HUMAN RIGHTS?
Arunabha Bhoumik
The latter half of the twentieth century has seen remarkable changes in our concept of the international political regime vis a vis the individual. Fundamental to this change is the development of so-called "human rights." However, when discussing human rights, several problems arise in their definition, and the means by which their definition demands enforcement.
Human rights can roughly be defined as those rights, which are possessed by a person by virtue of the fact that they are human. Human rights have their roots in what were once known as "natural rights", or those rights that were derived from man's understanding of "natural law" (Cranston, (1989), 17). Natural laws were basic principles that societies should observe because they reflect man's natural needs (Cranston, 22). Because they are derived from natural law, human rights have their origins "above" man, and therefore they cannot be taken away by man.
The language of human rights reflects a moral agenda, and the language, "is based on the assumption that human beings possess certain individual rights, and these entitlements should be defended from the state or groups of individuals who violate them (Hadjor, (1998), 359)." For example, The United States Declaration of War against Spain (1898), stated as its justification,
"Whereas the abhorrent conditions which have existed for more than three years in the island of Cuba, so near our own borders, have shocked the moral sense of the people of the United States, have been a disgrace to Christian civilization... (Laqueur and Rubin, (1989), 146)."
Theodore Roosevelt, in discussing human rights in foreign policy in his State of the Union Address in 1904, said,
"...there are occasional crimes committed on so vast a scale and of such peculiar horror as to make us doubt whether it is our manifest duty to endeavor at least to show our disapproval of the deed... (Laqueur and Rubin, 147). "
Both examples of American foreign policy at the turn of the century foreshadow a movement in international relations, which places basic requirements on the manner in which states treat their subjects. The late twentieth century has seen a revival of this idea of human rights, largely due to the atrocities committed by the Axis powers during the Second World War. Principles pertaining to human rights were incorporated into the United Nations Charter. Article 55 of the Charter declares that the U.N. shall "promote universal respect for and observance of human rights and fundamental freedom for all." Article 56 states that "all members pledge themselves to take joint and separate action in cooperation with the Organization for the Achievement of the purpose set forward in article 55 (Hadjor, pg 362)."
This movement for the protection of human rights has manifested itself in several ways, most noticeably in the form of United Nations intervention in the name of human rights. Since its creation in the 1940s, the United Nation has initiated 34 peacekeeping operations, 20 of which have occurred since the end of the Cold War (Hadjor, pg 361). However, the idea of intervention in the name of human rights, as well as the notion of human rights in general has several problems associated with it. These problems relate to defining human rights as well as in enforcing them.
The first problem in discussing human rights is in our definition of "human." Although defining human seems a relatively simple task, it has several subtleties associated with it. The definition of "human" in "human rights" implies universality in its application. Human rights must apply to all humans. However, a cursory review of large-scale human rights violations in the twentieth century reveals that violations of human rights are often perpetrated against nations of people. The Holocaust, for example, was an attempt to eradicate the Jewish people. Similar atrocities have been perpetrated by the Turks against the Armenians, the Turks against the Kurds, and the Chinese against the Tibetans. Often the violations manifest themselves in attempt to wipe out a culture, as well as violations against individual people.
For example, Turkey outlawed the use of the Kurdish language until 1991 (Marsden, 1999). "In more recent times and coincident with the development of and sensitivity to multiculturalism, concerns have arisen about the rights of cultural identity and political representation that seem more properly to attach to some groups rather than individuals (Edwards (1999), 259 )." "Rights adhere to the human simply qua human. Ethnic groups on the other hand do not have rights by virtue of their group identity (Edwards, 263)." A problem therefore lies not with our definition of human per se, but rather whether or not our definition, with its emphasis on the individual, leaves out certain classes of acts that might otherwise be deemed unjust. In light of the recent surge in nationalism and ethnic violence since the end of the Cold War, this subtlety in our definition is of particular concern.
A second problem that arises out of the innate individual nature of the word "human" is how to properly address the notion of human rights within the scope of communitarian values. By virtue of their high moral ground, human rights are inherently deontological in nature. This means that violations of human rights are wrong per se, and not simply because the sum total of their effects hurts humanity. For a utilitarian however, what is right is what is good for the most people. Our notion of the individual in human rights therefore comes into question if we recognize the needs of the community, and choose to place them above the needs of the individual. Our concept of "human" in human rights with both its deontological nature and its emphasis on individualism, forbids any such consideration of communitarian values.
A second set of problems arises when we try to define the "rights" contained within "human rights." The difficulty of enforcing human rights is often compounded by differing ideas of what rights are. Western states have typically placed an emphasis on civil and political rights, such as free speech and religion, while Third World Nations have historically given priority to economic and social guarantees (Ziring, Riggs, and Plano, (2000), 328). The Universal Declaration of Human Rights issued by the U.N. General Assembly in 1948 does not clarify this discrepancy that it protects both types of human rights. Articles 18 and 19 protect freedom of religion and expression respectively, while Articles 22 and protect rights such as Social Security and favorable labor conditions ("Universal Declaration of Human Rights", United Nations Home Page, www.un.org, December 13, 1999). This difference in priorities between the West and the Third World, is not only a reflection of the Third World's status of being the "have-nots"(versus the West being the "haves"), but might also reflect cultural differences between the West and the East. James Hsuing points out that the meaning of human rights in the West is inseparable from its adversarial legacy. However, we do not find the same adversarial legacy in East Asia (Hsuing, (1985), 5-6).
This points to a second problem associated with the definition of "rights" within the human rights context, the conflict between cultural diversity and the universal nature of human rights. "Both rationality and natural law theory are often combined in the modern human rights discourse and take the form of the claims that universal human rights exist independent of culture ideology and value systems (Zechenter, (1997), 321)." This situation is necessary to the universal nature of human rights, and is supported by the fact that there has been worldwide acceptance and ratifications of the definition of human rights in documents such as the Universal Declaration of Human Rights. However, many of the universal rights were "...far from apparent to the delegates[to the U.N.]...The debate surrounding the Declaration of Human Rights indicated that there was little consensus about what constituted a human right (Hadjor, pg 363)."
Moreover, although the world wide ratification, "...does provide some legal justification for the universality of human rights, it does so primarily for individual living in modern nation-states...[it] fail to justify universal rights for indigenous peoples, may of whom were forcefully annexed into modern states and many of whom deny that modern states have a moral or legal authority to represent them in the international arena (Zechenter, pg 321)."
Many groups, for one reason or another, claim that the Western concept of universal human rights is incompatible with their cultural beliefs. Several Third World countries, including India, China, and several Islamic countries such as Iran, Pakistan, Sudan, Afghanistan, Indonesia, and Saudi Arabia, have ancient legal systems, and call for human rights to be viewed in a historical and cultural context (Littman, (1999), 4). In 1981, the then newly formed Islamic fundamentalist government of Iran made its position on the Universal Declaration of Human Rights clear when it affirmed that the declaration was the secular interpretation of Judeo-Christian values and therefore could not be implemented by Muslims. If it had to choose between the stipulations within the Declaration, and the divine law of the country, Iran would always choose Islamic Law (Littman, pg 4). In December 1984, Mr. Said Rajaie-Khorasani, Iranian representative to the U.N. General Assembly' Third Committee again put on the record his country's position regarding the Universal Declaration by stating,
"In his delegation's view, the concept of human rights was not limited to the Universal Declaration of Human Rights. Man was of Divine Origin, an human dignity could not be reduced to a set of secular norms...certain concepts contained within the Universal Declaration of Human Rights needed to be revised...[Iran] recognized no authority or power but that of Almighty God and no legal tradition apart from Islamic Law. As his delegation had already stated in the 36th session of the General Assembly, convention declarations, and resolutions or decisions of international organizations, which were contrary to Islam had no validity within the Islamic republic of Iran.[...] The Universal Declaration of Human rights, which represented a secular understanding of the Judeo-Christian tradition, could not be implemented by Muslims and did not accord with the system of values recognized by the Islamic Republic of Iran; his country would therefore not hesitate to violate its provisions, since it had to choose between violating the divine law of the country and violating secular conventions (Littman, pg 4)."
R.C. Pandeya also points out that, from an Indian perspective, the idea of universal human rights is flawed. To the Indian philosopher, every right has some dharma, or prescribed duty attached to it. Rights flow from duties and cannot exist independent of them. Mahatma Gandhi, for example, prescribed non-violent means of subversion. It was believed that from this duty flowed the rights of liberty. If liberty were a value that was placed above all else, then the adoption of liberty could occur by any means (Pandeya, (1986), 273). In other words the concept of absolutism with regards to human rights, in that they apply to all people by virtue of the fact that they are human, renders human rights doctrine as inoperable within Indian tradition in that it recognizes no duty from which the right flows. Furthermore, the universal application of human rights also comes in conflict with Indian philosophical tradition in that Indian philosophers do not believe in the existence of one mode of rationality (Pandeya, pg 268). In other words, Indian tradition would reject the existence of a universal mindset with regards to any doctrine, including rights.
What separates the modern human rights discussion apart from the traditional concern with political repression, or even social justice, is that the modern human rights crusade goes into the realm of culture ( Hadjor, pg 365). The modern human rights crusade goes beyond the relationship between the state and the individual and begins to address the relationship between the individual and the society in which they exist. Take the example of Roop Kanwar, an 18-year-old Rajput girl in India, who was burned alive at her husband's funeral pyre in 1987. Despite the possibility that she voluntarily submitted to the ritual, known as sati (it is not clear whether she did or not), Indian human rights groups launched a widespread protest on the ground that the practice was a human rights violation even if she committed to it voluntarily (Zechenter, pg 328).
According to some, regardless of their intent, human rights activists are in the process of global moral domination, a modern day practice that is no different than the 19th century Western missionary project, which sought to civilize non-Christian world (Hadjor, pg 368). Whether or not one agrees with the cultural relativists point of view, it is clear that "...the influence of cultural relativism and multiculturalism and postmodernist ideas is slowly undermining the entire system of international human rights treaties (Zechenter, pg 322)."
In addition to the numerous problems associated with the defining of human rights, there are several issues that need to be addressed with regards to the enforcement the human rights law on the international scene. Many of the problems that have arisen with regards to the enforcement of human rights law are closely related to the problems associated with defining human rights, in that it is a lack of consensus, which has often prevented enforcement.
Drawing upon the experience of the Nuremberg Trials, the United Nations has established the International Criminal Tribunal for the Former Yugoslavia (ICTY), and the International Criminal Tribunal for Rwanda (ICTR). Citing the commission of "crimes against humanity", as well as violations of the four Geneva Conventions of 1949, as well as the Convention on the Prevention and Punishment of the Crime of Genocide, the United Nations was authorized to apply international humanitarian law and to hold responsible those found violating fundamental human rights (Ziring, pg 204).
In addition, although there is no enforcer, nor is there a legislative body for the international community, there exists a permanent Judicial body, the International Court of Justice (ICJ). To make its decisions, the ICJ relies upon Article 38 of the Statute of the International Court of Justice which cites as the sources of international law 1) international treaties; 2) international custom; 3) the "general principles of law" recognized by civilized nations; 4) previous judicial proceedings; 5) the writings of recognized legal scholars (Ray, 1998, 445). Decisions of the ICJ are binding on the members of the U.N., however, no state can be brought before the Court without its consent (Ray, pg 328). As a result of the ambiguity of the sources of international law, and the lack of an enforcement mechanism, protection of human rights through the creation of international judicial bodies has proved problematic.
The reason for the problems of international enforcement relate to traditional notions of the international regime. Until the Second World War, the protection of human rights of individuals was seen as the function of the state, and therefore a domestic, not an international concern (Zechenter, pg 329). Because it was not a matter of international concern, the ability of the international community to collectively protect human rights, or any other aspect of international law is severely limited. The problem relates back to the traditional notion of sovereignty. As originally developed by Jean Bodin in De Republica (1576), sovereignty refers to the supreme law making and law enforcing body in a given territory. A sovereign state is the source of but is not subject to the laws of a given area (Ray, pg 445).
Closely related to the idea of sovereignty is the idea of non-intervention, which means that states will not interfere in the internal affairs of a sovereign state. The principle of non-intervention "is the most important embodiment of the modern idea of that states should be treated as autonomous entities; it is also he main structural principle of a conception of the world, dominant since the mid-seventeenth century (Ray, pg 438)." With the principle of non-intervention still somewhat intact, especially with regards to international powers, and no formal mechanism by which to challenge the claim of sovereignty, protection of human rights under the traditional international regime proves a nearly impossible task.
Furthermore, any protection, which is afforded human rights by world powers, would come in conflict with the seemingly sacred notion of sovereignty, and would therefore be somewhat immoral in its own right. In other words, so long as the international community maintain an interest in the protection of sovereignty, defining and protecting human rights will be difficult. For the time being, however, states remain the primary actors within the international system.
Progress has been made in the area of human rights however. Although the Universal Declaration of Human Rights remains a document that is not legally binding, the impact of the Declaration as well as other assertions of human rights has been felt. Three places where the impact of the Declaration has been seen are actions of the U.N. Security Council, international treaties, and in several national constitutions, which have been adopted since the General Assembly passed the Declaration (Driscoll, (1989), pg 46).
Continued progress in the area of human rights is therefore possible, although it remains to be seen whether or not it will be pursued. No matter what the intent of the West is in enforcing human rights, the international community as a whole must work together not only to come to a clearer consensus for the definition of rights, but also to consensually decide upon an enforcement mechanism. If the international community desires the universal application of human rights, it must renounce traditional notions of sovereignty, non-intervention, nationality, and the nation-state within the international regime. For human rights to take the place of state's rights, people, and not amoral states, must become the primary actors within the international system.
BIBLIOGRAPHY
Books and Articles
Abdullahi A. An-Na'im, "NATO on Kosovo is bad for Human Rights", Netherlands Quarterly of Human Rights, September 1999, pgs 229-231.
Rashad Antonius, "Human Rights and Cultural Specificity: Some Reflections", Arab Society: Class, Gender, Power and Development, edited by Nicholas Hopkins and Saad Eddin, American University Press in Cairo, 1997 pgs 469-477.
Maurice Cranston, "What are Human Rights?", The Human Rights Reader, edited by Walter Laqueur and Barry Rubin Penguin Books, NY 1989 pg 17-25.
Dennis J. Driscoll, "The Development of Human Rights in International Law", The Human Rights Reader, edited by Walter Laqueur and Barry Rubin Penguin Books, NY 1989 pgs 41-53.
John Edwards, "Collective Rights in the Liberal State", Netherlands Quarterly of Human Rights, September 1999, pgs 259-275.
Alexander Gillespie, "Ideas of Human Rights in Antiquity", Netherlands Quarterly of Human Rights, September 1999, pgs 233-258.
Kofi Buenor Hadjor, "Whose Human Rights?", Journal of Asian and African Studies, Nov 1998, pgs 359-368.
Riffat Hassan, "On Human Rights and the Qur'anic Perspective", Human Rights in Religious Traditions, edited by Arlene Swidler, The Pilgrim Press, NY, 1982, pgs 51-65.
James Hsuing, "Human Rights in an East Asian Perspective", Human Rights in East Asia: A Cultural Perspective, edited by Jmes Hsuing, Paragon House Publishers, NY, 1985, pgs 3-28.
David Littman, "Universal Human Rights and Human Rights in Islam", Midstream. February/March 1999, pgs. 2-7.
Chris Marsden, "British Mercanaries Planned Assassination of Kurdish Leader Abdullah Ocalan", World Socialist Website, December 13, 1999.
R. C. Pandeya, "Human Rights: An Indian Perspective", Philosophical Foundations of Human Rights, United Nations Educational Scientific and Cultural Organization, Paris, 1986.
Walter Laqueur and Barry Rubin, The Human Rights Reader, Penguin Books, NY 1989 pgs 146-147.
James Lee Ray, Global Politics 7th Edition, Houghton Mifflin Company, Boston 1998.
Elizabeth Zechenter, "In the Name of Culture: Cultural Relativism and the Abuse of the Individual", Journal of Anthropological Research, v. 53 no 3, Fall 1997 pg 319-342.
Lawrence Ziring, Robert Riggs, Jack Plano, The U.N. 3rd ed. Harcourt College Publishers, Fort Worth, 2000.
Universal Declaration of Human Rights (1948), United Nations, Home Page, December 13, 1999.
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