equality entered the historical scene. It is exemplified in St. Paul's statement that in the eyes of Christ "there is no Greek or Jew, no freeman or slave." Initially this was a spiritual, not political, equality, created by the soul we all possess and our participation in Jesus' plan of salvation. These beliefs had revolutionary power. But when the church achieved its aim of superiority over secular authorities, it turned these beliefs into a doctrine of justification of state power and asked its members to respect and obey the secular princes.
The revolutionary potential of nature was realized after its next great mutation from natural law into natural rights. This sea change was prepared in the writings of the liberal political philosophers of the seventeenth and eighteenth centuries. Thomas Hobbes, John Locke, Jean-Jacques Rousseau, and Thomas Paine argued in different ways that natural law was no longer about abstract principles of state organization and state-church relations but rather a collection of individual rights that belong to the citizens because they pertain to their nature. The liberal philosophers argued that, before forming society, people lived in a state of nature where they enjoyed limitless freedom. However, the hazards and inconveniences of life led these noble savages to restrict their natural freedom by entering into a contract to establish society and political organization. This social contract transferred a large part of their natural freedoms to the government in return for protection and security. But a number of important rights, usually stated as those to life, liberty, and property, were retained by the contractors. The method used by the liberal philosophers was to observe people in their society, deduce their basic needs and desires, and then postulate the outcome of their observations as the basic characteristics of human nature, which must be protected by the institution of rights against state powers. For Hobbes, writing during the English civil war, human nature leads to conflict, and security, its greatest need, must be provided by an all-powerful state. For Locke, who lived in relative peace, man is naturally good, and the state must not interfere with his natural rights.
If state laws violate these natural rights they are invalid and could justify revolution against the unjust power. Rousseau was the favorite author of the French revolutionaries rebelling against the socially and economically static feudal ancien régime. The first act of the successful revolution was to pass a Declaration of the Rights of Man and of the Citizen. Similarly, Paine's Common Sense (1776) greatly influenced the American revolutionaries in their struggle against the colonial power. The American Declaration of Independence and the Bill of Rights were heavily influenced by natural rights theory.
The revolutionary potential of these principles did not escape the victorious revolutionaries. The centralized Western states, which developed out of the great bourgeois revolutions, soon abandoned and condemned the theory of natural rights and adopted the doctrine of legal positivism. For the positivists, the only law worthy of the name is the law posited by the state. A clear distinction separates law from morals, and appeals to a higher law, rights, or the dictates of conscience have no validity in the eyes of authority. The nineteenth century was the epoch of social engineering in the metropolitan states and of empire building and colonialism in the periphery. The law was seen as a tool in the hands of governments, institution builders, and reformers, and appeals to higher principles or individual rights were seen as reactionary hurdles to progress. As the utilitarian philosopher Jeremy Bentham put it, talk of natural rights is "nonsense, nonsense upon stilts, it is belief in witches and unicorns, for there is no right which when its abolition is advantageous to society, it should not be abolished."
The creation of large-scale theory in sociology, economics, and psychology and the rise of mass political parties accelerated the decline in the appeal of natural rights. The belief that political society was created by means of a social contract was seen as a myth while the claim that certain rights are eternal, inalienable, and absolute was exploded by É mile Durkheim and Max Weber, the founders of sociology, and Karl Marx, the founder of socialism. By the first half of the twentieth century the theory of natural rights had been discredited. It was treated in academic writings as an outdated conservative tradition, part of the history of ideas.
The rehabilitation of natural rights under the new guise of human rights dates from the Nuremberg trials of Nazi war criminals after World War II. At a time when international law allowed states to treat their subjects as they liked, the Allied judges were faced with a legally compelling argument from the German defendants. From a positivist perspective, the only law that counts is the law of the state. The main defense argument was that in following the orders and applying the laws of the Nazi state, the defendants were acting within the limits of legality and should not be punished for carrying out their duty under the law. To answer this objection, the court ruled, however, that the systematized killing of Jews and others by the Nazis had been against the customary law of civilized nations and could not be overridden by national laws. In doing so, the tribunal rediscovered a main tenet of natural law. Certain acts are so heinous that they are banned by universal principles of humanity. These crimes against humanity have now become part of international law.
Since the creation of the United Nations in 1945, a major international process for the protection and promotion of human rights has been undertaken. Hundreds of human rights conventions, treaties, declarations, and agreements have been negotiated and adopted by the United Nations, by regional bodies like the Council of Europe and the Organization of African Unity, and by states. Human rights diversified from first-generation civil and political or "negative" rights, associated with liberalism, into second-generation economic, social, and cultural or "positive" rights, associated with the socialist tradition, and finally, into third-generation group and national sovereignty rights, associated with the decolonization process. The first-generation or "blue" rights are symbolized by individual freedom; the second or "red" rights by claims to equality and guarantees of a decent living standard; and the third or "green" rights by peoples' right to self-determination and, belatedly, the protection of the environment. A second approach led to the creation of treaties with a more limited scope. Certain categories of persons may need special protection. Such specialist conventions have addressed the position of refugees and stateless persons, migrant workers, children, and women. Specific instruments were also drafted to eliminate particular forms of human rights violations such as genocide, torture, and racial and gender discrimination. But what lies behind this apparently unstoppable proliferation of human rights?
To paraphrase Friedrich Nietzsche, if God, the source of natural law, is dead, he has been replaced by international law. The horrors of World War II and the Holocaust made it clear that democracy and national legal and constitutional traditions cannot always prevent large-scale violations of rights. As Hannah Arendt put it, it is quite conceivable that one fine day a highly organized and mechanized humanity will conclude quite democratically—namely by majority decision—that for humanity as a whole it would be better to liquidate certain parts thereof. The Germans voted Adolf Hitler into power, and later Slobodan Milosevic was repeatedly elected president of Yugoslavia. International human rights were therefore conceived as a type of higher law that should prevail over national policies. They are supposed to impose restrictions upon governments to prevent them from being beastly to their own citizens. An endless process of international and humanitarian lawmaking has been put into operation, aimed at protecting people from the putative assertions of their sovereignty.
Lawmaking in the huge business of human rights has been undertaken by government representatives, diplomats, policy advisors, international civil servants, and human rights experts. Indeed the proliferation of treaties and codes has made human rights a new type of state law. Codification, from Justinian to the Napoleonic Code, has been the ultimate exercise of legislative sovereignty, the supreme expression of state power. Governments were the enemy against whom human rights were conceived as a defense. Undoubtedly the atrocities of the twentieth century shook and shocked some governments and politicians as much as they did ordinary people. But the business of government is to govern, not to follow moral principles. Governmental actions in the international arena are dictated by national interest and political considerations, and morality enters the stage always late, when the principle invoked happens to condemn the actions of a political adversary. When human rights and national interest coincide, governments become their greatest champions. But this is the exception. In general, government-operated international human rights law is a good illustration of the poacher turned gamekeeper.
That human rights are superior to state law is seen as the result of their legal universalization. The law addresses all states and all persons as persons and declares their entitlements to be a part of the patrimony of humanity, which has replaced human nature as the rhetorical ground of rights. Every state and power comes under the mantle of the international law of human rights, every government becomes civilized as the "law of the princes" has finally become the "universal" law of human dignity. But this is an empirical universality, based on the competitive solidarity of sovereign governments and on the pragmatic concerns and calculations of international politics. A state that adopts the international treaties can claim to be a human rights state. Human rights become a tool for state legitimacy. Natural and human rights were conceived as a tool against the despotism of power and the arrogance of wealth. Their co-optation by governments means that they have lost some of their critical force and are often used to legitimize state practices.
Interestingly, national sovereignty and non-intervention in the domestic affairs of states were the foundation of the post–World War II international system. The contradictory principles of human rights and national sovereignty, schizophrenically both paramount in postwar international law, served two separate agendas of the great powers: the need to legitimize the new world order through its commitment to rights without exposing the victorious states to scrutiny and criticism about their own flagrant violations. While the major powers fought tooth and nail over the definitions and priorities of human rights, they unanimously agreed that these rights could not be used to pierce the shield of national sovereignty. This schizophrenia characterized human rights until the collapse of communism in 1989.
Problems in lawmaking are confounded by difficulties in interpretation and implementation. The international mechanisms are rudimentary and can scarcely improve, while national sovereignty remains the paramount principle in law. The main method is the drawing of periodic or ad hoc reports about human rights violations; the main weapon, adverse publicity and the doubtful force that shame carries in international relations. There are various types of reporting: monitoring, the most common, is carried out usually by volunteers and experts around the world under the auspices of the UN Human Rights Commission. "Special rapporteurs" appointed by the commission draw up reports about specific areas of concern, like torture, or about individual countries with poor human rights records. Under another model, states are invited to submit periodic reports about their compliance with certain treaty obligations to committees created for that purpose (the most famous being the Human Rights Committee under the International Covenant on Civil and Political Rights). Weak implementation mechanisms ensure that the shield of national sovereignty is not seriously pierced unless the interest of the great powers dictates otherwise, as events in the Balkans and Iraq since the late 1980s have shown. Finally, in a few instances international courts or commissions investigate complaints by victims of human rights abuses and conduct quasi-judicial proceedings against states. But the jurisprudence of human rights courts is extremely restricted and dubious, and its rapid changes in direction confirm some of the worst fears of legal realism: barristers appearing before international bodies such as the European Court of Human Rights quickly learn that it is better preparation to research the political affiliations of the government-appointed judges rather than to read the court's case law. It is well known that changes in the political orientation of the appointing governments are soon reflected in the personnel of international human rights courts and commissions.
The most effective international system of implementation has been that under the European Convention on Human Rights (ECHR). The convention protects the main civil and political rights, and no concession to the socialist tradition was made at its inception in 1950. But the convention introduced a radical innovation that has changed legal civilization. Traditional international law was the law of the "civilized princes," a states-based law with no place for individuals. But under the ECHR aggrieved Europeans (as well as residents in member states), after exhausting the remedies offered in their national legal systems, can submit an application to the European Court, based in Strasbourg, France, alleging that one of their rights has been violated by the actions of their state. The court conducts a full judicial investigation of the claim during which the citizen plaintiff is put on an equal footing with the defendant state. At the end of the process, the state is obliged to comply with any adverse findings of the court. Britain has changed its laws on telephone tapping, contempt of court, and the treatment of transsexuals; Germany gave non-German-speaking defendants the right to an interpreter; Austria abolished state monopoly on cable and satellite television; and Ireland decriminalized homosexuality. States can also bring applications alleging violations by their cosignatories against their citizens. When a number of governments brought an interstate application against the Greek dictatorship in 1968 they acted uniquely as their brothers' keepers. After it was found that every right in the convention had been violated by the military junta known as "the colonels," who were not prepared to end the emergency measures they had instituted, Greece had to withdraw from the organization on the eve of its expulsion. But that was the exception. Interstate cases are usually politically motivated. They have been brought by Ireland against the United Kingdom over British policies in Northern Ireland and by Cyprus against Turkey over the invasion and occupation of the island. This attitude represents the way that many governments approach human rights. They are happy to invoke them when their application happens to condemn an enemy.
But despite the various international agreements and mechanisms it must be emphasized that human rights are violated or protected at the local level. Human rights were created as a superior or additional protection from the state, its military and police, its political and public authorities, its judges, businesses, and media. These are still the culprits or—rarely—the angels. Irrespective of what international institutions say or how many treaties foreign secretaries sign, human rights are violated or upheld in the street, the workplace, and the local police station. The relative weakness of international law means that local legal and political initiatives and campaigns may be more effective. Nongovernmental organizations (NGOs), such as the Red Cross, Amnesty International, and Oxfam have been the most important defenders of human rights and humanitarianism since the 1970s. They are able to mobilize international public opinion in the defense of rights more than governments because they cannot be accused of hypocrisy, double standards, and ulterior motives. Additionally NGOs rely on citizen initiatives and campaigns. This way they represent the radical potential of human rights and link to the spirit of popular organization and activism of the early modern natural rights tradition.
Human rights are the most striking institutional expression of the project of the Enlightenment, of the promise of emancipation through reason and law. The Americans rebelled against their colonial masters, the French against static and corrupt political and social power. That is why the early lists of human rights took a "negative" form and were predominantly defensive. They imposed restrictions upon state power, thus creating spheres of unregulated activity in which citizens can exercise their rights. The First Amendment of the U.S. Bill of Rights is a good example: "Congress shall make no law … abridging the freedom of speech, or of the press." By outlawing censorship, this article creates the conditions within which the right of free speech can be exercised.
This first generation of rights includes the protection of life, property, the liberty and security of the person, right to fair trial, prohibition on torture and slavery, and basic political rights such as the right to democratic elections. They are the civil and political rights of citizens, the backbone of the liberal state. Emerging out of the great upheavals of the eighteenth century, they aim at protecting the liberty, dignity, and integrity of the person and promote the ability of citizens to participate in public life.
The democratic and socialist struggles and traditions of the nineteenth century led to the development of the second generation—economic, social, and cultural rights. These rights aim to promote the well-being of people by guaranteeing a minimum standard of material life. They address groups of people, communities and classes rather than isolated individuals, and assume that social solidarity is a central characteristic of societies. The rights to work and decent conditions of work, to education, health care, social security benefits, an adequate standard of life, and participation in cultural life are central to this list. Their enforcement does not rely on legal and judicial procedures. Economic rights cannot be delivered if the state keeps out of society. On the contrary, economic rights are positive in outlook and request state intervention in economy and society in order to create the conditions necessary for their implementation. If civil and political rights underlie the values of liberty and dignity, economic and social rights promote equality, nondiscrimination, and a sense of community that cares for its members.
The differences between the two types of rights developed into a central aspect of the ideological Cold War conducted in various meetings of the United Nations, in legal journals, and in the world media. The West claimed that the communist gulags and lunatic asylums were logical extensions of Marxism's totalitarianism. The Soviets responded that social and economic rights are superior because material survival and decent conditions of life are more important than the right to vote. "The right to a free press is of no interest to a starving and illiterate peasant in an African village," ran the argument.
For liberals, civil and political rights have priority. Their aim is to place limits around state activities, and this negative conception of freedom as the absence of state imposition is the heart of human autonomy and rights. According to liberal theory, economic rights are not proper legal rights. They are claimed by groups, not individuals, and they are "positive" in their action—in other words, they call for state intervention in economy and society, for heavy taxation and central planning, in order to deliver the necessary levels of employment presupposed by the right to work or the revenues necessary for welfare provision and free health care or education. Finally, economic and social rights are not justiciable: they cannot be guaranteed by legislation in a liberal state and, moreover, courts cannot enforce them. The appalling oppression of dissidents was seen as proof of the correctness of the Western arguments, and the assertion that the market is the superior, if not the only, mechanism of distribution was recited as a mantra in response to the communist claims about capitalist squalor and unemployment. These ideological conflicts made it impossible for the United Nations to draft a common international bill of rights. An indication of the liberal domination in the area is the fact that while the Covenant on Civil and Political Rights creates strong individual legal entitlements and state duties, that on Economic, Social, and Cultural rights requests only member states to take measures to implement these rights.
Human rights is a combined term. The human refers to certain standards of treatment to which people are entitled and that create a moral framework within which state policy, administration, and the law should operate. The reference to rights returns us to the discipline of law. Rights were the creation of early modern legal systems and constitute the basic building block of Western law. To have a legal right is (a) to have an entitlement, for example, a property right, which can (b) be realized through the respective action of one or many duty-bearers who must act or refrain from acting in certain ways (a property right creates a near-universal duty in people not to interfere with my property) and (c) can be legally enforced against duty-bearers who do not perform their obligations.
Human rights are a special category of right beset with a number of paradoxes. While they are legal rights, the main duty-bearer is the state. But it is state law that is called upon to enforce these rights, creating tensions within the legal system. Secondly, they combine morality and law, prescription and description, something that often leads to confusion and excessive rhetoric. In the expansive contemporary use of the term, human rights refer to moral or ideal rights that have no legal recognition. A South African during the apartheid regime or a political dissident in China could legitimately say that he or she has "the right not to be discriminated against." This is not a real, legally enforceable right, however, but rather the aim behind the struggle against the social and political system that does not recognize the right. A different form of confusion is evident in the use of the expression "I have a right to X" to mean "I desire X" or "X should be given to me." This linguistic inflation weakens the association of human rights claims with significant human goods and undermines their position as central principles of political and legal organization.
The confounding of the real with the ideal is characteristic of human rights discourse. Article 1 of the Universal Declaration of Human Rights states that "all human beings are born free and equal in dignity and rights." But as Jeremy Bentham commented about a similar article of the French Declaration of the Rights of Man and of the Citizen, infants are not free, as they are dependent for survival on their caregivers, while the idea that people are born or enjoy equality around the world flies in the face of the huge disparities between rich and poor or the north and the south. The descriptive statements of the declarations should be read as prescriptive: people are not, but ought to be, free and equal. Indeed the great power of human rights lies in their rhetorical character, which is strengthened by their ambiguity and openendedness.
But the rhetorical force of human rights is part of their weakness. Over the long history of natural and human rights, their source has moved from purposeful nature, to reason, to God and the scriptures, to human nature, and, in their final mutation, to human rights and to international law. What argumentation or procedure can be used today to attract wide agreement about their principles? As moral standards, human rights derive from a group of anthropological hypotheses and moral assertions about liberty, equality, and the well-being of individuals and their relationship to wider society. Indeed it would be comforting to say that human rights are recognized and given to people on account of their participation in the human race and not through any restricted or regional membership, such as citizenship, nationality, class, or group. Yet it is quite clear that the only real rights are those given by states to their citizens. Aliens and refugees, those who have no state or government to protect them and who could have been expected to be the main beneficiaries of the rights of humanity, have very limited if any rights.
Indeed, the change from natural to human rights marked a loss of faith in the ability to justify rights on the basis of generally acceptable truths about human nature. While arguments from human nature are still canvassed, the "human" of human rights refers mainly to their scope (they are rights that should be given to all human beings) rather than to their justification. Commonly accepted facts about human nature keep changing with scientific knowledge, and whatever they may be, they are not sufficient to generate moral commitments. The method used for justifying rights in the early twenty-first century is constructive. Starting from the basic assumptions of liberal democracy about individual dignity, equality, and tolerance, the moral philosopher builds a coherent system of rights and expectations. This approach has been criticized as excessively abstract and unrealistic. An alternative detects certain common value commitments in the social mores or "deep structure" of a society, which are then raised into principles worthy of legal protection. A problem with that approach is that it raises and enforces legally the values a society has already accepted, and to that extent it neglects the forward-looking and critical function of human rights in relation to power and to received opinion. In any case, human rights standards are set today in international organizations by government representatives, diplomats, and civil servants, and the work of moral philosophers often takes the form of post facto rationalizations.
The debate about the meaning and scope of human rights has been dominated since the 1990s by the argument between the so-called universalists and cultural relativists. The universalist claim is that cultural values and moral norms should pass a test of universal applicability and logical consistency. Human rights have a necessary universalist aspect, partly legal and partly moral. Morally, the justifications behind human rights norms or standards claim universal validity and create a duty of compliance in all situations and irrespective of the state of national law. Human rights must be the same everywhere at least as to their essence, if not their actual formulation. Legally, the large number of human rights treaties and conventions accepted by almost every state in the world has formed a kind of universal law of nations and peoples.
Universalists believe that reason and law give the right answer to moral dilemmas. As a result, judgments that derive their legitimacy from local conditions are morally suspect. But because all life is situated, an "unencumbered" self and judgment based on the protocols of reason goes against the grain of human experience. The counterintuitive nature of universalism can lead its proponents to extreme arrogance: only we, as the real moral agents or as the ethical alliance or as the representatives of the universal, can understand what morality demands. If there is one moral truth but many errors, it is incumbent upon its agents to impose it on others. In such a case, human rights universalists can turn into imperialists, who promote the "civilizing" mission by the force of arms.
Cultural relativists start from the opposite and commonsensical observation that values are contextbound, that they develop within particular histories and traditions. Relativism challenges the presumed universality of normative standards and values. There are many competing views about what is right or wrong, and no transcultural values exist to allow the comparison of competing views and provide the basis of universal legislation. Normality and morality are culture-bound; human rights express the cultural assumptions of Western societies. Their cultural and historical provenance makes human rights European creations and universal declarations of rights a chapter of European idealism. International human rights law has taken little interest in the values, histories, and traditions of non-Western nations and societies. The African Charter on Human and Peoples' Rights (1981) includes an unprecedented part about the duties owed by individuals to African civilization, their states, communities, and families. This idea of a duty owed to one's community is largely unknown to the Western human rights tradition, for which the individual is the center of concern and rights are tools for his or her defense from the incursions of others.
But the relativists have to struggle with a metaethical contradiction. They must deny all absolute claims to truth except for that made for the principle of relativism. Furthermore, the relativist position has been often adopted by oppressive governments as a defense against criticisms of their highly inegalitarian and repressive activities. Indeed the cultural embedment of self and value is a sociological truism; the context, as history, tradition, and culture is malleable, is always under construction. History teaches nothing; it is historians and journalists, intellectuals and politicians, academics and ideologues who turn historical events into stories and myths and in so doing construct ways of seeing the present through the lens of the past. Often the relativist turns local norms and traditional values into absolute truths and imposes them on those who disagree with the oppressiveness of tradition.
In these extreme cases we can detect a certain similarity between universalists and relativists. The Kosovo war of 1998–1999 offers a good example. The Serbs massacred and ethnically cleansed the Albanians to protect the "threatened" community of the Serb nation. The Western allies, however, bombed the Serbs in the name of threatened humanity. Both principles, when they become absolute essences and define the meaning and value of humanity without remainder, can find everything that resists them expendable. Both positions exemplify, perhaps in different ways, the contemporary metaphysical urge: they have made an axiomatic decision as to what constitutes the essence of humanity and follow it with a stubborn disregard for opposing arguments and traditions. But humanity has no essence. The contribution of human rights lies precisely in the endless process of redefinition of humanity and its necessary but impossible attempt to escape external determination. Humanity has no foundation and no ends. Human rights, when not co-opted to the dubious cause of public and political power, are the definition of groundlessness.
Donnelly, Jack. Universal Human Rights in Theory and Practice. 2nd ed. Ithaca, N.Y., 2003.
Douzinas, Costas. The End of Human Rights: Critical Legal Thought at the Turn of the Century. Oxford, U.K., 2000.
Gibney, Matthew, ed. Globalising Rights. Oxford, U.K., 2003.
Ishay, Micheline. The History of Human Rights: From Ancient Times to the Globalization Era. Berkeley, Calif., 2004.
Kennedy, David. The Dark Sides of Virtue: Reassessing International Humanitarianism. Princeton, N.J., 2003.
Owen, Nicholas, ed. Human Rights, Human Wrongs. Oxford, U.K., 2002.
Steiner, Henry J., and Philip Alston. International Human Rights in Context. 2nd ed. Oxford, U.K., 2000.
Human rights abuses and protests against them have been a major issue in European overseas expansion from its inception. The abuses themselves indicate a significant aspect of the nature of colonialism: its tendency to treat non-European peoples as alien "others" and thus subject them to various forms of exploitation and suppression. The protests voiced by both Europeans and colonized populations against such abuses were sometimes used as attacks against the very idea of colonialism. However, these criticisms have also served to justify and inspire many new forms of colonialism as well as their continuation into the postcolonial era.
In tracing the historical links between colonialism and human rights, one must review a rather complicated series of events, motivations, and responses. The abuses that resulted from efforts to extract wealth from Asia, Africa, and the Americas often occurred at the hands of perpetrators who attempted to rationalize their actions by references to the inhumane practices of the indigenous societies in these regions. However, even the protesters against such European atrocities as the Atlantic slave trade often proposed in their place new colonial regimes devoted to human rights-based "trusteeship" rather than exploitation. Colonialism thus developed, alongside its political economy, a moral economy driven by human rights concerns.
This article examines five major cases of colonial human rights abuse with the resulting protests and the way such protests could produce new forms of colonialism. A more complete catalog of the abuses themselves can be found in the compendium Le livre noir du colonialisme (The Black Book of Colonialism, 2002).
In considering claims to associate colonialism with human rights, we first have to consider how this concern for overseas territories may also have served—or even been determined by—more self-interested economic or political motives. However, the moral economy of colonialism had a life of its own. In almost all instances such human rights campaigns were immediately justified as a response to very real social problems in various parts of the world. Often these problems resulted from a prior European colonial presence, although the targets could also be indigenous practices. Within Western society these efforts were further driven by the need to validate Europe's religious heritage, its secular Enlightenment humanitarianism, or the moral consciences of modern individuals.
SPAIN AND AMERICAN INDIANS
The sufferings of Native American populations during the first centuries of Spanish trans-Atlantic expansion are among the best known episodes of colonial human rights abuse. Just in terms of population, Mexico alone lost somewhere between 25 and 50 percent of its population between 1500 and 1600. During the same period almost all of the indigenous inhabitants of the Caribbean islands of Hispaniola (present-day Haiti and the Dominican Republic), Cuba, Puerto Rico, and Jamaica also disappeared.
The main cause of this demographic catastrophe was not intentional Spanish action but rather the introduction of new diseases, especially smallpox, into a region with no previous exposure to such illnesses. However, the violent attacks upon local peoples by early Spanish explorers and conquistadors, eager to find gold and other sources of quick wealth, also contributed to population decline. Even more significant was the postconquest mistreatment of Indians who were forced to work for the Spaniards under a system known as encomienda, which required many natives to pay tribute in money or labor to conquerors or other powerful settlers.
These abuses became known throughout Europe because one of these Spanish colonizers, the missionary friar Bartolomé de Las Casas, wrote about them in a widely circulated work, A Brief Account of the Destruction of the Indies (1552). Even before his book came out, Las Casas and other Spanish clergy had publicized the plight of Spain's Native American subjects and debated publicly with other priests, who claimed that the Indians deserved punishment for their barbarous customs of human sacrifice and refusal of conversion to Christianity. The defenders of the Indians reformed and tamed the encomienda and officially abolished slavery in 1542. It was ultimately in the material and political interest of the Spanish Crown to preserve its newly acquired subjects and maintain some control over European settlers in the New World, whose encomiendas at first provided a kind of feudal autonomy. However, such reforms proved difficult to enforce overseas and were challenged many times by colonial interests in Spain.
Las Casas is justifiably recognized as one of history's greatest champions of human rights and his Brief Account challenged the basic legitimacy of a colonial regime responsible for such massive atrocities. At the same time he continued to search for a more humane way to continue the colonial project and tried to understand Native American culture as a stage on the way to Christianity. Moreover the moral and ultimately economic crisis of the brutal Spanish attempts to exploit New World Indians produced other forms of colonialism that raised their own human rights issues. The quick translation of Las Casas's book into a number of European languages created the Leyenda negra (Black Legend) of Spanish colonialism and thus provided propaganda for rival powers, most notably Britain, France, and the Netherlands, to launch their own initiatives in overseas regions claimed by Spain. In the Caribbean these new settlements completed the near annihilation of the indigenous population. Las Casas at first recognized that if Indians should not be enslaved, Africans could easily replace them. He later recanted this judgment.
SLAVE TRADE AND COLONIALISM IN THE ATLANTIC
The Atlantic slave trade ranks among the greatest atrocities of European colonialism. Over three and one-half centuries (1500–1870) it brought somewhere between 11 and 12 million involuntary migrants from Africa to the New World. Approximately 15 percent of the Africans forced upon slaving ships died under the horrendous conditions of the "Middle Passage" across the Atlantic. Many more lost their lives in wars and raids within Africa and on the often lengthy foot journeys from the interior to the coast. As workers in the New World, particularly on the Caribbean and Brazilian sugar plantations, which were their most common destination, slaves had low life expectancies, bore few children (two-thirds of those purchased were males), and thus had to be replaced constantly.
Detailed information about the Atlantic slave trade (including a digitalized database) exists because sophisticated European entrepreneurs conducted the entire enterprise as a highly organized business. They purchased the vast majority of slaves under peaceful market conditions from African middlemen who either captured slaves themselves or bought them from other Africans. The high demand for such labor in the New World and competition among various European buyers meant that the prices offered to African suppliers rose steadily throughout the history of the trade. However, most of the profit went to Europeans who controlled the oceanic shipping as well as the production, processing, and sale of valuable plantation goods.
African societies subject to slave trading found various means of resisting or at least evading such horrors, although their efforts appear, at best, to have diverted and extended the routes used by their captors. Historians like John Thornton have argued that, in its earliest stages, when the scale of European demand was still modest, this commerce fit easily into African economic conceptions, which centered upon "wealth in people"; that is, the accumulation of human dependents and supporters rather than control over land. Whether or not one accepts such an explanation, once the slave trade reached the high numbers of its last two centuries (1650 and later) the competition among Africans for European goods (now needed to retain any significant body of supporters) and firearms (required for defense as well as aggression) made it difficult to drop out of this commerce. African oral tradition contains a strong version of what historians understand to be a human rights critique of the slave trade: Those ancestors who delivered people to the overseas servitude are depicted as witches who drew their wealth from killing others or transforming them into zombies.
The termination of the slave trade (and eventually plantation slavery) came about in the nineteenth century as the result of actions in the larger Atlantic world. One important force was resistance by captured Africans themselves. Whether still aboard ships or installed in the New World, slaves frequently fled or revolted against their conditions. However, given the profitability of the plantation system, until the 1790s European authorities were able to mobilize the necessary resources to overcome such threats.
At the end of the eighteenth century two new factors contributed to the demise of the slave trade: the growth of an abolitionist movement within Europe and the 1791 slave revolt in the very rich French colony of St. Domingue (which became, in 1804, the independent Republic of Haiti). These two developments cannot be entirely separated, because the Haitian revolt occurred in the turbulent context of the French Revolution, which embraced abolition along with other radical reforms. Haiti encouraged further revolts among New World slaves but also strengthened the resolve in some places, such as the United States and Cuba, to maintain strict controls of their still highly productive servile laborers. Moreover, post-emancipation society within Haiti proved to be anything but a model of human rights. The initiative in antislavery thus remained with the citizens of those nations that had organized and prospered from the Atlantic plantation complex.
Historians often view the abolitionist movement as the first international human rights campaign. Its secular ideology drew upon the same Enlightenment beliefs as the French Revolution. However, the major base of antislavery was in Britain, where it also found support among new, invigorated Christian churches—first Quakers and evangelical sects but later more established Protestant denominations and eventually Roman Catholics (including churches in continental Europe). During the nineteenth-century heyday of abolitionism Britain was the center of the wealthiest and most extensive empire in the world. Thus British sponsorship of such a crusade has raised a number of questions about the relationship between human rights and colonialism.
For many proponents and opponents, antislavery involved a major sacrifice of colonial interests and for this reason was resisted not only by British planters but also by broader interest groups in France, Portugal, Spain, and the United States. Others saw slavery as economically outdated because of its incompatibility with the free trade and free labor values of a new industrial order, which also had little need of colonies. Finally, in the overseas spaces of slavery and the slave trade, abolition required active intervention by human rights proponents, resulting in strengthened and even expanded colonial responsibilities.
The debate about the costs of colonialism and its compatibility with industrial capitalism has centered around the writings of Eric Williams, both a major historian and leading figure in the decolonization of his native Trinidad. Arguing against a long tradition of extolling British self-sacrifice, Williams asserted that the Atlantic triangle had made critical contributions to British industrialization but was then jettisoned when sugar colonies became unprofitable and industrial interests saw them as an obstacle to the development of new global markets. While there is still considerable debate among scholars about how important colonial trade was to Britain in the eighteenth century, few historians would support Williams's view that plantation slavery was economically moribund in the first half of the nineteenth century. The booming export of slave produce from Brazil, Cuba, and the southern United States made this clear. Even liberal economists of the time recognized that in regions with low ratios of population to land (including tropical Africa) some kind of constraint over people was necessary in order to provide affordable labor to large agricultural enterprises.
The outlawing of the slave trade (1808) and then slavery itself (1834–38) did, in fact, cost Britain significant sums of money. Plantation production in British colonies was hampered, ex-slave owners received generous compensation payments, domestic consumers were required to pay extra import duties on slave-grown foreign sugar, and the Royal Navy was mobilized to enforce prohibitions against the slave trade, thus also undermining British commercial domination over the rich territory of Brazil. However, Williams was not entirely wrong, since the British could now afford such a price given both their great prosperity as the first industrial power and the much smaller role that the plantations system now played in their economy. The bottom line seems to be that changes in the economic valuation of colonies only permitted, rather than drove, the antislavery movement so that human rights concerns remain a significant force in this change.
It is possible to see an ideological link between the needs of an industrial society and antislavery. Industrialization was accompanied by great displacement and often severe hardship for the working classes of Britain and the image of slaves, still worse off than they were, might have reconciled them to their situation as legally free laborers. Contemporary observers like the novelist Charles Dickens sometimes caricatured antislavery advocates as people more concerned with sufferings in distant "Borrioboola-Gha" than the situations immediately around them. However, to be fair to Victorian reformers, they did intervene in domestic as well as foreign matters. Moreover, the British working class appropriated antislavery rhetoric to emphasize the hardships rather than the freedom of their own conditions.
There are other domestic purposes served by human rights campaigns, particularly in maintaining the relevance of religious institutions that might otherwise be seen as out of touch with the modern world. The stress created from the breaking up of families as the primary evil of slavery (as depicted by Eliza fleeing across the ice with her baby in the global bestseller Uncle Tom's Cabin by Harriet Beecher Stowe's) also reinforced the "cult of domesticity," a major mainstay of Victorian middle-class morality. Victorian domesticity meant that women whose husbands could afford to support them should focus their energies upon creating a proper home. However, antislavery was one of the causes that allowed middle-class European and American women to move from their homes out into public life and thus laid the groundwork for women's rights efforts.
In the case of antislavery, colonies were not abandoned but rather given new attention. The same evangelical and dissenting Scots churches that played a leading role in antislavery agitation at home also sent missionaries out into the Caribbean colonies as well as regions of Africa that were not yet colonized. Under the motto of "Christianity, Civilization, and Commerce" such efforts combined evangelization with efforts to promote economic enterprise that might provide a positive alterative to slave trading and slavery.
In the New World plantation colonies, the urge to convert the local working force did not necessarily spring from abolitionist sentiments. In Catholic colonies, slaves had always been made into at least nominal Christians without any thought of freeing them. In the British Caribbean, however, the earliest Methodist and Baptist missionaries arrived only late in the eighteenth century. Although these groups took no public stand against slavery, they had close links to abolitionists at home and were always under suspicion by planters. As a result they found themselves caught between the politics of strengthened colonialism and anticolonialism. To fend off the attacks from local whites, who enjoyed considerable autonomous rule through their own assemblies, the missionaries allied themselves with official colonial authorities. At the same time the teachings of the missionaries encouraged slaves and the small number of free blacks to demand greater rights and even to establish their own churches, which became the organizing centers for revolts in the last decades before emancipation.
After emancipation missionaries played a more overt and direct secular role in helping ex-slaves establish farms and villages independent of their former plantations. But planters again opposed them by blocking access to land, and in 1865 another major revolt broke out in Jamaica, for which missionaries, as before, were blamed. The British government now had the option of loosening its control over this and other islands, as had already been done with white settlement colonies such as Canada. However, this would have meant either leaving whites in charge and inducing further violence or enfranchising a significant part of the black majority, which Britain was then unwilling to do. The choice instead was to take away existing self-government privileges and impose a more authoritarian colonial regime on most of the Caribbean islands. Here the cost of human rights (for both local subjects and the British government, which now had little economic interest in the Caribbean) was trusteeship, with decolonization postponed for almost a century.
During the era of the slave trade, tropical Africa had not been colonized beyond a few small territories around European trading posts. During the nineteenth century new exports (mainly vegetable oils) were found to sustain trade with the outside world, but none had the strategic importance of slaves. Some European nations like Holland and Denmark thus abandoned their African holdings. The British, however, not only retained their old positions but found a new naval and diplomatic mission in policing both the Atlantic and Indian Oceans against slave trading. Three new colonies, Sierra Leone (British), Gabon (French), and Liberia (United States), were founded to accommodate either Africans rescued from illegal slaving vessels or freed slaves from North America.
Meanwhile missionaries and explorers, usually motivated to some degree by antislavery, brought an entirely new European presence to large portions of Africa. The most famous of these figures, David Livingstone, both a missionary and explorer, carried on relentless propaganda against the slave trade whether practiced by yet-unreformed Europeans (Afrikaners in South Africa, the Portuguese in Angola and Mozambique) or a new non-European target, Muslim Arabs and Swahilis in East and Central Africa.
In retrospect, all the antislavery efforts of the earlier 1800s appear like a prelude to the abrupt colonial partition of tropical Africa at the end of the century. The immediate reasons for these moves must be sought in the Great Power political rivalries and domestic European economic and social anxieties. However, antislavery initiatives provided bases for claims to particular territories and an additional justification at home for such heavy commitment to territories of little or no proven commercial worth.
Once colonies were established mission societies greatly expanded their activities in tropical Africa, combining efforts to win converts with social services, especially education and medical care. In this sense they provided a kind of humanitarian justification for colonialism. However, the missions also took responsibility for exposing human rights abuses, sometimes within African societies (such as female genital cutting in Kenya) but more publicly by colonial regimes, most notably the Belgian Congo, the Portuguese territories, and British Kenya. Even more than in the Caribbean, such interventions aimed less at the removal of colonial rule than at shifting power from private European entrepreneurs to government officials, presumed to be more committed to trusteeship than exploitation. The model for such a moral colonial regime first emerged at the same time as the antislavery movement, in British India.
INDIA AS THE "WHITE MAN's BURDEN"
The end of the 1700s witnessed a kind of "moral turn" throughout the European colonial world. Not only did plantation interests in the Atlantic have to contend with abolitionism, but the administration of the British East India Company (EIC) went through a radical reform. In the case of India, the field for human rights intervention was not an established colonial order but rather one that had sprung up, even more sensationally than in Africa a century later.
The British EIC was one of the most important players in the British economy of the early and mid-eighteenth century but at that time controlled only a few coastal enclaves in India itself. Between 1750 and 1765 it suddenly became the territorial ruler of Bengal, the richest state within India, and engaged in local warfare that would eventually give it dominion over the entire South Asian subcontinent. This transformation at first provided a great boost to the EIC's revenues, but the company soon fell into bankruptcy, due to corruption and high military costs. As a result, its affairs came under the direct supervision of the British Parliament.
In the ensuing British debates about Indian reform, human rights issues played a major role, since the EIC servants had clearly abused both their employer and its Indian subjects in order to amass great personal fortunes. The solution imposed upon the EIC by the Cornwallis Reforms of 1787–93 created a civil service entirely independent of the Company's commercial functions but whose senior ranks were restricted to British, as opposed to Indian, membership. The new civil servants were required to sign covenants guaranteeing their probity and received sufficiently high salaries and benefits so as to dissuade them from the temptations and risks of corruption. Because of the attention stirred by Indian issues in Britain, many of these officials were recruited from the same Evangelical circles as those of the antislavery movement. Thomas Babington Macaulay, the great British historian, also served in the Indian administration and was the son of the first governor of the Sierra Leone colony. The ethos of the early Indian Civil Services has thus been described by historian Francis Hutchins, in terms very similar to the antislavery movement, as "an atonement for original sin" (Hutchins 1967, p. 5).
In the first stage of their rule in India the British did not attempt to impose their own ideas of human rights upon anyone but British administrators themselves. Instead they tried to understand the indigenous Sanskrit and imported Muslim culture that had been used to govern the subcontinent previously. Although these "Orientalist" researchers provided the basis for modern scholarship on India, contemporary historians claim that they froze tradition in such a way as to make institutions like caste discrimination, communal (Hindu-Muslim) division, and sati (widow burning) more abusive than they had been in the past.
From the early 1800s until the uprising of 1857, men from an Evangelical and Utilitarian background, who wanted to propagate British culture and its values more directly, dominated Indian administration. As stated in Macaulay's famous minute on educational reform, the object was to produce "a class of persons, Indian in blood and colour, but English in taste, in opinions, in morals and in intellect." In this period sati was abolished and a school system was established, both of which eventually created the basis for what Macaulay called "the proudest day in British history" (Stokes, 1959, pp. 45-46) when Indians would be prepared to take over their own governance.
Even for Macaulay, however, such a day was seen as very distant, and it was postponed still further by the great Indian uprising of 1857. On the side of both Indian rebels and British avengers, the rebellion involved horrendous atrocities against civilian populations. Colonial authorities responded to these events by strengthening their political control over India, but did so with less intervention into local culture, which they presumed to be one of the causes of the uprising. The initiative in human rights advocacy thus shifted to Western-educated Indians. The major demand among these elites was self-rule, but under the leadership of Mahatma Gandhi both the methods and goals of nationalism came to be associated with nonviolence, concern for the poor, and the building of bridges across divisions of caste and religion.
When Indian independence was finally achieved in 1947, it fell far short of these standards. The partition of the former British Raj, along Hindu-Muslim lines, into India and Pakistan produced massive population displacements accompanied by killings that cost between 500,000 and 1 million lives. Gandhi was assassinated the following year by a Hindu fundamentalist. However, his example continues to inspire human rights activism in India and has been a major influence on efforts against oppression in other parts of the world, most notably the civil rights movement in the United States.
MAX HAVELAAR: OPPRESSION AND REFORM IN DUTCH INDONESIA
Examples of colonial moral economy have concentrated upon the British Empire for two reasons: British overseas possessions far outstripped those of other European countries through most of the modern era and religiously inspired moral reform played a greater role in metropolitan British life during this period than for the other major colonial powers, the Netherlands and France. The Netherlands is a particularly interesting comparison, since the country shared a good deal of the Protestant culture and commercial orientation of Britain and also transformed its East India Company into the ruler of a large Asian territory, in this case the future Indonesia.
During the late 1700s and early 1800s, human rights discourse played little role in Dutch colonial affairs. Slavery was not abolished in the Dutch West Indies until 1863 and the far richer East Indies (Indonesia) was very profitably exploited as a kind of state plantation under the notorious cultuurstelsel (cultivation system). Some protests began to emerge in the 1850s against the excessive demands made upon Javanese peasants but it was only in 1860, with the publication of Multatuli's (Eduard Douwes Dekker) novel, Max Havelaar, that the issue really drew wide public attention. In a rare case for Dutch literature, Max Havelaar was translated into all major European languages and became perhaps the most widely read work on colonialism in the nineteenth century. Like Uncle Tom's Cabin, to which it is often compared, it uses very romantic and sentimental literary devices to depict the plight of its victims, in this case Javanese peasants.
In the wake of such bad publicity, the cultivation system was abolished in 1870. However, the new economic regime that replaced it still relied upon Europeanrun plantations, as opposed to the more independent peasant farming advocated by most humanitarian critics in the Caribbean and tropical Africa. At the end of the 1890s the Dutch announced their conversion to an "Ethical Policy" in the East Indies, meaning a greater investment in indigenous welfare. However, the colony continued to be seen and operated as a major economic asset of the mother country. The Dutch showed little tolerance for nationalist movements and only departed after the violence of Japanese occupation and a brief but bitter war for independence.
FRANCE AND THE STRUGGLE OVER ALGERIA
France was the center of Enlightenment thought and its revolution produced the first formal Declaration of Human Rights in 1789. However, such ideas were not extended to the colonies under the succeeding Napoleonic regime and the restored monarchies of the nineteenth century. By this time France had few overseas possessions left after losing a long series of world wars to Britain. Moreover, political authorities and the Catholic Church associated abolitionism, the main project of colonial humanitarianism at the time, with the radical excesses of the French Revolution and the continuing British threat. Slavery in the French sugar islands of the Caribbean and Indian Ocean was only abolished in 1848, during the brief Second Republic interlude between the monarchy and the Second Empire of Louis Napoleon.
The monarchy had, however, bequeathed to France a new colonial realm, Algeria, which raised its own set of human rights issues. French colonialism in Algeria followed a pattern similar to that of South Africa: Much of the land and most government resources were devoted to white settlers but the already large indigenous Arab and Berber population did not fade away, as in much of the Americas and Australasia, but instead grew in size and discontentment.
France's most liberal solution to colonial problems was not, as in the British case, to grant local self-government with loose membership in the empire-commonwealth, but rather to assimilate colonies to the mother country. Thus the entire population of the old plantation colonies became French citizens, with representation in the Paris National Assembly. These policies could not be fully applied to tropical Africa or Indochina, regions that thus gained eventual independence; the former mostly peacefully, the latter after a violent but distant war. In Algeria the white settlers (as well as native Jews) were granted full citizenship rights by 1870. However, the majority Muslim population could only attain such privileges by accepting French civil regulations of their personal status; since this amounted to abandoning Islam, only a tiny number undertook it.
The initial imposition of French rule in Algeria, as well as later concessions to settlers, had produced many episodes of violent confrontation with the local population. But these clashes only came to be viewed as a major human rights issue during the 1954–62 war for Algerian independence, which cost somewhere between 350,00 and 1 million lives. Violence took the form of terrorism against civilian settler populations and native collaborators on the part of Algerian nationalists, and counter-terror, including bombing and torture, by the large number of French troops sent to enforce European rule.
The Algerian forces never won a military victory, but the war created a disastrous divide among the French. On one side were metropolitan leftists and liberals, appalled at the moral costs of repression; opposing them were Algerian settlers and right-wing elements within the army, who joined in a rebellion that overthrew the Fourth Republic. The man brought in to establish a new regime in France, Charles de Gaulle, first appeared to represent those monarchical and imperial traditions that favored national interests over human rights. But after assessing the forces at work in Algeria, De Gaulle shifted toward granting independence. This move unleashed a last wave of right-wing terror in both Algeria and the Métropole, but at the end France finally disengaged from its North African colony.
Algeria, like Haiti before it and many other former European colonies, experienced horrendous violations of human rights in the decades after its independence. There is clearly some historical connection between the colonial heritage and abuses of postcolonial regimes against their citizens and various ethnic and religious groups against one another. However, with very few exceptions, most notably Iraq in the 2000s (where human rights was not presented as the main basis for an American-led invasion) Western powers have not returned to impose their own regimes. Instead it is the human rights movement, based in various religious and secular non-governmental organizations (NGOS), that mounts protest and offers various kinds of social and material aid. These bodies are the heirs to the moral mission of Bartolomé Las Casas, the Enlightenment, and the anti-slavery campaign. Whether such efforts are the basis for a more just and egalitarian world order or an ethnocentric continuation of colonialism remains open to debate.
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Davis, David Brion. The Problem of Slavery in Western Culture. Ithaca: Cornell University Press, 1966.
Diouf, Sylviane A., ed. Fighting the Slave Trade: West African Strategies. Athens: Ohio University Press, 2003.
Ferro, Marc, ed. Le livre noir du colonialisme: XVIe-XXIe siècle, de l'extermination à la repentance. Paris: Laffont, 2003.
Horne, Alistair. A Savage War of Peace: Algeria, 1954–1962. New York: Viking Press, 1978.
Hutchins, Francis G. The Illusion of Permanence: British Imperialism in India. Princeton: Princeton University Press, 1967.
Las Casas, Bartoloméde. A Short Account of the Destruction of the Indies (edited and translated by Nigel Griffin). London: Penguin Books, 1992.
Mutua, Makau. Human Rights: A Political and Cultural Critique. Philadelphia: University of Pennsylvania, 2002.
Multatuli, Eduard Douwes Dekker. Max Havelaar or the Coffee Sales of the Netherlands Trading Company. (1860). London: Penguin, 1987.
Ruedy, John. Modern Algeria: The Origins and Development of a Nation. Bloomington: Indiana University Press, 1992.
Stokes, Eric. The English Utilitarians in India. Oxford, U.K.: Clarendon, 1978.
Thornton, John. Africa and Africans in the Making of the Atlantic World, 1400–1800. Cambridge: Cambridge University Press, 1998.
Todorov, Tzetvan. The Conquest of America: The Question of the Other. New York: Harper & Row, 1983.
Williams, Eric. Capitalism & Slavery. Chapel Hill: University of North Carolina Press, 1944.
Human rights constitute a set of norms governing the treatment of individuals and groups by states and nonstate actors on the basis of ethical principles incorporated into national and international legal systems. Because the subject matter of the norms in question relate to the treatment of human beings, human rights overlap to a considerable degree with ethics, but they nevertheless should not be confused with ethics. Similarly, because human rights include the right to health and refer to essential social determinants of health and well-being of people, they overlap with many principles and norms of bioethics. Human rights and bioethics differ, however, in scope, sources, legal nature, and the mechanisms of monitoring and applying the norms.
The scope of bioethics is the ethical issues arising from healthcare and biomedical sciences, whereas that of human rights embraces the claims individuals and groups can legitimately make against states and nonstate actors to respect their dignity, integrity, autonomy, and freedom of action as defined in an officially endorsed set of standards or norms. Bioethics regulates clinical encounters with patients on the basis of principles; human rights, by contrast, are the special rules agreed upon in a given society to achieve justice and well-being.
The source of human rights is the norm-creating process of national and international legal systems, whereas that of bioethics is the deliberations and published opinions of leading thinkers, constituted review boards, and professional associations on the health-related ethical issues they address. Bioethics and human rights share an ethical concern for just behavior, built on empathy or altruism. The proximate formal source of human rights is typically an international human rights treaty or declaration while that of bioethics is a professional code or review board guidelines. The proximate source occasionally is identical, as when an instrument of international law directly addresses an issue of bioethics and human rights, for example, in the United Nations Educational, Scientific and Cultural Organization's (UNESCO) Universal Declaration on the Human Genome and Human Rights or the Council of Europe's Convention for the Protection of Human Rights and Dignity of the Human Being with Regard to the Application of Biology and Medicine, both of which were adopted in 1997.
The legal nature of human rights norms ranges from merely aspirational claims to justiciable and enforceable legally binding obligations. An important distinction is made between rights and human rights. In ethics a right refers to any entitlement, the moral validity or legitimacy of which depends on the mode of moral reasoning the ethicist is using. In law, a right is any legally protected interest. In human rights discourse, a human right is a higher-order right authoritatively defined using the expression human rights with the expectation that such a right carries a peremptory character and thus prevails over other (ordinary) rights. Another distinction is between the natural law and positive law foundations of human rights. The former refers to rights deriving from the natural order or divine origin, which are inalienable, immutable, and absolute, whereas in positive law rights are recognized through a political and legal process that results in a declaration, law, treaty, or other normative instrument. These may vary over time and be subject to derogations or limitations designed to optimize respect for human rights rather than impose an absolute standard. Human rights emerge from claims of people suffering injustice and thus are based on moral sentiment, culturally determined by contextualized moral and religious belief systems. They become part of the social order when an authoritative body proclaims them, and they attain a higher degree of universality based on the participation of virtually every nation in the norm-creating process, a process that is law-based but that reflects compromise and historical shifts. The International Bill of Human Rights (consisting of the Universal Declaration of Human Rights [UDHR] of 1948 and the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights, both of 1966), along with the other human rights treaties of the United Nations (UN) and of regional organizations, constitute the primary sources and reference points for what properly belongs in the category of human rights.
The methods of monitoring compliance with human rights include moral judgments made with reference to recognized human rights, quasi-judicial procedures of investigation and fact-finding leading to official pronouncements of political bodies, and enforceable judicial decisions. The parallel methods of bioethics focus more on codes of bioethics and official pronouncements of professional bodies that may result in altering research design or the behavior or liability of health professionals in their relations with patients or in policies affecting the health of populations.
The overlap of human rights and bioethical discourse and the differences between the two become clearer as one clarifies the following: the emergence of human rights in political and legal discourse, the content of the right to health as defined in human rights instruments, the other human rights as they relate to health and well-being, and the role and means of promotion and protection of human rights.
Emergence of Human Rights
The early formulation of the norms that are characterized today as human rights is inseparable from historical and philosophical manifestations of human striving for justice. Ultimately, human rights certainly derive from basic human instincts of survival of the species and behavior of empathy and altruism that evolutionary biology is only beginning to understand. Since human evolution is driven by reproductive selfishness, one could wonder why the human species would develop any ethical system, like that of human rights, according to which individuals manifest feeling for the suffering of others (empathy) and—even more surprising—act in self-sacrificing ways for the benefit of others without achieving any noticeable reproductive advantage. And yet, as Paul Ehrlich notes in Human Natures, "empathy and altruism often exist where the chances for any return for the altruist are nil" (p. 312). Natural selection does not provide the answer to moral behavior as "there aren't enough genes to code the various required behaviors" but rather "cultural evolution is the source of ethics" (p. 317) and therefore of human rights.
Religion and law have an ambiguous role in this historical process. The history of religions is replete with advances in the moral principles of behavior—many of which directly influenced the drafting of human rights texts—but also in crimes committed in the name of a Supreme Being. Similarly, the emergence of the rule of law has been critical both to advancing justice and human rights against the arbitrary usurpation of power in most societies and to preserving the impunity of oppressors.
Scholars trace the current configuration of international human rights norms and procedures to the revolutions of freedom and equality that transformed governments across Europe and North America in the eighteenth century and that liberated subjugated people from slavery and colonial domination in the nineteenth and twentieth centuries. Enlightenment philosophers derived the centrality of the individual from their theories of the state of nature. Social contractarians, especially the eighteenth-century French philosopher Jean-Jacques Rousseau, predicated the authority of the state on its capacity to achieve the optimum enjoyment of natural rights, that is, of rights inherent in each individual irrespective of birth or status. Rousseau wrote in A Discourse on the Origin of Inequality (1755) that "it is plainly contrary to the law of nature … that the privileged few should gorge themselves with superfluities, while the starving multitude are in want of the bare necessities of life"(p. 117). Equally important was the concept of the universalized individual ("the rights of Man"), reflected in the political thinking of Immanuel Kant, John Locke, Thomas Paine, and the authors of the French and American declarations. Much of this natural law tradition is secularized in contemporary human rights.
World War II was the defining event for the internationalization of human rights, with the latter anticipated by Roosevelt's "Four Freedoms" speech (1941), confirmed by the inclusion of human rights in the UN Charter (1945), and applied at the trial of Nazi doctors, leading to the Nuremberg Code (1946). In the war's immediate aftermath, bedrock human rights texts were adopted: the Genocide Convention and the UDHR in 1948 and the Geneva Conventions in 1949, followed in 1966 by the two international covenants. Nongovernmental organizations (NGOs) played a role in all these developments and in subsequent drafting of treaties, as well as in the creation of investigative and accountability procedures at the intergovernmental level and at the national level. These processes were instrumental in bringing down South African apartheid, transforming East-Central Europe, and restoring democracy in Latin America. Human rights NGOs are now active on all continents.
The Normative Content of Human Rights: The Right to Health
The current catalogue of human rights consists of some fifty normative propositions. They are enumerated in the international bill of human rights, extended by a score of specialized UN treaties, a half-dozen regional human rights treaties, and hundreds of international normative instruments in the fields of labor, refugees, armed conflict, and criminal law.
The meaning, scope, and practical significance of the right to health are particularly relevant for bioethics. The right to health as understood in international human rights law is defined in article 25 of the 1948 Universal Declaration of Human Rights ("Everyone has the right to a standard of living adequate for the health of himself and of his family, including food, clothing, housing and medical care and necessary social services.") and in article 12 of the 1966 International Covenant on Economic, Social and Cultural Rights (ICESCR) ("the right of everyone to the enjoyment of the highest attainable standard of physical and mental health"). Variations on these definitions are found in most of the core UN and regional human rights treaties. In 2000 the Committee on Economic, Social and Cultural Rights (CESCR), which was created to monitor the ICESCR, analyzed the normative content of the right to health in terms of availability, accessibility, appropriateness, and quality of care and specified the duties of the state to respect, protect, and provide this right. The committee also listed fourteen human rights as "integral components of the right to health." These related rights define to a large extent the determinants of health.
The right to health does not mean the right to be healthy, because being healthy is determined only in part by healthcare; it is also determined by genetic predisposition and social factors. The field of social epidemiology has excelled at establishing correlations between discrimination based on race, class, or gender, denial of education and of decent working conditions, as well as other factors that contribute directly to increased rates of mortality and morbidity. These social determinants may also be defined in human rights terms as deprivation of these health-related rights, which are among the most salient social factors that contribute to healthy lives. The summary below seeks to underscore the function of human rights as determinants of health by highlighting their normative content and their relation to health.
Health-Related Human Rights
Health is profoundly related to human rights both because human right violations have health impacts—such as those on torture survivors—and because human rights concern the dignity, integrity, autonomy of action, and conditions of social functioning of people. Some examples will be provided in each of these areas.
Foremost among the human rights relating to physical and mental integrity is the right not to be arbitrarily deprived of life, which does not rule out death resulting from lawful acts of warfare or capital punishment, although international humanitarian law limits the former, and newer protocols and regional conventions, supported by UN resolutions and social movements, define the latter as a violation of human rights. Special treaties and procedures exist for prevention and repression of torture, disappearance, summary and extrajudicial execution, crimes against humanity, genocide, slavery, racial discrimination, and various forms of terrorism. Most of these are also dealt with in international humanitarian law, which was established to protect victims of armed conflict (injured and shipwrecked combatants, prisoners of war, and civilian populations notably under occupation) and codified in the four Geneva Conventions of 1949 and the Additional Protocols of 1977.
The right to "a standard of living adequate for the health and well-being" of oneself and one's family was defined in the UDHR as including "food, clothing, housing and medical care and necessary social services" as well as "the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond [one's] control." Subsequently, the rights to health, work, safe and healthy working conditions (occupational health), adequate food and protection from malnutrition and famine, adequate housing, and social security (that is, a regime covering long-term disability, old age, unemployment, and other conditions) have been further elaborated by the International Labour Organisation, the UN Commission on Human Rights, and the work of special rapporteurs and treaty bodies.
Dignity tends to be mentioned as both the basis for all human rights and a right per se. The great civil liberties—freedom of oral and written expression, freedom of conscience, opinion, religion, or belief—as well as freedom from arbitrary detention or arrest, rights to a fair hearing and an effective remedy for violations of human rights, and protection of privacy in domicile and correspondence, all support the autonomy of individuals to act without interference from the state or others. A separate but related human right is that of informed consent to medical experimentation, which was included in post-1945 enumerations of rights because of the extensive abuse of that right during World War II.
Equality and nondiscrimination are human rights that are at the same time principles for the application of all other human rights, because they require that all persons be treated equally in the enjoyment of their human rights and that measures be taken to remove discriminatory practices on prohibited grounds. Freedom of movement means the right to reside where one pleases and to leave any country, including one's own, and to return to one's country. The right to seek and enjoy asylum from persecution is also a human right, which has been developed and expanded by international refugee law, the practice of the UN High Commissioner for Refugees, and recent codes relating to internally displaced persons. This right, like many others, is not absolute; limitations may be imposed, for example, in time of epidemic, as long as certain safeguards, defined in human rights law, are observed.
Social well-being depends in large measure on group identity, education, family, culture, political and cultural participation, gender and reproductive rights, scientific activity, the environment, and development, all of which are the subject of specific human rights. The basic human rights texts affirm a limited number of group rights, notably the rights of peoples to self-determination, that is in the terms of the ICCPR and the ICESCR, to "determine their political status and freely pursue their economic, social and cultural development" and to permanent sovereignty over natural resources. They also enumerate the rights of persons belonging to minorities to practice their religion, enjoy their culture, and use their language. Indigenous peoples have defined rights that take into account their culture and special relation to the land.
The right to education is defined in the ICESCR and by the CESCR, as well as specialized instruments of UNESCO. Other rights of the child have been codified in the 1989 Convention on the Rights of the Child. Political rights include the right to run for office and to vote in genuine and periodic elections. Cultural rights refer primarily to the right to participate in the cultural life of the community; the protection of writers, artists, and performers; and the preservation of cultural heritage.
Health issues loom large in human rights standardsetting and policy determination regarding gender and sexual and reproductive rights. The basic human rights texts have been supplemented by a specialized Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) of 1979. Considerable advances in mainstreaming women's rights as human rights were made at international conferences, a 1993 Declaration on Violence against Women, the work of a special rapporteur on this problem, and statements and programs on traditional practices harmful to health, such as female genital mutilation. Reproductive rights include the right of "men and women … to decide freely and responsibly on the number and spacing of their children" (CEDAW, article 16) and "to be informed and to have access to safe, effective, affordable and acceptable methods of family planning of their choice" (ICPD 1994). Various internationally approved programs and plans of action have set out in considerable detail the specific ways in which this right can be realized.
Bioethical concerns overlap with human rights with respect to the right to enjoy the benefits of scientific progress and rights in scientific research. The former refers to the positive and equitable use of scientific advances, while the latter protect freedom to conduct research and disseminate results and the requirement of informed consent of human subjects.
Occasionally, scholars refer to solidarity or thirdgeneration rights to certain global values such as peace, a healthy environment, development, communication, and humanitarian intervention or assistance. Two rights in this category have become more systematically developed and enshrined in authoritative texts: the rights to a healthy environment and to development. The former has been recognized in many national constitutions and in the regional human rights texts. The latter has been recognized in numerous UN resolutions and specifically in a 1986 declaration, as well as in the African Charter on Human and Peoples' Rights. The 1986 Declaration on the Right to Development defines the right to development as "an inalienable human right by virtue of which every human person and all peoples are entitled to participate in, contribute to, and enjoy economic, social, cultural and political development, in which all human rights and fundamental freedoms can be fully realized."
Finally, article 28 of the UDHR proclaims the right of everyone to "a social and international order in which the rights and freedoms set forth in this Declaration can be fully realized." This right is perhaps the broadest but also the most significant in making human rights the ordering criterion for national societies and international relations. The required social order suggests a democratic constitutional regime in which human rights of all categories are recognized in law and effectively observed in practice. It also suggests that international relations provide support for global efforts to further human rights and to establish means of accountability for persons and groups to obtain redress from countries that fail to fulfill their human rights obligations.
The Enforcement and Implementation of Human Rights
The term enforcement refers to coerced compliance, whereas implementation refers to supervision, monitoring, and the general effort to hold duty-holders accountable. Implementation is further subdivided into promotion—preventive measures to ensure respect for human rights in the future—and protection—responses to violations that have occurred in the past. The means and methods of implementation may be summarized in three forms of promotion and five forms of protection.
Promotion of human rights is achieved through developing awareness, standard-setting and interpretation, and creating national institutions. Awareness of human rights is a precondition to acting on them and is advanced though dissemination of knowledge and human rights education at all levels, for which the UN proclaimed a decade of action for the period from 1995 to 2004. Standard-setting means the drafting of human rights texts, for which the UN Commission on Human Rights, established in 1946, plays a central role, along with other UN and regional organizations. These norms are interpreted by various international courts and treaty-monitoring bodies. The third preventive or promotional means of implementation is national institution-building, which includes improvements in the judiciary and law enforcement institutions and the creation of specialized bodies such as national commissions for human rights and offices of an ombudsman.
The protection of human rights involves a complex web of national and international mechanisms to monitor, judge, denounce, and coerce states, as well as to provide relief to victims. Monitoring compliance with international standards is carried out through the reporting and complaints procedures of the UN treaty bodies and regional human rights commissions and courts. Special procedures of working groups and special rapporteurs study countries or issues, taking on cases of alleged violations, reporting back on their findings, and requesting redress from governments. Among the thematic rapporteurs, one is specifically mandated to study the right to health, and others deal with a variety of health-related issues. The second means of protection is adjudication of cases by fully empowered human rights courts, the main ones being the European Court of Human Rights of the Council of Europe, the American Court of Human Rights of the Organization of American States (OAS), and the African Union's African Court of Human and Peoples' Rights, which was not yet functioning in mid-2003.
Political supervision refers to resolutions judging the policies and practices of states adopted by the Commission on Human Rights, the UN General Assembly, the Committee of Ministers of the Council of Europe, the Assembly of OAS, and other political bodies that denounce governments for violations of human rights and demand that they redress the situation or provide compensation to the victims.
The use of coercion is available only to the UN Security Council, which can use its powers under Chapter VII of the UN Charter to impose sanctions, cut off communications, create ad hoc criminal tribunals, and authorize the use of force by member states or the deployment of UN troops to put an end to a threat to international peace and security, which it has on occasion interpreted to include human rights violations (e.g., Haiti, Somalia, Bosnia, Iraq). This forceful means of protecting human rights is complex and dangerous and can have harmful health consequences, as has been the case with sanctions imposed on Haiti and Iraq. If used properly it can be a modern and legitimate form of the nineteenth-century doctrine of humanitarian intervention, according to which states use armed force to halt atrocities committed in another state while respecting the principles of necessity, proportionality, disinterestedness, and collegiality. The North Atlantic Treaty Organization (NATO) sought to employ such a doctrine in Kosovo in 1999 but without the necessary authorization from the Security Council engaged in what most scholars consider a legitimate but illegal use of force. Each case of action (e.g., no-fly zones over Iraq imposed in 1991) or inaction (e.g., Rwanda in 1994) regarding the use of armed force for human rights purposes has complex ethical and legal difficulties.
The final means of responding to human rights violations is through humanitarian relief or assistance. Provision of food, blankets, tents, medical and sanitary assistance, and other forms of aid saves lives and improves the health of persons forcibly displaced often as a result of large-scale human rights violations. Refugees and internally displaced persons come under the protection of the UN High Commissioner for Refugees (UNHCR), which deploys massive amounts of aid, along with the International Committee of the Red Cross, UNICEF, World Food Program (WFP), United Nations Development Programme (UNDP), the UN Office for the Coordination of Humanitarian Affairs, and other agencies, as well as major NGOs such as Oxfam International, CARE, and the International Rescue Committee.
Every country in the world has accepted that human rights are universal, but all are challenged, in one way or another, to achieve progress with respect to those rights they neglect, however proud they may be of achievements with respect to other rights. Thus Cuba may be rightfully proud of its record on rights to health and education but is challenged to do more for political and civil rights; the United States may pride itself on the degree to which freedom of expression or civil rights are guaranteed but is challenged to take seriously economic, social, and cultural rights, including universal access to healthcare. The normative content of the corpus of human rights standards is probably the most complete catalogue of the determinants of physical, mental, and social well-being. The methods of implementation or intervention to ensure compliance are not directly linked to medical and health practice or to health policy, as is the case with bioethics. They nevertheless constitute a potentially rich framework for the improvement of health policy and practice, which is the objective of the emerging subfield of health and human rights.
stephen p. marks
SEE ALSO: Death Penalty; Ethics: Normative Ethical Theories; Genetic Discrimination; Harm; Human Nature; Justice; Law and Bioethics; Law and Morality; Natural Law; Pain and Suffering; Reproductive Technologies; Warfare; Women, Historical and Cultural Perspectives
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The core conception underlying human rights rests on the following premises: (1) all humans have equal rights that derive from the dignity and inherent worth of every person; (2) all humans have rights to freedom and development; (3) the advance of human rights is inherent in the pursuit of world peace, social justice, democracy, and the rule of law; (4) vulnerable groups need special protections; (5) cultural diversity and pluralism affirm persons’ identities; and (6) human rights must be linked with the promotion of sustainable communities and environments. This conception has formally evolved within the international framework of the United Nations, as well as the United Nations’ specialized agencies—the International Labour Organization (ILO) and the United Nations Educational, Scientific, and Cultural Organization (UNESCO). Still, the roots of this conception are everywhere evident, in communities, in peoples’ movements, and increasingly in state constitutions (for summaries see Howard 1995; An-Na’im 2002; Orend 2002; Felice 2003).
The international response to the Holocaust at the end of World War II (1939–1945) was swift and decisive, specifically, the founding of the United Nations in 1945, which in turn paved the way for the formal elaboration of human rights in terms of two distinct but related frameworks (Moore and Pubantz 2006). One framework deals with the most egregious violations, namely, humanitarian law, embodied in the 1949 Geneva Convention on the Prevention and Punishment of the Crime of Genocide, and subsequently in various treaties and statutes, including the 1998 statute that established the International Criminal Court (ICC), which tries individuals who commit crimes against humanity (Robertson 1999).
The second framework deals with fundamental human rights, initially enshrined in the 1948 Universal Declaration of Human Rights (UDHR). This document is extraordinary for many reasons, not the least of which is that it has been affirmed by all of the nearly two hundred member states of the United Nations. (The UDHR does not have treaty status, and therefore is not enforceable.) The philosophical premise, as stated in Article 1, is that “all human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood.” The UDHR encompasses three main sorts of rights: (1) political and civil rights that historically evolved in Great Britain, Europe, and the United States; (2) socioeconomic rights and security rights, specifically those rights people have by virtue of being human, such as the right to a job, community and family, food, security, housing, and education; and (3) the rights of vulnerable persons and minority populations.
Subsequently, international treaties have been enacted that are designed to assist nation-states in advancing human rights. These treaties are:
International Covenant on Civil and Political Rights
International Covenant on Economic, Social, and Cultural Rights
Convention on the Elimination of All Forms of Discrimination Against Women
International Convention on the Elimination of All Forms of Racial Discrimination
International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families
Convention on the Rights of the Child
Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment
Additionally, the United Nations has promulgated other declarations and charters (without treaty status) dealing with human rights, some of which concern specific groups, such as indigenous peoples, the mentally disabled, and many others. The ILO and UNESCO also have standards for human rights in areas in which they have expertise and authority.
Human rights take on new significance in an increasingly interconnected world in which the gaps in human welfare are widening and all humans are at increased risk owing to the proliferation of weapons, terrorism, and the deterioration of natural habitats (Singer 2004). Just as multinationals acquired the capacities in the 1980s to move their operations everywhere around the globe to find the cheapest labor (Amin 1997), the policies of the World Bank and the International Monetary Fund put the populations of many poor countries at risk (UNDP 2004). Aggravating these material inequalities, the world’s “haves” are largely white, whereas the world’s “have-nots” are largely non-white.
Another aspect of global interconnectedness is that declines in some national economies have spurred high rates of migration, while affluent countries have increasingly barred migrants’ entry. Furthermore, the rate of decline of the planet’s environment, climate, and biodiversity has accelerated. A sustainable habitat is also a basic human right, but environmental degradation, climate change, hazardous wastes, pesticides, and toxic products all threaten sustainability. On the positive side, the advance of communications has expanded peoples’ own connectedness, which has fostered remarkable cooperation around shared objectives, such as poverty reduction.
As already implied, human rights are more than formal agreements. They rest on a set of ideals and values. All religious traditions, from the ancient Hindu Upanishads to contemporary religions, have emphasized the importance of duties and obligations, and continue to play an ongoing role in human rights, as do currents in philosophy and ethics (Lauren 2003). The U.S. civil rights movement and other social movements, such as those for gender equality, have played key roles in shaping peoples’ conscience about equality of rights. Liberation struggles against colonial oppressors have also reshaped conscience. The Martinican-born political theorist Frantz Fanon (1925–1961) powerfully captures this in The Wretched of the Earth : “Independence is … an indispensable condition for the existence of men and women who are truly liberated, in other words who are truly masters of all the material means which make possible the radical transformation of society” (1963, p. 310).
The advance of human rights is a vision that is increasingly shared by advocates for justice as well as by development specialists, and this is possible because people at the grassroots, community level have been increasingly successful in generating the infrastructures for local nongovernmental organizations (NGOs) that, in turn, form coalitions with international NGOs. In important ways, these relationships have fundamentally transformed development projects, from a top-down approach to complex, collaborative approaches. These coalitions are able to leverage governmental reforms, and sometimes can gain major concessions from local private-sector firms. For example, the French NGO, Dignity International, collaborates with the Nairobi Hakijamii Centre for Economic and Social Rights to reduce poverty in Kenya, and this partnership also has developed models for development that it uses in international education.
Many NGOs already have consultative status with the United Nations, and such relationships are growing and intensifying as the United Nations has embarked on a new and expansive agenda to partner with these organizations, as well as local and state governments and private-sector organizations. The objective is to create layers of engagement, including grassroots engagement, to promote development, human rights, and peace and to stem the causes of human and environmental degradation (Annan 2005). A few examples of NGOs are: Global Rights; the Center for Economic and Social Rights (CESR); Choike-Latin America; Third World Network; and Amnesty International. Very often these NGOs function more as the conduits of expansive networks rather than as single-site organizations. The NGOs that work with the United Nations are also involved in the global World Social Forum, which is an amalgam of a peoples’ social movement, an NGO, and a network of NGOs.
Recent interest centers on the importance of direct, participatory democracy as both a vehicle for governance and an expression of human rights (Beetham 1999; Green 1999). New electronic technologies make it possible for members of a community to participate in democratic self-governance, and the initial pilot projects have been remarkably successful (MacLean 2004). Another approach is based on the idea that credit is a human right. Bangladeshi economist Muhammad Yunus established the nonprofit Grameen Bank in 1976 to give microloans to the very poor in third world countries (Chowdhury 2001). By 2005 Grameen Bank had given out $4,896 million in loans, primarily to women, to start their own businesses. The repayment rate was a remarkable 98 percent. Microloans are not structural solutions for solving poverty, but nevertheless they help to transform the lives of poor women and indirectly benefit their communities.
THE UNITED STATES AND HUMAN RIGHTS
In spite of the great progress that has been made since the initial formalization of the principles of human rights in 1948, there are serious obstacles. A major one has to do with worldwide inequalities of resources, which can be traced to the long-term effects of colonialism, ongoing exploitation by multinationals, and authoritarian governments. Some states are too poor to implement human rights programs, and, besides, many poor states have not yet attained the kind of stable government structures that give people a voice to make demands for their rights. Yet, paradoxically, the world’s most powerful and richest nation, the United States, has been one of the world’s worst partners in the international human rights community.
The United States has remained on the margins of the world’s human rights community. For example, it rejects the idea that socioeconomic security and cultural identity are human rights. In part, this grows out of ideological conflicts during the cold war; but it is also pragmatic, consistent with U.S. geopolitical ambitions (Tabb 2002). Another explanation is that human rights are not in synch with American values that stress competitive individualism (Blau and Moncada 2005). Indeed, the U.S. Constitution is one of the few in the world today that does not include provisions for socioeconomic rights (Blau and Moncada 2006). In addition, the world’s richest nation does not support various treaties to slow the rate of environmental degradation and climate change (Low 1999; Kaul et al. 2003). The United States is one of only a few countries not party to the ICC and during the Iraq War violated the terms of the Geneva Convention, which it has ratified (Hooks and Mosher 2005).
Still, worldwide, the momentum of the human rights revolution has accelerated, possibly because of developments in communications and because of the increasingly grave conditions threatening humans and their habitats. The goal, as often stressed by UNESCO, is “to build peace in the minds of people,” which resonates with the motto of the World Social Forum: “A Better World Is Possible.”
Leading international human rights organizations, such as Amnesty International and Human Rights Watch, have been on the front lines defending peoples’ rights against brutal oppressors and inhuman acts of violence. The very complex and challenging tasks involving securing positive rights, such as the right to a decent job, housing, food, health care, and the rights to a culture and to identity require social movements, the engagement of activists, and immense efforts by people in their work-places and communities. People of color in the United States and elsewhere have played leading roles in such challenging tasks, including roles in the Civil Rights Movement, South Africa’s anti-Apartheid struggle, the Zapatista Movement, the Brazilian Landless Movement, and the Malawian shaming campaign against neoliberal policies and foreign investors. In the United States it is significant that an African American, Gay McDougall, executive director of a leading human rights organization, Global Rights, was appointed to serve as UN independent expert on minority issues.
SEE ALSO Civil Rights; Genocide; Natural Rights; Needs, Basic; United Nations
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The subject of this article is the international concern with human rights. The article cannot, however, concentrate exclusively on the activities of international organizations and on conferences which purport to promote respect for human rights. The instruments, institutions, and operations of the international organizations of our day have roots in the philosophical, constitutional, and legal developments of many nations spread over many centuries. The work on the international plane has in its turn had considerable influence on constitutional, legal, and political developments within nation-states, not least on the written law of many of the states of Asia, Africa, and the Caribbean which have recently acceded to independence.
The expression “human rights,” as a term of art, is of recent origin. Even in its French-inspired form “rights of man” (droits de I’homme), it goes back only to the last decades of the eighteenth century. The idea, however, of the law, or the lawgiver, defining and protecting the legal rights of men— mainly the mutual rights of the members of the community—is very old indeed. It would, perhaps, be somewhat farfetched to look for elements of the protection of human rights in the Code of the Babylonian king Hammurabi (about 2130 to 2088 B.C.), the most ancient code of law at present known. The sanctions which it provides in trying to protect worthy human-rights objectives (such as the administration of justice, marriage, and the family) are so disproportionately cruel that it is preferable to disregard this legislator in our context. However, as Rudolph von Jhering pointed out a century ago, the law of ancient republican Rome guaranteed to the Roman citizen (not to the foreigner or to the slave) the right to take part in the government of his country by participating in the exercise of the power of legislation, in the administration of criminal justice, in electing public officials, and even in having a share in the police power (Jhering 1852-1878).
An eminent American scholar has said (Yntema 1958) that the concepts of the Roman civil law, which were formulated by the Roman juridical genius in order to render justice in the mutual relations of individual men, are in essence a practical definition of the rights of man and a reasonable and authoritative criterion to which those who seek justice and protection of the inherent dignity of the human person can appeal. This holds true, in Yntema’s view, of the Roman law as it was applied on the continent of Europe and of the common law of the Anglo-Saxon countries. The common law and the civil law, so different in their institutions and techniques and, at the same time, so similar in their criteria of what is fair, offer an objective yardstick for judging conduct in terms of individual rights and freedoms. These systems have, of course, also tolerated institutions and practices which are inconsistent with the modern conception of a public order protecting human dignity. Nevertheless, through many centuries communities have existed where at least part of what are now considered to be fundamental human rights were well protected by elaborate and refined bodies of law.
In England of the seventeenth century battles were fought against the nonobservance of the ancient rights of Englishmen. Out of these struggles there came two great documents: the Petition of Right of 1628 and the Bill of Rights of 1689. These did not purport to define the basic human rights of all mankind. They were intended to give relief for specific grievances by limiting the power of the king and by strengthening the power of Parliament and of the courts. Their ideas and even their texts are, however, reflected in the work of the American and French revolutionaries of the eighteenth century: in the immortal passages of the American Declaration of Independence, in the Virginia bill of rights of 1776, in the French Declaration of the Rights of Man and of the Citizen, and in the American bill of rights.
In the course of the nineteenth and twentieth centuries, the example set by the United States and France of adopting bills of rights or otherwise embodying such rights in their constitutions, was followed on the entire continent of Europe, and the movement spread to the Americas, Asia, and Africa, but until very recently Britain and the British dominions and possessions remained aloof from this movement.
The Russian Revolution of 1917, while following the American-French precedent in the form of its pronouncements, gave it a fundamentally different substance. The difference lies not in the emphasis on economic and social rights in addition to the traditional political and civil rights. Such provisions are also found in other constitutions, for example, in the Mexican constitution of 1917, in the Weimar constitution of Germany of 1919, and in the constitution of the Republic of Spain of 1931. The difference between the Soviet pronouncements and their Western predecessors lies in the complete transformation of the meaning of political and civil rights.
This basic difference in concepts becomes clear when one compares the provisions of the American bill of rights with the corresponding provisions of the first Soviet constitution. The first amendment to the American constitution provides, among other things, that Congress shall make no law abridging the freedom of speech or of the press; the Russian constitution of 1918 “for the purpose of securing freedom of expression to the toiling masses,” abolishes all dependence of the press upon capital, and turns over to the working people and the poorest peasantry “all technical and material means for the publication of newspapers, pamphlets, books,” etc. The American constitution prohibits abridgment of the right of the people peaceably to assemble, while the Lenin constitution, in order to ensure complete freedom of assembly to the working class and to the poorest peasantry, offers “all premises convenient for public gatherings together with lighting, heating, and furniture.”
The Soviet constitution of 1936, while changing the wording, has, by and large, maintained this general approach. The Western constitutional ideas were designed to prevent interference with fundamental rights mainly, though not exclusively, by the public authorities. The Soviet concept does not treat of this aspect at all. It promises to make available technical facilities; it does not promise freedom in the choice of the purposes for which they will be used. In trying to draw conclusions from the existence in so many legal systems of catalogues of rights, one must keep in mind these differences in the basic concepts.
Attempts to seek a foundation for the rights of the individual in the law of nations go back to an early stage in the history of international law. The work of the Spanish theologian-lawyer Francisco de Vitoria—born 1480, died 1546—is perhaps the first attempt to use legal reasoning, moral principle, and political courage in support of a cause which we might consider as involving human rights as well as international law. He lectured about “the Indians recently discovered” and pleaded for their rights vis-a-vis the Spanish conquerors. The greatest figures in the literature of international law in the seventeenth and eighteenth centuries exercised a powerful influence on the growth of the concept of the inalienable rights of man. In 1950 Sir Hersch Lauterpacht characterized the close connection between human rights and international law by saying that “the law of nations, in itself conceivable only as being above the legal order of sovereign States, is not only a law governing their mutual relations but is also, upon final analysis, the universal law of humanity in which the individual human being as the ultimate unit of all law rises sovereign over the limited province of the State” (p. 120).
In the field of action, as distinct from scholarship, the international concern with human rights has manifested itself in two different ways: by so-called “humanitarian intervention” and by the adoption of international treaties.
In traditional international law it was assumed that a state had the authority to treat its own nationals as it saw fit. When, however, the ill-treatment by a state of its own population was of such an intensity that it shocked the conscience of mankind, other states, usually the great powers of the period, took it upon themselves to threaten, or even to use, force in order to come to the rescue of the oppressed population. While resort to this type of action was not infrequent, the doctrine underlying it has never become a generally recognized part of international law because of the abuse inherent in the concept of “humanitarian intervention.”
The protection of oppressed or endangered groups by international treaty started in the seventeenth and eighteenth centuries in matters of religious liberty. In the course of the nineteenth century the international treaty was used also to protect ethnic and racial groups and to combat the slave trade and slavery; in the twentieth century it has been used to improve labor conditions, to arrange for the supervision of the administration of mandated territories, and to provide under the supervision of the League of Nations for certain rights of racial, religious, or linguistic minorities in a number of states, mainly in central and eastern Europe.
The United Nations and human rights
Not until the world had passed through the tragic events of World War II and had witnessed the barbarous acts committed by the totalitarian regimes of that period was the universal organization of the international community, the United Nations, charged with some responsibilities in the matter of human rights, and its members pledged themselves to take action for the achievement of universal respect for and observance of human rights and fundamental freedoms for all.
The San Francisco Charter of 1945 through which the peoples of the United Nations reaffirmed their faith in “fundamental human rights” did not define these rights. The charter has made it abundantly clear, however, that one particular activity at least is repugnant to it: discrimination on the grounds of race, sex, language, or religion.
Nor has the charter established specific international machinery for the enforcement of its human-rights provisions, except for arrangements under the trusteeship system. But it has created organs of general and wide competence—the general Assembly, the Security Council, and the Economic and Social Council—and it has laid the foundations for the establishment of an unlimited number of subsidiary bodies, including commissions in the field of human rights.
The General Assembly, and to some extent also the Economic and Social Council, have not hesitated to use their general powers of investigation and recommendation to take action of varying character and intensity in such situations as violations of religious or political freedom in eastern Europe, race conflict in South Africa, forced labor in various parts of the world, infringement of trade union freedom, practices violating the human dignity of women in less developed communities, the status of Buddhists in South Vietnam, and many others. The fight against colonialism has been one of the characteristics of the international scene in the post-World War II world. Rightly or wrongly, the majority of governments have, to a large extent, identified the struggle against colonial domination with the struggle for human rights.
International bill of rights
Since the United Nations Charter had not defined human rights and had not created special international institutions for their enforcement, it was widely assumed in 1945 that this would soon be done in an “International bill of rights.” In 1947-1948 it was decided that this “bill” would consist of two or more documents: a declaration, a covenant, and “measures of implementation.” In 1948 the General Assembly proclaimed in a resolution the first part of this bill of rights as the Universal Declaration of Human Rights. The drafting of the other parts of the bill has not yet been completed; according to later decisions, they are to consist of two covenants, one on civil and political rights, the other on economic, social, and cultural rights, with provision for international supervision of their implementation. (By the end of 1963 all the general and substantive provisions of the two covenants had been approved on the General Assembly level, while—as of 1965 —the international procedural arrangements have still to be agreed upon.)
The declaration of 1948 is the only world-wide official document where the human rights of which the charter speaks are set forth. Its range is very wide. It proclaims not only the traditional political and civil rights and freedoms of its national predecessors but also “economic, social and cultural rights.” The declaration has, to some extent, filled the gap created by the delay in completing the covenants and acquired a status different from and more important than the one which was originally intended for it. It has been used by the United Nations, by other international organizations and conferences, and by governments as a yardstick to measure the compliance by governments with the obligations deriving from the charter in matters of human rights. It has penetrated into international conventions, national constitutions, and legislation, and even, in isolated cases, into court proceedings.
The technique of developing international standards by proclaiming instruments of the declaration type has been frequently used, the most potent post-1948 example being the Declaration on the Granting of Independence to Colonial Countries and Peoples, of 1960. Additional human-rights declarations were also adopted: the Declaration of the Rights of the Child, in 1959, and the United Nations Declaration on the Elimination of All Forms of Racial Discrimination, in 1963. In other fields examples are the declarations on Permanent Sovereignty Over Natural Resources, 1962, and on Legal Principles Governing the Activities of States in the Exploration and Use of Outer Space, 1963. Many more are in various stages of drafting and preparation.
Conventions on specific human-rights subjects
While the work of drafting the comprehensive covenants on human rights has been going on, the United Nations and its specialized agencies have produced a considerable body of treaty law on the subject of human rights by adopting and putting into force conventions on more limited subjects. Important examples are the Freedom of Association and Protection of the Right to Organize Convention, 1948; the Genocide Convention, 1948; the Convention on the Political Rights of Women, 1952; the Conventions on the Status of Refugees, 1951, and of Stateless Persons, 1954; the Conventions on the Reduction of Statelessness, 1961, and on the Nationality of Married Women, 1957; the Supplementary Convention on the Abolition of Slavery, 1956, and the Convention on the Abolition of Forced Labor, 1957; the Discrimination (Employment and Occupation) Convention, 1958, and the Convention against Discrimination in Education, I960; the Convention on Consent to Marriage, Minimum Age for Marriage and Registration of Marriages, 1962; and the International Convention on the Elimination of All Forms of Racial Discrimination, 1965.
In the years during which the United Nations has been slowly working its way toward the completion of the world-wide covenants, much more rapid progress was achieved in western Europe. Under the auspices of the Council of Europe, the European Convention of Human Rights of 1950 came into being, supplemented by protocols of 1952 and 1963 and by the European Social Charter of 1961. By the convention, the 15 European states which are parties to it have undertaken to secure to everyone within their jurisdiction the rights which it defines—most of the traditional political and civil rights. The convention established two new organs to ensure the observance of the engagements undertaken by the parties: the European Commission on Human Rights and the European Court of Human Rights.
The existence of the court is significant primarily as a symbol. Its jurisdiction is very narrowly circumscribed. It was established in 1959, and by the beginning of 1965 only two cases had gone before it. The commission, however, has played an important and effective part. Ten of the European states (not including the United Kingdom and France, the latter not being a party to the convention at all) have accepted the right of individuals to petition the commission and to claim to be the victims of a violation of the convention by one of the parties. It has been the commission’s examination of petitions, and especially the examination of their admissibility, which offered the commission the opportunity to build up an impressive body of case law. And although in the over whelming majority of cases the commission has had to reject the petition, its work has transformed the abstract idea of the international protection of human rights into a concrete, tangible, day-to-day task. This operation has laid bare the formidable problems and pitfalls inherent in so novel an experiment.
For many years, the Organization of American States has tried to establish inter-American institutions for the promotion of respect for human rights. In 1948 the “American Declaration of the Rights and Duties of Man” was proclaimed at Bogota; conventions on political and civil rights of women and on territorial and diplomatic asylum were signed in 1948 and 1954 respectively. An Inter-American Convention on Human Rights providing for the establishment of a commission and a court of human rights, on the European model, was drafted by the Inter-American Council of Jurists in 1959. At the beginning of 1965 final action on the draft had not yet been taken by the political organs.
Program of practical action
The effectiveness and desirability of the international treaty as an instrument for the promotion of human rights was challenged early in the history of the United Nations. The most weighty challenge came in 1953 when U.S. Secretary of State John Foster Dulles stated that the new Eisenhower administration did not believe in “treaty coercion” and did not favor “formal undertakings” as the proper and most effective way to achieve throughout the world the goals of human liberty. As a consequence the United States declared its intention not to become a party to any covenant on human rights or to sign human-rights conventions of a more limited scope. As we have seen, the majority of governments has continued to hold that multilateral conventions have their place among the endeavors to give effect to the human-rights provisions of the charter. Those governments consented, however, to a new program proposed by the United States, provided it was adopted in addition to treaties and not instead of them.
Thus, in 1955-1956 the United Nations started a series of new activities: (1) periodic (triennial) reporting by states on developments; (2) studies of specific rights or groups of rights; and (3) advisory services in the field of human rights. A great number of governments have participated in the reporting procedure in the first three triennial cycles; the Commission on Human Rights has, however, not yet arrived at a final policy about the use to be made of the reports. The first of the studies was a world-wide inquiry and investigation into the status of the right to be free from arbitrary arrest, detention, and exile. The most fruitful branch of the program of advisory services has been the convening of mostly regional conferences (called seminars) to exchange views and experiences on important and topical problems, such as the protection of human rights in criminal law and procedure, the role of the police in the protection of human rights, or the status of women in family law. It was a series of seminars on judicial and other remedies against the illegal exercise or abuse of administrative authority which made the institution of the “ombudsman” known outside the Scandinavian countries and led to its acceptance in at least two other countries (England and New Zealand) and to its consideration elsewhere (Canada and some United States jurisdictions). One such regional conference, held in Kabul, Afghanistan, in 1964, was devoted to “human rights in developing countries,” a basic problem which deserves more detailed discussion (Seminar …1964).
Observance of human rights poses problems everywhere, and no country’s record, be it highly industrialized or economically underdeveloped, is faultless. In most of the countries which have acceded to independence only recently the problems are aggravated. Many of these countries have implacable enemies: poverty, ignorance, disease, and inertia. Western commentators have tended to underestimate the importance of illiteracy and ignorance, particularly in unsophisticated rural societies (De Smith 1964, p. 237). At the Kabul conference it was agreed that there could be no meaningful exercise of many human rights in a country where economic resources were scarce and the bulk of the population lived on the margin of subsistence. It was argued that in such matters as the development of the whole economy and the improvement of health, education, and housing, the state needed the necessary powers to implement its plans even though, meanwhile, the rights of individuals or groups might be temporarily curtailed. Some speakers wondered, however, whether the governments of some developing countries did not show an excessive concern for the internal and external security of the state and apply unnecessary restrictions on human rights.
Developing countries experience difficulties not only in regard to economic and social rights, the enjoyment of which clearly presupposes a certain economic standard, but also in regard to the “classical” civil and political rights. A basic prerequisite of the right to a fair trial is the existence of an adequate number of well-trained lawyers, and “crash programs” for their training were recommended at the Kabul conference. The scarcity of competent and efficient public officials is also an obstacle to progress in the human-rights field. An other specific problem of the underdeveloped world arises in the very sensitive area of “labor mobili zation.” In some countries, it was alleged at the conference, it is not yet possible to rely exclusively upon systems of voluntary labor to satisfy the basic needs of the nation. Recourse has sometimes to be had to certain forms of labor mobilization involving the compulsory removal of people to areas other than those of their residences. It was claimed, however, that such national labor services should be distinguished from the practices of forced labor which were forbidden by international conventions (see also Cowen 1964).
Neither the human-rights provisions of the United Nations Charter and the Universal Declaration of Human Rights nor the other treaties and declarations mentioned above have brought about the millennium. It is therefore not the purpose of this article to convey the idea that the rights set forth in these instruments are, in fact, respected and observed throughout the world. In 1952, in 1957, and, again, in 1962 the General Assembly of the United Nations reiterated that notwithstanding the obligations arising from the charter and notwith standing the Universal Declaration of Human Rights, violations of human rights continue to occur in various parts of the world, and that notwith standing some progress the situation in many parts of the world was unsatisfactory.
The task of making the protection of human rights general, permanent, and effective still lies ahead. This should not lead us, however, to belittle the progress that has been achieved on the international and national levels since World War II. Whatever the technical position might be in particular instances, and however difficult it might often be to achieve redress through international or national remedies, the traditional concept, that the way a state treats those subject to its power and jurisdiction is within its unfettered discretion, is a thing of the past. A vast but asymmetrical structure of international obligations has been built, some vague, some precise; and injunctions and exhortations have been issued, some authoritative, others less so. The fate of the individual may still in fact be at the mercy of his state, but it is also a matter of continuing and increasing international concern.
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U.S. congress, senate, committee on foreign relations 1955 Review of the United Nations Charter: A Collection of Documents. 83rd Congress, 2d Session. Senate Document No. 87. Washington: Government Printing Office. → See especially pages 263 and 295.
Vasak, Karel 1964 La convention europeenne des droits de I’homme. Paris: Librairie Generale de Droit et de Jurisprudence.
Yearbook on Human Rights. → Published by the United Nations since 1946.
Yearbook of the European Convention on Human Rights— The European Commission and European Court of Human Rights. → Published since 1955. From 1955-1957 published as Documents and Decisions of the European Commission of Human Rights, prepared by the Directorate of Human Rights of the Council of Europe.
Yntema, Hessel E. 1958 Le droit compare et 1’human-isme. Revue international de droit compare 10:693–700.
Human rights can mean different things to different people, but perhaps the best way of defining human rights is to refer to the body of international human rights law that has come into being over the past five decades. Today, there are literally thousands of ratifications to dozens of human rights treaties—coming out of every region of the world. Solemn declarations by political leaders and others reinforce this international legal regime, and there are numerous institutions that have been created to oversee its implementation. The most broadly based treaties are the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social, and Cultural Rights—each of which has been ratified by approximately 150 countries. Regional human rights systems exist in Europe, Africa, and the Americas. Other more specialized treaties deal with human rights violations that center on racial discrimination, women, children, migrant workers, torture, minorities, and labor rights.
The United Nations (UN) Convention on the Prevention and Punishment of the Crime of Genocide (Genocide Convention) was adopted by the UN General Assembly on December 9, 1948, a day before its seminal adoption of the Universal Declaration of Human Rights. The Genocide Convention might be thought of as the first contemporary "human rights" convention, although earlier international treaties addressed concerns such as the slave trade, trafficking in women, and workers' rights.
Genocide is a particular form of mass killing, and it may be the ultimate human rights violation, since it is directed not only against individuals but against the communities to which those individuals belong. In addition, the Genocide Convention codified genocide as an international crime, and placed international legal obligations on states to prevent and punish that crime. This dual character—as human rights violation and international crime—renders genocide almost unique; only the international treatment of the crime of torture, which came about much later, is similar.
The Human Rights Content of the Genocide Convention
The Genocide Convention deals only with the most serious kinds of human rights violations, although its adoption in 1948 was a landmark in the evolution of protection for human rights. Today, however, conduct outlawed by the Genocide Convention is also effectively prohibited under later treaties, which do not contain the unique requirement of intent that characterizes the crime of genocide in the Genocide Convention. Thus, genocide would be prohibited today under international human rights law, even if the Genocide Convention did not exist.
The parallels between human rights as articulated in the Genocide Convention and more contemporary definitions of human rights are clear. As defined in Article 2 of the Genocide Convention, the crime of genocide takes in:
- "killing," which would be defined in human rights language as violation of the right to life
- "causing serious bodily or mental harm," which violates security of person and is also likely to constitute torture or inhuman or degrading treatment
- "inflicting on the group conditions of life calculated to bring about its physical destruction," which also constitutes arbitrary deprivation of life
- "preventing births within the group," which interferes with the rights to privacy and family
- "forcibly transferring children of the group to another group," which violates the rights to privacy and family, as well as the rights of the child
The right to life is obviously fundamental to all other human rights. At the same time, however, it is not an absolute concept, and it is only the "arbitrary" deprivation of life that is prohibited in the convention. For example, it is possible to imagine circumstances in which a state's killing of a person would be both morally and legally permissible, and some human rights treaties carefully codify such exceptions. Under Article 2 of the European Convention on Human Rights, for example, a government may execute a duly convicted prisoner (although a later amendment to this convention abolishes capital punishment). In addition, deadly force may be used if it is "absolutely necessary" to protect a person from unlawful violence, to effect a lawful arrest or prevent the escape of a lawfully held prisoner, or to quell a riot. Other treaties, such as the International Covenant on Civil and Political Rights (Civil and Political Covenant), simply prohibit arbitrary killing, implying that there are some circumstances in which the use of deadly force may not be arbitrary and therefore may be justifiable.
There are many difficult concepts that lie at the edges of international formulations of the right to life: Does the right to life imply interventionist duties on the part of the state? Does the right to life affect the issues of abortion or suicide? Is capital punishment always prohibited? Under what specific conditions is the use of deadly force by law enforcement officials permissible? The provision (pertaining to the right to life) in the Genocide Convention, on the other hand, is relatively clear: Killing members of a group identified in the convention is prohibited. Because genocide, as formulated in the convention, also requires an "intent to destroy," genocidal killings are by definition committed deliberately, and attempts to destroy a group and its members cannot be justified under any of the exemptions from the crime of genocide enunciated in other treaties. Indeed, Article 6.3 of the Civil and Political Covenant specifically provides that the covenant cannot be interpreted as taking away from or lessening in any way the obligations that states have assumed under the Genocide Convention.
Imposing "conditions of life" calculated to destroy a group also constitutes an arbitrary deprivation of life, even if that imposition is accomplished in an indirect manner. Deliberately starving a population or infecting it with a fatal disease violates international human rights norms; when these deeds are carried out for the purpose of destroying a group protected under the Genocide Convention, in whole or in part, they also constitute genocide.
"Security of person" protects individuals from treatment that might seriously injure them but not cause death. Such treatment is prohibited, whether it occurs while a person is in custody or under any other circumstances. Accordingly, all persons held in prisons or other detention facilities should be treated with respect, whether they have been convicted of a crime or only accused of one.
Domestic law (in many nations) usually prohibits the physical ill-treatment of any persons by government officials, and violation of this prohibition may result in compensation being paid to the victim or to dismissal of criminal charges. The international standard is not as all-encompassing, however, and the usual formulation prohibits only those acts that constitute "torture or inhuman or degrading treatment or punishment." There have been many attempts to shed light on these phrases in court cases, but there is no doubt that the "serious bodily or mental harm" that is prohibited under the Genocide Convention would be included within this broader international prohibition against ill-treatment.
"Rights to family and privacy" are also part of international human rights law, even though they may not be specifically protected under all domestic legal systems. The Civil and Political Covenant refers to the family as "the natural and fundamental group unit of society" and recognizes the right to marry and to found a family. Similar provisions may be found in the African, American, and European human rights conventions. The right to found or raise a family obviously includes the right to have children, and attempting to prevent births against the wishes of the parents would clearly violate international human rights norms.
The right to privacy is specifically articulated in many human rights treaties. It has a public sphere, wherein one's honor and reputation should be protected from the libelous or slanderous statements or actions of others, and a private sphere, which would entail noninterference by government in such matters as lifestyle and the decision to have children. As is the case with other human rights, however, the right to privacy may be restricted to accommodate other legitimate concerns of citizenries; only "arbitrary or unlawful" interference with privacy is prohibited under the Civil and Political Covenant. The regional human rights treaties are more specific, permitting the placement of restrictions on the right to privacy when those restrictions are necessary to protect, for example, national security, public safety, public health, public morals, or the rights and freedoms of others. It is inconceivable that attempts to prevent births within a national, ethnical, racial, or religious group (as prohibited by the Genocide Convention) would fall within one of these permitted restrictions.
The "rights of the child" are referred to in general terms in all of the major human rights treaties. More important, they are now guaranteed by the International Convention on the Rights of the Child (Child Convention), which as of 2003 had been ratified by every country in the world except Somalia and the United States. The basic principles underlying this convention are: (1) the best interests of a child should guide any governmental action that affects that child; and (2) a child's rights and responsibilities should evolve as the child's own capacities evolve with age and maturity.
Under Article 9 of the Child Convention, it is possible for a child to be separated from his or her parents against the parents' will, but only ". . . when competent authorities subject to judicial review determine, in accordance with applicable law and procedures, that such separation is necessary for the best interests of the child. Such determination may be necessary in a particular case, such as one involving abuse or neglect of the child by the parents, or one where the parents are living separately and a decision must be made as to the child's place of residence." Nothing in this formulation would justify transferring a child from one group to another group, as part of an effort to destroy the group from which the child is taken.
"Nondiscrimination" is at the heart of international human rights law, and the UN Charter itself states that human rights must be guaranteed to all, without distinction as to race, sex, language, or religion. Under human rights law, nondiscrimination is a separate norm, distinct from prohibitions against arbitrary killing or other ill treatment.
Under the Genocide Convention, however, discrimination and the attempt to destroy a group are implicitly linked. This linkage derives from the fact that it is not widespread killing per se that constitutes genocide—it is rather the attempt to destroy, in whole or in part, a national, ethnical, racial, or religious group. In contrast to the less restrictive characterizations of genocide that are part of international human rights norms, the Genocide Convention requires that three conditions must be obtained before an act rises to the level of the crime of genocide:  the commission of a prohibited act (killing, transferring children, imposing conditions of life, and so on)  with the intent of destroying a group  of a particular kind, that is, national, ethnical, racial, or religious. This restrictive formulation deliberately excludes from its scope the murder of political opponents and indiscriminate violence—although the widespread killing of individuals, whether or not the individuals belong to a particular group, surely violates contemporary human rights norms.
The prohibitions of the Genocide Convention are limited to acts calculated to destroy a group physically, and the convention fails to address issues of discrimination or cultural intolerance. Human rights norms have evolved to fill this gap, by recognizing special rights for certain kinds of minorities. Under Article 27 of the Civil and Political Covenant, for example, rights are granted to members of ethnic, linguistic, and religious minorities within states. In Europe, both linguistic and national minorities are protected by conventions and institutions created in the 1990s.
Modern formulations of minority rights include, among other things, the rights of minority group members to use their own language; to practice their own culture; to be educated in ways that will preserve and promote their distinct characteristics; and to participate effectively in the economic and political life of their society. In part, this broadening protection of minority rights is evidence that the mere prohibition of violence against minority groups is insufficient to protect them and to promote tolerance and diversity. But when these rights are respected, in spirit as well as letter, genocide is much less likely to occur.
Implementing Human Rights
Given the fact that the Genocide Convention was adopted in 1948, it is not surprising that it dealt only with the most heinous kinds of human rights abuses. Unfortunately, its early adoption also meant that a consensus could not be reached on how the convention might be implemented effectively—beyond the purely legal obligations imposed on states when they ratified it.
Today, human rights treaties generally have provisions that require the creation of institutions to oversee the implementation of those treaties. These institutions are usually composed of individual experts, rather than the diplomatic representatives of states, and their powers vary widely. Typically, human rights bodies are given the power (1) to periodically review and comment on reports submitted by state parties, in which the states describe how they are implementing the treaty in question and what problems they have encountered in doing so; (2) to receive, investigate, and determine the validity of allegations, made by individual victims or other state parties, that a state has violated its obligations under the treaty; (3) to investigate and report on the overall state of human rights in a particular country, outside the context of specific complaints; (4) [in the case of conventions on torture] to visit places of detention to ensure that ill-treatment is not occurring; (5) to interpret the treaty, often via the issuance of commentaries on specific rights or the scope of state obligations; and (6) to educate governments and the general public on the content of human rights law.
There are now three regional human rights courts. The European Court of Human Rights is the only permanent human rights body in the world, and every party to the European Convention on Human Rights is legally bound to obey the court's judgments. The judgments of the Inter-American Court of Human Rights are also legally binding (on parties to the American Convention on Human Rights), but acceptance of the court's jurisdiction by those parties is optional. The African Court on Human and Peoples' Rights was created in January 2004, although only a minority of African Union members has thus far accepted its jurisdiction.
Direct means of enforcing human rights treaties, such as the creation of bodies of experts and international tribunals, were unknown when the Genocide Convention was adopted in 1948, and the law that served as a model for the drafters of the convention was that of traditional international law between states. No specialized institution to oversee the convention was provided for, and signatory states are under no obligation to provide reports on their conduct to any international body. Although states are legally required under general international law to abide by their obligations under the convention (pursuant to the doctrine of pacta sunt servanda [promises must be kept]), there is no forum automatically available to complainants that might hear complaints that a state is not fulfilling its obligations. In particular, individuals have no right under the Genocide Convention or customary international law to direct access to an international court or other body that could determine whether their rights have been violated.
Article 9 of the Genocide Convention does provide that disputes between the state parties, including disputes that have to do with the responsibility of a state for genocide that has been committed, or for allowing genocide to go unpunished, can be submitted to the International Court of Justice (ICJ) for resolution. Unfortunately, some states opted out of this provision by filing a reservation to the convention at the time they ratified it; the ICJ upheld this practice in a 1951 Advisory Opinion, even though the Convention does not specifically provide for it.
Despite the many instances of genocide and alleged genocide that have become apparent since 1948, only two petitions alleging a violation of the Geneva Convention have been submitted to the ICJ. Both grew out of the war in the former Yugoslavia in the 1990s, and they were filed against Serbia and Montenegro (by Croatia and Bosnia-Herzegovina). The omissions are only too obvious: Although Rwanda has been a party to the convention since 1975, it has not accepted Article 9 and thus could not be brought before the ICJ without the Rwandan government's special consent. Cambodia is a party to the convention and has accepted the court's jurisdiction, but no state was willing to challenge the conduct of the Khmer Rouge in the late 1970s by submitting a petition to the court, despite the efforts of many nongovernmental organizations to promote such an application.
Human Rights Crimes and Human Rights Violations
It is not uncommon to read references to human rights crimes in the press and other media, and many people view the newly created International Criminal Court (with headquarters in The Hague, Netherlands) as a human rights court. Such references are incorrect, however, and they blur a basic difference between (abrogations of) human rights per se and the international crime of genocide.
The protection of human rights is primarily an obligation of states or governments—those obligations stemming from international treaties and customary international law. While there are increasing efforts to impose moral or political obligations on corporations and other bodies in the private sphere to respect human rights, the obligation to promote and protect the human rights of individuals over whose lives these bodies hold sway legally falls on states.
Although there are a few exceptions, international human rights law does not generally impose criminal liability on those who may be the individual agents of human rights violations. Neither the policeman who seizes a banned publication, nor the magistrate who sends an accused person to prison after an unfair trial, nor the bureaucrat who discriminates against a religious group in making social welfare payments is committing a crime under international law, even though each of these acts might constitute a human rights violation on the part of the government that the individual agent represents. One of the only exceptions to this principle is the crime of torture, which has been specifically designated as an international crime under both global and regional antitorture treaties.
The other major exception, of course, is genocide. Article 1 of the Genocide Convention begins by affirming that genocide "is a crime under international law which they [the parties to the treaty] undertake to prevent and punish." Articles 5 and 6 specify that states will adopt laws to ensure "effective penalties" for persons guilty of genocide, and that persons accused of genocide will be tried by the state in which the genocide occurred (or by an international tribunal).
The distinctions between human rights violations and individual crimes may help to explain the absence of provision for enforcement machinery in the Genocide Convention. There was no international criminal court in 1948, and one would not come into force until more than fifty years later. Thus, because the criminal prosecutions called for under the convention could only be carried out by national authorities, the drafters may have felt that there was no need to create a new international oversight body.
Treaty formulations of the particularly heinous conduct called genocide have more common ground with the concept of a war crime or crime against humanity, rather than the typical human rights violation. For example, some types of conduct that take place within the context of an armed conflict are criminalized in the 1949 Geneva Conventions, and states must punish those who commit grave breaches of the laws of war. As was true for the Genocide Convention, the 1949 Geneva Conventions set up no new mechanisms to monitor the implementation of the provisions of the conventions, and enforcement was left to domestic law.
More direct international enforcement of international criminal norms was not achieved until 2002, when the Rome Statute of the International Criminal Court (ICC) entered into force. The Rome Statute confers on the ICC jurisdiction over the crime of aggression, war crimes, crimes against humanity, and genocide. Human rights violations per se are not addressed under the ICC Statute, although the crimes it enumerates, if committed or tolerated by a government, would also constitute violations of a state's obligations under international human rights law.
Of course, the impact on victims is the same, whether, technically, they are victims of crime or of a human rights violation. But a verdict of genocide demands that there be an element of conscious intent (to destroy a protected group), which is absent from definitions of human rights obligations. The various international oversight bodies created to monitor the implementation of human rights treaties do not need to inquire into the motives of those responsible for alleged human rights violations. It is enough if government actions do violate international norms; those governments need not also intend to commit the violation.
This element of specific intent is what often leads lawyers and diplomats to contend with one another over whether a situation in which large numbers of people are being killed constitutes "genocide." The presence (or absence) of conscious intent in the human rights context is irrelevant, since "arbitrary" killings are prohibited no matter what their motivation(s). Every state is required to protect people under their jurisdiction from wholesale violations of the right to life, whether or not the deaths result from a discriminatory or genocidal motivation.
At the time it was adopted, the Genocide Convention was a milestone in international law, as it set limits on what a state was allowed to do within its own borders to its own citizens. Today, the international attention that is garnered by the internal affairs of states is familiar. The acts that constitute genocide are now illegal under a variety of domestic and international legal regimes.
At the same time, genocide remains an emotive word, as it evokes the horrors of the Nazi Holocaust and the end-of-century killings in Rwanda. Diplomats avoid its use, fearing the political consequences of identifying murderous events as genocide in instances in which they are unable or unwilling to stop the events. For opposite reasons, activists (oblivious to or wishing to reject genocide's actual definition in the Genocide Convention) attach the label of genocide to almost any killing of an identifiable group of people.
Legalistic and diplomatic debates over what constitutes genocide usually obscure the real question, which is—how the international community should react to widespread human rights violations or losses of life, whether or not the criminal actions meet the strict requirements of the Genocide Convention. Today, there is no concrete international law that permits the use of armed intervention in the prevention of serious human rights violations, although Rwanda and the Balkan wars have inspired a burst of scholarly and political commentary on this issue. Those who support intervention in extreme circumstances certainly believe that halting ongoing or imminent genocide justifies the use of force, but the limiting of intervention to genocide as it is defined in statutes may negate or nullify the principle of intervention. There is, as yet, no consensus on what criteria might justify intervention, who should authorize it, and by whom intervention might be carried out.
Despite its symbolic importance, genocide is now only one of many harms that international law seeks to prevent. Whether or not genocide was committed in Cambodia, Ethiopia, or the former Yugoslavia is less important than the fact that government-sponsored terror in these countries resulted in the deaths of millions of people. Rather than argue about what to call the killings, advocates should focus on how to prevent them and how to stop them if they recur. Protecting the lives of those at risk, for whatever reason—and continuing the daily task of promoting the human rights of tolerance, participation, and free expression—is more likely to accomplish the humanitarian goals of those who first sought to outlaw genocide.
Buergenthal, Thomas, Dinah Shelton and David P. Stewart. (2002). International Human Rights in a Nutshell, 3rd edition. Minneapolis, Minn.: West.
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Weissbrodt, David, Joan Fitzpatrick, and Frank Newman (2001). International Human Rights: Law, Policy, and Process, 3rd edition. Cincinnati, Ohio: Anderson.
HUMAN RIGHTS The term "human rights," denoting universally applicable moral principles as the rights of all people, was until recently not in common usage in India, either as a language of resistance or as a normative principle in matters of governance. Rights were articulated in the course of the anticolonial struggles as civil liberties and democratic rights. These rights were incorporated in the 1950 Constitution of India as Fundamental Rights which were justiciable in the courts of law, and as the Directive Principles of State Policy. The latter are seen as indicating the general direction in which the expansion of fundamental rights ought to take place in such areas as socioeconomic equality and justice. In the years after independence, numerous movements emerged against caste and class oppression, and in support of development, civil liberties, and democratic rights for all Indians.
The Legal Framework of People's Rights in India
The Constitution of India and specific laws, along with representative and statutory institutions, provide the framework within which the rights of the Indian people become effective. These rights have helped to engender a process of equality in a society long segmented and stratified by caste, feudal, and class hierarchies. Alongside uniform rights the Constitution also recognizes group-differentiated rights. Religious minorities and weaker sectors of society are guaranteed some special safeguards (e.g., the right to freedom of religion). Similarly, the Directive Principles of State Policy (Part IV of the Constitution) direct India's central and state governments to promote socioeconomic conditions in which legal, political, and cultural rights will become substantial. Article 38, for example, directs the state to commit itself to "the welfare of the people" by promoting a "social order" in which "justice—social, economic and political—shall inform all institutions of national life." To achieve this, the state is urged to "strive to minimise inequalities of income" and to "eliminate inequalities in status, facilities and opportunities." Article 46 likewise instructs the state to "promote with special care the educational and economic interests of the weaker sections of the people and in particular, of the Scheduled Castes and Tribes" and "protect them from social injustice and all forms of exploitation." The Directive Principles thus envisage an active role for the state in providing a range of socially ameliorative rights, including access to adequate means of livelihood, equal pay for equal work, living wages for workers, provision of just and humane conditions of work, and the right to education, public assistance, equal justice, free legal aid, and adequate nutrition and health.
There are specific provisions in the Criminal Procedure Code and the Indian Evidence Act that protect people against arbitrary arrests, detention, torture, and use of force by the police. Specific Acts of Parliament have also sought to give protection to disadvantaged social groups. The Protection of Civil Rights Act of 1955 "penalises the preaching and practice of untouchability in any form and prescribes punishment for enforcing any disability arising from untouchability." Similarly, the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act of 1989 provides for special courts for the trial of offenses against members of Scheduled Castes and Tribes and for the relief and rehabilitation of victims of such offenses. Moreover, special institutions have been created by specific acts of Parliament to protect the needs of disadvantaged groups. These include the National Commission for Scheduled Castes and Scheduled Tribes (The Constitution [65th Amendment] Act, 1990); the National Commission for Women (the National Commission for Women Act, 1990); the National Commission for Minorities (the National Commission for Minorities Act, 1992); and the National Commission for Backward Classes (the National Commission for Backward Classes Act, 1993). The Protection of Human Rights Act of 1993 set up a National Human Rights Commission (NHRC), state human rights commissions in states, and human rights courts for improved protection of human rights. Under this act, "human rights" are defined as rights relating to life, liberty, and equality, and to the dignity of the individual, as guaranteed by the Constitution or embodied in international covenants and enforceable by courts in India.
The Practice of Human Rights: Ambivalences and Divergences
The practice of human rights in India has demonstrated both ambivalences and divergences. The institutional structures of the post-colonial Indian state are embedded in liberal Western principles of freedom and equality of individuals, as well as socialist principles of socioeconomic equality. At the same time, however, the social fabric of India continues to be deeply fragmented and segmented by caste, religion, language, class, and gender. Indian democracy, unfolding within the framework of the Constitution, evinced strong strands of egalitarianism and individual and group freedom. Ironically, however, it also incorporated measures that focused on "securing the state" in ways that eroded personal liberties and freedoms. In a manifestation of this "duality of state structures" in India, its democratic strands thus coexist with authoritarianism. Paradoxically, the Fundamental Rights to Freedom (Articles 19–22) in the Constitution contain provisions for "preventive detention," noting conditions under which these rights can be rendered virtually inoperative. Successive governments made extensive use of these constitutional provisions to enact preventive detention and other extraordinary laws to curb political dissent. Moreover, emergency provisions in the Constitution (Articles 352–360) specify certain conditions of "national emergency," during which parts of the Constitution, in particular those relating to the fundamental rights of citizens, may be suspended.
The Preventive Detention Act of 1950, used against the communists in Telengana, was the first such detention law enacted after the adoption of the Constitution. The Indo-China War of 1962 provided another occasion for the vigorous use of preventive detention. The declaration of emergency due to the war enabled the government to promulgate its Defence of India Ordinance of 1962 and to frame rules under it. The official state of emergency persisted until subsequent wars with Pakistan in 1965 and 1971, and the government continued to detain people under the 1962 act. In 1968 the Unlawful Activities (Prevention) Act was passed, turning many emergency powers under the Defence of India Act into statutory law. Under this act, any organization could be declared illegal, and any individual imprisoned for questioning India's sovereignty over any part of its territory. The Preventive Detention Act, renewed seven times, lapsed in 1969. The states, however, continued to enforce their own preventive detention laws. In 1971 Parliament passed the Maintenance of Internal Security Act (MISA). The Defence of India Act of 1971 introduced some changes in MISA, particularly regarding the period of detention, making it more stringent. Indira Gandhi's "National Emergency" of 1975 suspended the right of access to the courts for the restoration of fundamental freedoms. Under such conditions, MISA assumed formidable powers. Certain amendments were subsequently made by the government, which virtually rewrote the act. The Constitution (39th Amendment) Act placed MISA in the ninth schedule of the Constitution, placing it beyond judicial review. The Constitution (42nd Amendment) Act of 1976 further strengthened the powers of the central government by providing that no law for the prevention of antinational activities could be declared invalid on grounds that it violated the fundamental rights in Part III of the Constitution. In 1977 the Janata Party government repealed MISA. It did not, however, repeal the other extraordinary laws that had been enacted by earlier governments, including the Armed Forces Special Powers Act and the Unlawful Activities (Prevention) Act. Preventive detention laws continued to be enacted by different political parties in power in the states of Madhya Pradesh, Jammu and Kashmir, Bihar, and Orissa. When the Congress Party returned to power, the National Security Act (NSA) of 1980 was enacted, followed in 1985 by the Terrorist and Disruptive Activities (Prevention) Act (TADA) of 1985 and 1987. TADA lapsed in 1995, but in 2002 the coalition government led by the Bharatiya Janata Party pushed through the Prevention of Terrorism Act (POTA) in an extraordinary joint session of Parliament. In December 2004 the new coalition government of the United Progressive Alliance led by the Congress Party of India fulfilled its election promise and repealed POTA. Several provisions of POTA were, however, retained through amendment in the Unlawful Activities Prevention Act, 2004.
Successive Indian governments have deployed extraconstitutional measures, euphemized as "encounters" and "disappearances" to counter insurgencies or class conflicts—for example, against the Naxalites, as the Marxist-Leninist guerrilla organizations are called, against the Khalistan secessionists in Punjab in the 1980s, and against Muslim secessionists in Kashmir since the 1990s. Moreover, the Northeast states of India, in a continuation of British colonial policy, have been viewed as a frontier region, a land to be buttressed and militarily secured. In this view, the specificity of the region as well as differences among the people of the area were overlooked, and the Northeast was construed as a homogenous territorial unit, disturbed and dangerous, control of which was imperative for strategic reasons. Thus movements for self-determination and autonomy in various parts of the region, and struggles grounded in issues of underdevelopment, illegal migrations, questions of identity, and political rights were addressed by the central government with its coercive might in the form of counterinsurgency measures, backed by laws like the Armed Forces (Special Powers) Act of 1958.
Custodial violence is yet another violation of the right to life and liberty of citizens at the hands of the state. Torture, rape, and deaths in custody have been reported in large numbers. While campaigns by civil rights groups and dissemination by newspapers have brought these violations to public notice, the procedure of redemption in these cases, including prosecution and compensation to families of victims, most of whom are poor, remains painfully slow. The NHRC's annual report for the year 2001–2002 cites 165 deaths in police custody and 1,140 deaths in judicial custody.
Another area of human rights violations are crimes perpetrated by dominant sections of the population against marginalized groups. Recent cases of upper caste violence in Haryana, Punjab, and Bihar demonstrate how the fundamental rights of the Constitution are regularly thwarted by the complex hierarchical structures of Indian society. The lynching of Dalits (formerly called "untouchables") by upper caste villagers and members of the Vishwa Hindu Parishad in the Dulina district of Haryana in October 2002, for example, reveals that the vulnerability of Dalits involved in the leather trade was increased by police threats to implicate them under the Prohibition of Cow Slaughter Act. The shocking pattern of communal violence and murder of Muslims in Gujarat in February 2002 shows a collusion of the state government in acts of brutal violence and its justification by the political leaders of the state.
In all cases of mass violence, as in Gujarat, women suffer directly as victims of rape; they also suffer indirectly when rendered destitute or homeless by displacement, loss of livelihood or the death of wage-earning family members. Another constant problem is sexual harassment at the workplace. Despite guidelines issued by the Supreme Court in 1997 in the Vishakha case, in most places of work there is no attempt to prohibit or punish harassment.
Movements for the Expansion of Rights in India
The concept of rights has progressively widened as a result of popular struggles to include rights not mentioned in India's existing legal-constitutional framework. The right of access to the means of subsistence and control over resources for peasants, the right of indigenous people to their cultural resources, environment, and livelihood, the right to a humane environment and humane development are some of the rights that have emerged as a result of people's movements. The Narmada Bachao Andolan, for example, has sustained a prolonged struggle against the building of the Sardar Sarovar Dam on the River Narmada. The large number of people displaced by its construction has not only raised significant issues pertaining to people's rights, but has also subjected state development projects to greater scrutiny. Similar movements against large dams are seen in other places, including the Tehri region of Uttaranchal. Experiences with development projects and popular struggles have also shown that while these movements have succeeded in raising consciousness about human rights, they have also borne the brunt of state repression. Similar issues of access to resources and claims to a traditional environment and livelihood have been raised in the context of attempts by the state to appropriate forests, which would prevent local people from exercising their claims to the forest and its resources, as in the Chipko movement in what is now the state of Uttaranchal.
It is important to note that a vibrant civil rights movement has developed in India. In a 1982 judgment (People's Union for Democratic Rights v. Union of India, AIR 1982 SC 1473), the Supreme Court held that nonpayment of minimum wages to workers amounted to denial of their right to live with basic human dignity, violating Article 21 of the Constitution, which guarantees to every Indian citizen the fundamental right to life and personal liberty. It is also important to note that the origins of the civil rights movement in India is often traced to the formation of the Indian Civil Liberties Union (ICLU) in Bombay on 24 August 1936 under the initiative of Jawaharlal Nehru, with Rabindranath Tagore as its president, Sarojini Naidu its working president, and other prominent nationalist leaders as members. "The idea of civil liberties," said Nehru in his address to the founding conference of the ICLU, "is to have the right to oppose the government." The ICLU investigated cases of political imprisonment and harassment, police brutalities, bans and restrictions on citizens' and subjects' rights by the British colonial government and by the rulers of the princely states, publishing reports and lodging protests on the basis of its investigations.
After independence in 1947, and with the adoption of a republican constitution, many nationalists' concerns for civil liberties diminished or disappeared. Nationalists who had once vehemently espoused the right to oppose the government now evinced an overriding anxiety over protecting the infant state. Communists involved in peasant movements in the Telengana region of Andhra Pradesh and Tebhaga in West Bengal took the initiative to reorganize the civil rights movement. The Civil Liberties Committee (CLC) was formed in West Bengal in 1948 with the support of renowned intellectuals. It was in this phase that the movement had to face a conceptual dilemma that lingers to this day—the question of political violence. Working on the assumption that state violence was more harmful to civil society than that practiced by revolutionaries, the CLC took the stand that the primary task of the movement was to oppose the authoritarian tendencies of the state and to see that the state did not assume arbitrary powers or move beyond the boundaries set by law.
In 1971 elections the Congress government of Indira Gandhi was reelected, riding high on her populist slogan of "eliminate poverty." The next few years, however, saw the promise of radical change based on economic growth and equitable redistribution slip away. The Congress government faced massive opposition in Bihar, which threatened to assume nationwide proportions, while a similar movement against the imposition of central rule loomed large in Gujarat. Under the Emergency Provisions of the Constitution, Prime Minister Gandhi armed the government with extraordinary powers, proclaiming a "National Emergency," which lasted from June 1975 to 1977. In the pre-Emergency period, the civil rights movement had remained an appendage to one or another regional struggle. While concerns for civil rights were generated in the course of these struggles, these concerns remained at the periphery of those political struggles. The National Emergency, unlike state repression of struggles in earlier years, caught in its web large numbers of those functioning within the parameters of parliamentary politics, irrespective of their ideological leanings. The Emergency thus shook the urban middle class intelligentsia out of its complacency regarding the durability of the democratic processes. The shared experience of repression generated a sympathetic perception by liberal groups of the more radical groups, while alerting sections of the latter to the importance of constitutional values. This experience shaped the intellectual and political context that led to the emergence of an autonomous civil rights movement. Regional organizations, notably the Andhra Pradesh Civil Liberties Committee, the Association for the Protection of Democratic Rights, the Committee for the Protection of Democratic Rights, the Organisation for the Protection of Democratic Rights, and, at the national level, the People's Union for Civil Liberties and Democratic Rights, all of which were formed either before or during the Emergency, acquired national attention and support.
In addition to civil liberties and democratic rights groups, people's tribunals, human rights commissions, and citizen's initiatives have also investigated specific events. For instance, the Indian People's Human Rights Tribunal, under Justice V. R. Krishna Iyer, was set up by the People's Human Rights Commission on 10 January 1987 in the aftermath of the 1984 massacre of Sikhs in Delhi and in other parts of the country, following the inaction of the government to bring the guilty to justice. The Human Rights Commission consisted of a number of prominent persons, including V. M. Tarkunde, Mrinal Sen, Rajni Kothari, and Romila Thapar. The main objective of the commission was to establish and maintain the Human Rights Tribunal comprising ex-judges of the Supreme Court and the high courts.
In 1993, amid growing domestic concerns over human rights abuses in different parts of the country—particularly the Northeast, Punjab, and Jammu and Kashmir—and international pressures for greater governmental accountability, the Protection of Human Rights Act was finally passed. The act provided for "the constitution of a National Human Rights Commission, State Human Rights Commissions in States and Human Rights Courts for better protection of human rights and for matters connected therewith or incidental thereto." The seminars held at Mumbai, Delhi, Hyderabad, and Kolkata to elicit public opinion on the National Human Rights Commission Bill were, however, strictly official affairs, and very few individuals apart from officials and ministers were invited, giving rise to apprehensions that the NHRC might be yet another attempt to dampen opposition to civil rights violations in India. While various other national commissions, including those on women, minorities, and scheduled castes and tribes, have been made ex-officio members of the commission, the NHRC has been explicitly precluded from taking up cases pending before other commissions, which effectively removes many matters from its purview and limits the scope of its investigations. In its actual working, however, the NHRC has made several significant interventions. It filed a Public Interest Litigation in the Supreme Court, seeking to enforce the rights of the 65,000 Chakma tribals who were being persecuted in Arunachal Pradesh (National Human Rights Commission v. State of Arunachal Pradesh Writ Petition [Civil] No. 720 of 1995, SC 295, 1996, 49435.). The NHRC also opposed the Prevention of Terrorism Ordinance and Bill for its ramifications for the promotion and protection of human rights, but with little success. Most recently, it intervened in the Gujarat cases stemming out of the many murders of Muslims in that state in February 2002.
Ujjwal Kumar Singh
Desai, A. R., ed. Violation of Democratic Rights in India. Mumbai: Popular Prakashan, 1986.
Expanding Government Lawlessness and Organised Struggles. Mumbai: Popular Prakashan, 1991.
Gopalan, S. India and Human Rights. New Delhi: Lok Sabha Secretariat, 1998. Provides details of specific acts of Parliament and constitutional provisions pertaining to human rights.
Kothari, Smitu, and Harsh Sethi, eds. Rethinking Human Rights. Delhi: Lokayan, 1991.
Prakash, Louis, and R. Vashum, eds. Extraordinary Laws in India. New Delhi: Indian Social Science Institute, 2002.
In the twentieth century the international community embraced human rights as a way to promote justice for individuals in communities around the world. As the standards were promulgated , scholars raised questions about the origins of the idea, the conceptual boundaries of such rights, methods of enforcement, and the potential impact of human rights in the future. Although international human rights norms are widely accepted, their interpretation and enforcement remain controversial. Sometimes governmental officials have manipulated the standards to avoid being held accountable, claiming that human rights are incompatible with their own political traditions. The fundamental dilemma for human rights is that states play a dual role: They are expected to uphold human rights standards, but at the same time they are usually the perpetrators of gross violations of human rights.
Although the idea of human rights usually is traced to the European Enlightenment (1600–1790), some analysts contend that historical antecedents exist. They frequently make mention of the Greek playwright Sophocles' (c. 496 b.c.e.–406 b.c.e.) Antigone, the play in which the heroine is in a predicament: Antigone is caught between the positive law—the king's decree forbidding the burial of traitors, including her brother who fought against the city—and the higher law requiring that one always give relatives a decent burial. Most often commentators in the Western tradition derive human rights norms from antiquity, the Bible, and the Enlightenment.
Jurists point to other bodies of public international law to show that precursors of human rights exist. Other branches of international law generated humanitarian principles that are considered historical antecedents to twentieth-century human rights standards. For instance, the notion that torturing prisoners of war is strictly prohibited is one such norm. Other ancient ideas that are part of the customary law of war support the general idea that individuals, even if they are enemies, should be treated with dignity.
International humanitarian law is not the only field containing norms that are related to modern human rights norms. The duty of states to safeguard the rights of aliens is another; states must ensure that no harm comes to aliens while they reside within a state's borders, that no unjustified expropriation of property occurs, and the like. It often also is claimed that the standards set by the International Labor Organization should be considered the first human rights instruments.
sources of human rights
As jurists have dominated the field of human rights, they have tended to define human rights by referring to written instruments. The International Bill of Rights consists of the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, and the International Covenant on Civil and Political Rights. In addition to treaties, the other major source of human rights norms is customary international law, whose existence is demonstrated by state practice and opinio juris. State practice means that the behavior of states supports the norm, and opinio juris means that there is a sense of legal obligation on the part of the state not to infringe on the human right. Whereas treaties are binding only on states that choose to ratify them, customary law is, by definition, binding on all states. Many of the most significant human rights conventions, such as the Convention Against Genocide, the Convention Against Torture, and the Convention on the Rights of the Child represent the codification of customary law. Hence, some human rights are said to be both conventional and customary.
Some human rights norms are deemed so important that they are ius cogens, or peremptory norms. This status usually is construed to mean that they are "non-derogable," that is, can never be suspended. Such norms include the rights against genocide, piracy, slavery, and torture. These most basic rights are conceived as "super norms," which are not subject to negotiation. As a ius cogens norm is absolute in character, it can be superseded only by another ius cogens norm (though no example of one that would trump another appears in the scholarship on this subject). No matter what sort of crisis a government might face, officials may not derogate from the obligation to respect human rights that have the status of being ius cogens.
the question of the universality of human rights
Human rights scholars have grappled with the question of whether the legal standards promulgated by the United Nations (UN) reflect universal or Western (or Eurocentric) values. This debate is partly motivated by a desire to respond to the theory of cultural relativism , which holds that different societies have divergent value systems. The question is whether the existence of multiple moral codes poses a threat to the universality of international human rights standards. Ignoring the reality of diverse traditions, the vast majority of analysts have simply presumed the validity of universal human rights standards.
Some have taken a different approach. One scholar, Jack Donnelly (1982), conceded that human rights norms are derived from the European Enlightenment and contended that the concept of human rights simply is not found in Asian and African traditions. His response to the challenge of cultural relativism was to argue that the Western method of guaranteeing human dignity is the best, compared with approaches taken in other societies, and therefore should be adopted or imposed in other countries.
In contrast to Eurocentric interpretations of human rights, some scholars have advocated taking a comparative approach. One notable example is Raimundo Panikkar (1982), whose expertise in comparative religious ethics led him to use an innovative methodology. Rather than looking for the precise Western formulation of human rights in the English language, Panikkar searched for the homeomorphic equivalent to human rights in ethical systems across the globe to identify shared universal principles. Others scholars also have argued for conducting cross-cultural empirical research to find consensus that would support particular human rights standards. Although a comparative analysis of human rights might offer a way of identifying cross-cultural universals, little serious scholarship of this sort has been undertaken.
The debate about the universality of human rights has continued in other contexts. The question whether "Asian values" or Islamic law is incompatible with human rights represents a variation on this theme. Some scholars who come from non-Western countries contend that the human rights discourse should be challenged because of its colonial legacy or maintain that human rights advocates are missionaries attempting to impose their worldviews on others. Even if these scholars are correct in their supposition that human rights standards are associated with European political traditions, the discourse of human rights may prove to be useful to advocates around the world.
Scholarship on the role of human rights non-governmental organizations in transnational networks reveals that the international instruments empower local campaigns for human rights. Regardless of their origins, activists have found international human rights to be useful. Ultimately, the experience of activities attests to the capacity of human rights norms to empower marginalized groups despite their European origins.
new human rights
There is no question that new substantive human rights norms have appeared on the global horizon. After first-generation human rights (i.e., civil and political rights) were established, the debate over second-generation rights (i.e., economic, social, and cultural rights) began. Although there is said to be no implicit hierarchy among the two sets of human rights enumerated , many have inferred that first generation rights are more well accepted. Some Anglo-American scholars go so far as to deny that economic rights count as human rights mainly because it is unrealistic to expect states to provide for rights they cannot afford, and the assumption, perhaps unjustified, is that economic rights such as the right to shelter and the right to food are more costly than the right to freedom of speech or religion (negative rights).
Some have argued that the classifications are arbitrary because the determination of whether a right is political may hinge on whether it is found in a constitution. Furthermore, some rights, such as the right to form a trade union and the right of self-determination , are found on both lists.
Controversy also raged over whether third-generation rights, which include collective or group rights, are genuine human rights. The concern about such rights is that guaranteeing group rights may lead states to trample on individual rights. Another worry has been to avoid construing the right of self-determination in a way that supports a right of secession because international law has been understood as almost entirely opposed to an interpretation that would support changes in national boundaries.
In the 1990s women's rights were proclaimed as human rights. The impetus for this development was the World Conference on Women held in Beijing in 1995. It became clear that states should be held accountable for failing to protect women from human rights violations committed in private realms such as the family, religious institutions, and corporations. The main treaty for women, the Convention on the Elimination of All Forms of Discrimination Against Women, was found lacking because it did not specifically address violence against women, including forms of violence occurring in the private sphere. Although CEDAW was widely ratified, many states undercut its efficacy by attaching reservations, understandings, and declarations (RUDs) specifying that they would enforce the treaty only so far as was consistent with Islamic law.
Children's rights also were recognized in the 1990s, although Poland first proposed the idea of international legal protection for children's rights within the UN system in 1962. Following the usual pattern of drafting a nonbinding declaration followed by a treaty, the UN completed the Convention on the Rights of the Child in 1989. It quickly became one of the most widely ratified instruments. Despite this success, governments could not agree on the interpretation of childhood, and the definition of a child was not entirely resolved. A child is a person under the age of eighteen, but international law does not specify the point at which children's rights begin. It remains unclear whether the unborn child, or fetus, has human rights.
In 2005 a human rights treaty for persons with disabilities was in the process of being drafted. The campaign to create the Convention to Promote and Protect the Rights of Persons with Disabilities occurred because of a paradigm shift from the medical model—which treated disability as a condition inhering in the individual—to the sociopolitical model, which focuses on the failure of the state to make environmental adaptations to ensure the full participation of persons with disabilities in all aspects of social life. Accordingly, instead of having the World Health Organization control disability policy (e.g., the International Classification of Impairments, Disabilities, and Handicaps), disability came to be understood as a matter of human rights, and thus human rights institutions came into play. The new disability jurisprudence is reflected in the new treaty.
Some minority groups have launched campaigns for greater international protection. Gays and lesbians have succeeded in some major decisions (e.g., the Toonen decision of the Human Rights Committee and the Dudgeon decision of the European Court of Human Rights). The reasoning in these cases turned on the right of privacy rather than on equal protection. The next issue on the agenda for sexual minorities—that is, same-sex marriage—has raised the
question of whether same-sex couples are entitled to equal protection of the laws, a question that remains largely unresolved in most countries except Belgium, the Netherlands, and a few provinces in Canada, where same-sex marriage is legal. The debate about gay rights shows how various general norms, such as privacy, equality, and nondiscrimination, can be inadequate to the task of protecting members of some minority groups.
In 2005 some marginalized groups lacked their own treaties (e.g., gays and lesbians, religious minorities, and indigenous peoples). The social movements for new instruments have occurred with little coordination or realization of the tensions between treaties—for example, women's rights versus cultural rights. Additional rights, such as environmental human rights, the right to health, and cultural rights, also are being put forward. New human rights are always emerging.
In addition to some of the innovations in standard setting, there are new institutional mechanisms to enforce human rights throughout the world. Within the international community there are two major sets of institutions: charter-based bodies and treaty-based mechanisms. The UN Charter mandated the creation of the Human Rights Commission, which drafted the Universal Declaration of Human Rights. The Commission, the Subcommission on the Protection and Promotion of Human Rights, and the High Commissioner for Human Rights are referred to as the Charter-based institutions. As for the second type, each human rights treaty has its own committee of experts whose responsibility it is to enforce human rights in that convention.
The regional bodies include the Inter-American Commission and Court, the European Court of Human Rights and its appellate mechanism, the African Commission and Court on Human and Peoples Rights, and the revived Arab League for Human Rights; as of 2005 no Asian system existed. Although the regional bodies may have the advantage of rendering decisions in accordance with the values of the countries over which they have jurisdiction , the existence of multiple systems involves the disadvantage of increasing the likelihood that there will be competing interpretations of human rights.
Domestic courts increasingly have used international human rights law in their decision making. To the extent that governments of the world see fit to rely on international law either as the basis for their decisions or as an interpretive guide to clarify the scope of legal principles in their national constitutions, the standards will be enforceable. The willingness of national courts to reject the ancient doctrine of sovereign immunity so that it no longer will be a barrier to litigation bodes well for future attempts to hold leaders accountable. For example, when former Chilean dictator Augusto Pinochet (b. 1915) traveled to the United Kingdom in 1998 for medical treatment, he was arrested under a Spanish warrant to stand trial for human rights abuses.
The establishment of the International Criminal Court (ICC) is another significant development. The tribunal has the potential to enforce both human rights standards and humanitarian law. This institution provides a reason to be optimistic about the possibility not only of punishing officials who commit gross violations of human rights but also of deterring future misconduct. However, the reluctance of the U.S. government to join the ICC by ratifying the Rome Statute threatens to undermine the efficacy of this promising enforcement mechanism.
The trend toward using truth commissions to document state practice of human rights violations accompanied by impunity for leaders has raised questions about the possibility of holding leaders accountable. The phenomenon of state apologies for human rights violations, which usually substitute for restitution , is another development that some consider troubling. Although there is no reason why truth commissions and apologies should be used in lieu of punishment and restitution, this has been the practice in most countries. International scrutiny of governmental action may call into question the validity of both truth commissions and state apologies in their current forms.
The future of human rights depends not on legal instruments or institutional mechanisms but ultimately on the willingness of states to adhere to human rights standards themselves and to hold others accountable as well. Social movements play a crucial role in motivating governments to take human rights standards seriously by mobilizing shame and demonstrating widespread support for the values on which human rights are based.
See also: Children's Rights; Convention for the Elimination of All Forms of Discrimination Against Women; Economic, Social, and Cultural Rights; International Criminal Court; International Human Rights Law; International Humanitarian Law; Universal Declaration of Human Rights; Women's Rights.
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Renteln, Alison Dundes. International Human Rights: Universalism Versus Relativism. Thousand Oaks, CA: Sage Publications, 1990.
Toonen v. Australia. UN Human Rights Committee, Communication No. 488/1992 (adopted March 31, 1994).
Alison Dundes Renteln