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3
 Human Rights

Editors

Prof.Dr. Harun TEPE

Asst.Prof.Dr. Duru ŞAHYAR AKDEMİR

Authors

CHAPTER 1 Assoc.Prof.Dr. Berfin KART

CHAPTER 2 Assoc.Prof.Dr. Cengiz İskender ÖZKAN

Hasan Mert CANKARA

CHAPTER 3 Prof.Dr. Harun TEPE

CHAPTER 4
Assoc.Prof.Dr. Pınar GÖZEN ERCAN

CHAPTER 5 Prof.Dr. Funda KESKİN ATA

CHAPTER 6 Assoc.Prof.Dr. Gökhan GÜNEYSU

CHAPTER 7 Assoc.Prof.Dr. Erdem DENK

CHAPTER 8 Prof.Dr. Harun TEPE

 T.C. ANADOLU UNIVERSITY PUBLICATION NO: 3987
OPEN EDUCATION FACULTY PUBLICATION NO: 2770

Copyright © 2020 by Anadolu University

All rights reserved.
This publication is designed and produced based on “Distance Teaching” techniques. No part of this
book may be reproduced or stored in a retrieval system, or transmitted in any form or by any means
of mechanical, electronic, photocopy, magnetic tape, or otherwise, without the written permission of
Anadolu University.

Instructional Designer
Res.Asst. Aykut Yakar

Graphic and Cover Design

Prof.Dr. Halit Turgay Ünalan

Proof Readings
Res.Asst. Musa Tömen
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Assessment Editor
Lecturer Sıdıka Şen Gürbüz

Graphic Designers
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Gülşah Karabulut

Typesetting and Composition

Süreyya Çelik
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Nihal Sürücü
Burak Arslan
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Saner Coşkun
Yasin Narin
Beyhan Demircioğlu

HUMAN RIGHTS

E-ISBN
978-975-06-3727-8

All rights reserved to Anadolu University.

Eskişehir, Republic of Turkey, February 2020
3338-0-0-0-2002-V01
 Contents

Philosophical The Historical

Background of the
CHAPTER 1 Foundations of CHAPTER 2 Idea of Human
Human Rights Rights
Introduction ................................................... 3 Introduction.................................................... 29
Problems Related to the Foundation of Classical Origins of the Idea of Human
Human Rights ............................................... 3 Rights............................................................... 29
Historical Background of Human Plato (427-347 BC)................................. 30
Rights ..................................................... 4 Aristotle (384-342 BC)........................... 32
Problems Related to Concepts of The Stoic Natural Law, Roman Stoics
Human Right and Human Nature ....... 5 and Cicero............................................... 33
The Ethical Foundation of Human The Concept of Religious Justice in
Rights ..................................................... 6 Medieval Philosophy...................................... 34
Concept of Human Rights ............................ 6 St. Augustine (354-430)........................ 35
Relying on the Universal Declaration Thomas Aquinas (1224-1274)................ 35
of Human Rights ................................... 7 William of Ockham (1290-1349)........... 36
Different Meanings of Human The Contractarian Theories in Modern
Rights .................................................... 8 Philosophy....................................................... 36
Kuçuradi’s Concept of Human Thomas Hobbes (1588-1679)................. 36
Rights ..................................................... 9 John Locke (1632-1704)......................... 39
Concept of Human Nature .......................... 10 Jean-Jacques Rousseau (1712-1778)...... 41
The Historical Roots of the Concept ..... 11 Other Contributions to the Concept of
The Challenges Related to the Right................................................................ 43
Concept of Human Nature ................... 12 Immanuel Kant (1724-1804)................. 43
Concept of Human Dignity .......................... 13 Jeremy Bentham (1748-1832) .............. 45
The Problems with Dignity .................. 14 Thomas Paine (1737-1809).................... 46
Katleb’s Concept of Dignity ................. 14
Kuçuradi’s Concept of Dignity and
its Relation to Honour and Pride ......... 15
Cultural Relativism and Universality of
Human Rights ................................................ 16
Donnelly’s Concept of Universality ..... 17
Objections to the Idea of Universality .... 18
The Challenge of Cultural Relativism ... 18
Justification of Human Rights Norms
Instead of the Claim of Universality ..... 18

iii
 Collective
Basic Documents Protection of
CHAPTER 3 CHAPTER 4
of Human Rights Human Rights
and World Politics
Introduction ................................................... 57 Introduction.................................................... 87
Major Human Rights Documents from A Widening Security Understanding at the
England: Magna Carta Libertatum (1215), Close of the Twentieth Century.................... 87
the English Bill of Rights (1689) .................. 58 The Cold War Years............................... 88
Magna Carta Libertatum ...................... 58 The 1990s................................................ 90
The English Bill of Rights ..................... 60 From Humanitarian Intervention to the
Fundamental Human Rights Documents Responsibility to Protect:
from USA: Virginia Declaration of Human A Conceptual Turn?....................................... 92
Rights (1776) and United States Declaration From Humanitarian Intervention to
of Independence (1776) ................................. 62 the Responsibility to Protect................ 93
Virginia Declaration of Rights ............. 63 A Conceptual Turn?............................... 94
United States Declaration of The Responsibility to Protect Under
Independence ........................................ 64 the United Nations......................................... 96
The French Revolution and French A New Era in Collective Protection of
Declaration of the Rights of Man and Human Rights Under the UN?............. 97
Citizens (1789) ............................................... 65 A Three Pillar Strategy for
The Relation of the French Declaration Implementing R2P................................. 100
of the Rights of Man and Citizens with Collective Responsibilities and the Security
the Previous Core Human Rights Council as the Main Authority...................... 101
Documents ........................................ 65 R2P’s Implementation under the UN... 101
The French Declaration of the The Stumbling Blocks............................ 102
Rights of Man and Citizens .................. 66
Universal Declaration of Human Rights
(1948) and Following International Human
Rights Documents ......................................... 68
Documents on Human Rights of the
International Organisations Before
the Universal Declaration of Human
Rights ..................................................... 68
The Universal Declaration of Human
Rights (1948) ......................................... 69
Further Human Rights Documents
After the Universal Declaration of
Human Rights ....................................... 72

iv
 Protection of Regional Protection
Human Rights in the of Human
CHAPTER 5 Framework of the CHAPTER 6 Rights: African
and American
United Nations Mechanisms
Introduction ................................................... 113 Introduction.................................................... 141
United Nations Charter Framework ............ 113 The Protection of Human Rights on the
Charter’s Framework ............................ 114 African Continent........................................... 141
The International Bill of Rights: The Organization of African Unity...... 141
Universal Declaration of Human Human Rights Enshrined in the
Rights and International Covenants.... 115 African Charter ...................................... 142
Other Conventions ................................ 117 The African Court on Human and
Main Bodies and Foremost Subsidiary Peoples’ Rights................................................ 148
Bodies ..................................................... 118 The Composition and The
The Commission on Human Rights to Functioning of the Court...................... 149
the Human Rights Council ................... 119 The Decisions of the Court ................... 150
The UN High Commissioner for The Protection of Human Rights on
Human Rights (UNHCHR) ................... 120 American Continent....................................... 151
Supervisory System of Conventions ........... 121 Organization of American States
Committees ........................................... 121 and Human Rights................................. 151
Supervisory Power of the Committees... 123 The Inter-American Human Rights
Charter-Based Mechanisms .......................... 127 Commission ........................................... 153
Special Procedures of the The American Convention on
Commission/Council ............................. 127 Human Rights........................................ 153
The 1503 Procedure ............................... 130 The Inter-American Court of Human
The Universal Periodic Review ............ 131 Rights............................................................... 156

v
 European Human Rights Theoretical and
Protection System: The Practical
CHAPTER 7 Council of Europe and CHAPTER 8
The European Court of Objections to
Human Rights Human Rights
Introduction ................................................... 169 Introduction .................................................. 193
The Council of Europe ................................... 170 The Challenges to the Idea of Human
Brief History .......................................... 170 Rights .............................................................. 194
Organs .................................................... 171 Theoretical Objections to the Idea of
European Court of Human Rights ............... 174 Human Rights ................................................ 195
The Composition of the Ecrthr ............ 174 Critiques of the Concept of Human
The Jurisdiction of the Ecrthr ............. 175 Rights .................................................... 197
Critiques of the Concept of Human
Nature ................................................... 199
Critique of Humanism .......................... 201
Objections to Universality ................... 202
Critique of Cultural Relativism ............ 204
Critiques of Individualism or
Neglecting Community ........................ 205
Critique of Deviation from its
Utopian and Revolutionary Core ......... 205
Practical Objections to Human Rights ....... 206
The Gap between the Idea of Human
Rights and its Practice ......................... 207
Critique of Human Rights
Movement: Humanitarian Law
Becomes a Part of the Problem ........... 208
An Evaluation of the Objections .................. 210
The Power of Human Rights ................ 210
The Weakness of Human Rights ......... 211

vi
Preface

Dear students,
The idea of human rights, as a kind of univer- The fourth, fifth, sixth and seventh chapters of
sal moral rights that belong equally to all hu- the book are about the international dimensi-
man beings only in virtue of being human, has ons of human rights. In this context, human
been one of the prominent ideas in the second rights in world politics in the fourth chapter,
half of the 20th Century. The idea of human human rights protection in the UN system
rights raises a number of demands for people in the fifth chapter, human rights protection
to lead a dignified life and to be treated with in African and American Systems in the sixth
dignity. These demands, called human rights chapter and human rights protection in Euro-
principles, are principles that should be pro- pean System in the seventh chapter were dis-
tected both nationally and internationally. cussed.
Hence, human rights is a subject that needs to Finally in the eighth chapter, which tackles
be examined in various dimensions. the main problems of human rights today, the
In this framework, the book, in which human theoretical and practical objections to human
rights are dealt with in many dimensions, con- rights are dealt with.
sists of eight chapters: We would like to thank all of our writers who
The first three chapters of the book contain contributed to the preparation of the book and
fundamental information about human rights. wish the book to be useful to all our students.
In the first chapter, the concept of human
rights, in the second chapter, the historical de- Editors
velopment of the idea of human rights and in
the third chapter, basic documents on human Prof.Dr. Harun TEPE
rights are examined. Asst.Prof.Dr. Duru ŞAHYAR AKDEMİR

vii
 Philosophical Foundations of
Chapter 1 Human Rights
After completing this chapter, you will be able to:
Learning Outcomes

1 Identify the problems related to philosophical

foundations of human rights 2 Explain the concept of human rights

3 Describe the concept of human nature and its

problems 4 Clarify the concept of human dignity

5 Evaluate the claim of universality and the

objections of cultural relativism

Key Terms
Concept of Human Rights
Chapter Outline Concept of Human Nature
Introduction
Ethical Norms
Problems Related to the Foundation of Human
Justification of Norms
Rights
Cultural Norms
Concept of Human Rights
Value of Human Being
Concept of Human Nature
Specificity of Human Rights Norms
Concept of Human Dignity
Worldwide Validity
Cultural Relativism and Universality of Human
Concepts of Human Dignity and Honour
Rights
Cultural Relativism
Universality
Relative Universality

2
 1
Human Rights

INTRODUCTION Human rights have roots deep in the mists of

time.Yet, the term in the modern sense can be traced
“Human rights and fundamental freedoms to the aftermath of World War II and the foundation
are the birthright of all human beings; their of the United Nations, Since 1945, the term of
protection and promotion is the first responsibility of human rights has witnessed an unprecedented
Governments” expansion in the internationally recognized rights
of all people. The scope of human rights has been
(Vienna Declaration and Programme of Action elaborated and permeated the fabric of international
1993) society. Although there are divergent views as to the
origins of human rights, there are two principal
The Vienna Declaration adopted by the World origins of theories on human rights: “the liberty-
Conference on Human Rights reasserts and based theory prevalent in common law jurisdiction
emphasises that “(a)ll human rights are universal, and the rights-based theory of civil legal system. Both
indivisible and interdependent and interrelated. address the relationship between the individual and
The international community must treat human the State, attempting to regulate interference by the
rights globally in a fair and equal manner, on State in an individual’s private life. In essence, the
the same footing, and with the same emphasis” liberty theories demand that the individual is free from
(Article 5). arbitrary State interference while the rights theories are
based on the inherent rights of peoples, which the State
must respect” (Smith, 2007, 6).

PROBLEMS RELATED TO THE

FOUNDATION OF HUMAN RIGHTS
The idea of human rights has been considered
as the most significant achievement of humanity
in the 20th century. Toward the end of the 20th
century the notion of human rights that expresses
equal dignity of every human being has become
a fashionable and powerful concept. In the spirit
of Enlightenment, this notion has come to denote
individual rights against government oppression,
including the right to freedom of thought, religion,
speech, assembly, and to a fair system of criminal
justice. Though these individual rights have
generally confirmed as a major subclass of human
rights, the question which rights consist of human
rights has received different responses. “Human
rights mean different things to different people.
People easily elevate what they want into a human
right, while they label what they dislike as a human
rights violation. Even those who claim to be using
‘objective’ criteria find it easier to write about
what human rights should be than describe them
as they are. This involves entering the ‘swampy
Figure 1.1 lowland of messy and confusing problems’ and the
process of law-making is therefore rarely studied”
(Tomaševski, 1995, 59).

3
1
Philosophical Foundations of Human Rights

important States and France adopted statements on rights.

The French Declaration of the Rights of Man (1789)
and the United States Declaration of Independence
Human rights mean different things to
(1776) and Bill of Rights articulate various rights
different people.
to be enjoyed by all citizens including liberty
and equality. The American Bill of Rights refers
to freedom of religion, person and property. The
Since “human rights” means different things French Declaration begins by stating that ‘Man
in different historical and cultural contexts, and are born and remain free and equal in rights’.
advocacy of such rights has frequently been The concept of liberty is defined in Article 4 of
challenged as subjective, it leads to search for a this Declaration and the other articles related to
thoroughgoing objective criterion for human the rule of law including the fair trial processes
rights. In the eighteenth and nineteenth century, (Article 6-10). French Declaration has served as
some European philosophers focused on the idea a guide for constitutions of other European and
of “human rights” or “rights of man” as a body of former colonial countries as well as the European
rights which should be based upon a concept of Convention on Human Rights itself. However, in
human being. They developed a corpus of human the first decade of the twenty-first century, the
rights to be afforded to mankind, and human international human rights system is in a state of
rights found its legal expressions in the different crisis.
legal, national documents. International human rights documents are the
codification of fundamental principles or universal
norms that are expected to determine both actions
Historical Background of Human
of the individuals, and the establishment of social
Rights relations (of social order) in a state. The State
“Early legal developments in the area of human established by its citizens for the administration
rights are said to have emerged from the Magna within justice of what is public and for the
Carta of 1215, a contract between the English protection of the citizens against each other or
King and Barons who were dissatisfied with the against the state can be determined by the principles
taxes being levied by the monarch. The rights of human rights or other kinds of principles, but a
contained in the Magna Carta were not human State cannot be free of principles or values.
rights, but rather political settlement. Human We confront with the concept of “universality”
rights belong to all human beings and therefore in the international legal human rights documents.
cannot be restricted to a select group of privileged In December 1948, the international community
men. From a contemporary perspective, the Magna adopted, by consensus, the Universal Declaration
Carta turns out to be a rather unfortunate example of Human Rights. This declaration has still been
of a human rights declaration” (Clapham, 2007, the preeminent document in the growing corpus
6). The English Bill of Rights of 1689 is similarly of human rights instruments. Although some of
considered a step for today’s texts like Magna the non-western states claim that the principles
Carta. They were political settlements. enshrined in the Declaration preserves the Western
At the same time, the works of a number of values and their own citizens, this Declaration
philosophers like J. Locke, J. J. Rousseau, T. Paine intends to preserve the people all over the world.
and following the German philosophers I. Kant It contains ethical norms for all in the third
had focused on the ‘natural rights’ or the ‘rights of world countries despite their cultural and social
man’, ‘liberties’ –‘civil liberty’ or ‘natural liberty’, differences. Any definition of human rights may
‘moral principles’ and ‘human dignity’ etc. The consider regional social and cultural differences,
modern concept of human rights is traced to the but it does not mean that human rights are relative,
ideas and texts adopted at the end of the 18th and they change from region to region or from
century. In the year 1776, American Declaration of society to society. The human rights possessed
Independence stated that all men are created equal by every human being simply and only for being
and have certain unalienable rights. The United a member of humanity leads to the idea that all

4
 1
Human Rights

humans are equal in dignity and rights, because also a philosophical and an ethical one. “It is
to possess rights has been reduced to only being a philosophical, for we badly need a clarification of
member of the human kind. Human rights which the concepts of human rights, which will enable
are related to each human being appear as demands us to arrive at more certain conclusions about
to recognize and observe the value of man. Their implications. It is ethical, for in everyday life,
aim is to protect each person for the simple fact individuals are those who respect or violate these
that he/she is a human being. rights; individuals are those who contribute to
their protection by their votes or by their decisions
while carrying out their public functions. It is also
political, for it is the task of each state to provide
the conditions which directly or indirectly make
possible for all its citizens to develop their human
potentialities and live ‘far from fear and want’. But
states also -whatever we may be inclined to say in
connection with that- are governed by individuals”
(Kuçuradi, 2013, 9-10). As one of the prominent
ideas of our century, it shows us the close relation
between two areas of philosophy, namely between
political philosophy and ethics.
Today, the questions dealing with the theoretical
and ethical foundations of human rights are believed
to remain unanswered. If we have a clear concept
Figure 1.2 Eleanor Roosevelt of the United States of human rights and conceive the anthropological
holding a Declaration of Human Rights poster in English
and ethical basis of human rights, we can easily
(November 1949)
clarify the connection between ethics and political
Source: https://news.un.org/en/story/2017/12/638842- philosophy. Human rights that stand at the centre
human-rights-day-un-launch-campaign-70th- of this connection are ethical principles or norms
anniversary-universal-declaration on the one side, but they constitute the basis of
political relations of state on the other side.
Today, if we want to answer the question what
human rights are, where they had their origin, Problems Related to Concepts of
which key principles form the international human Human Right and Human Nature
rights, we should rethink on the concept of human
rights and its historical foundation. To draw a Although the concept of human rights
framework of the concept of human rights ensures is considered unclear or indefinite by many
us to understand the meaning of “human” and scholars, this idea can be clarified adequately and
“rights”. We can find the conceptual foundation justified objectively. The problems of ambiguity,
of human rights in the philosophical discussions. subjectivity and indefiniteness which consist of
Human rights are tackled in ethics, in politics and main problems related to the human rights result
in law, but also in international relations and in from taking these concepts of international human
other areas of social sciences as economy, sociology, rights instruments for granted. The idea of “human
anthropology, social services, communication rights” which consists of “human” and “rights”
sciences etc. “Human rights as used in ethics? In presupposes a concept of human being (or human
the law? If in ethics, an abstract framework such nature). These two concepts “human” and “right”
as deontology or teleology? In ethical judgements invites us to concentrate on the concept of “human
applied to our societies? If in the law, the as it is? being” or “human nature”. At the same time, they
As it should be? The law where? If in politics, in invite us to think about some questions like “What
its history? In empirical explanation? In setting is a human being?” “What does human nature
standards?” (Griffin, 2008, 1). The human rights mean?” “What is the meaning of ‘human nature’?”
are considered not only as a political issue, but “Is there one human nature?” “Is it possible to separate

5
1
Philosophical Foundations of Human Rights

human nature as primary and secondary one, the one

is owned naturally from birth and the other one is important
acquired by actions?”. The question of whether there
is a human nature cannot be discussed unless we Every human person is regarded as a valuable
are agreed on what the concept of human nature or or dignified, because of having some
human being mean. To clarify what human being potentialities special to humans.
is provides us the meaning of the term “human
nature” which consists of both the conceptions of
“human” and “nature”. Therefore, we have to think
We also need to understand how human rights
about two important questions: “What is a human
are justified by ethical principles based on the value
being?” and “What is the meaning of ‘human
of human being or human dignity. Consequently,
nature’?”
human rights which are related to each human
Human rights as an idea and a conception of person appear as demands to recognize and protect
human mind grounds on an account of human the value of man. They aim to protect each person
being who should have the needed conditions to for the simple fact that he/she is a human being.
actualize his/her potentialities and everyone should Human rights are the rights of everyone who belongs to
be treated so that each will have the conditions to the human species. They are rights which all humans
realize his or her possibilities. equally enjoy simply because they are human. They
important
are believed to be shared by all human beings undue
to their nationality, age, race, gender, language,
occupation, religion, income, social standing or sexual
The concept of human rights is as an idea of orientation (Tepe, 2014, 60).
the human mind.
The aim of this chapter is to introduce the
concept of human rights, human nature and
human dignity, and the ethical foundations of
The Ethical Foundation of Human human rights in the context of cultural diversity
Rights and universality. This chapter mainly looks at
the concepts of human rights, human nature,
The idea of human rights is justified by means
dignity and universality, and tries to introduce and
of human dignity or the value of man. Every
respond to the challenge of cultural relativism to
human person is regarded as a valuable or dignified
universality of human rights clarifying the human
person, because of having these potentialities in
rights norms or principles as ethical principles.
his/her nature. So, the idea of human rights can be
justified by means of understanding human dignity
or the value of man. The concept of human dignity
indicates the ethical dimension of human rights.
1
What are the main problems related to foundation
of human rights?

CONCEPT OF HUMAN RIGHTS

Today, for many people the concept of human
rights is obvious, self-evident and definite.
They do not experience any challenge regarding
the definition, source or even the theoretical
foundations of human rights. The foundations of
the rights regime seem to us solid that the act of
Figure 1.3 invoking rights in itself seems to make you right
(Clapham, 2007, 17). On the other hand, some

6
 1
Human Rights

claim that the concept of human rights suffers us that it is not true. Some challenges as ambiguity,
from indefiniteness, and needs to be clarified and subjectivity and indefiniteness of the concept of
defined urgently. If not, it may become dangerous human rights result from taking the concepts of
(Kuçuradi, 2013, 5), in the sense that, everyone human rights of the international human rights
uses the same term but with different meanings and instruments for granted.
it raises various problems in theory and practice of
human rights. important

Some scholars rely on the international

human rights documents in deciding which
rights are human rights.

But on the other hand, international human

rights documents seem to be a relatively reliable
source to derive or to test our conception of human
rights. The Universal Declaration of Human Rights,
especially its first article provides us a concept of
human rights and a concept of human being. “All
human beings are born free and equal in dignity
Figure 1.4 and rights. They are endowed with reason and
conscience and should act towards one another
This induces theoretical or philosophical in the spirit of brotherhood” (Article 1). And
problems regarding the definition and criterion in Article 2, the core of idea of human rights,
of human rights, and some practical problems namely being equal in dignity and rights, has been
regarding the realization of human rights. stressed by means of clarifying that everyone is
Therefore, the clarification of the concept of human entitled these rights and freedoms set forth in this
rights has been one of the main theoretical issues Declaration, without distinction of any kind, such
for philosophers for a long time. To have a clear as race, colour, sex, language, religion, political and
concept of human rights has been considered a key other opinion, national and social origin, property,
for responding the question which rights should birth or other status.
be included in human rights and which are not. “A human rights, then, is a general moral
This critique is named generally as the problem of right that every human being has: sometimes it
criterion for human rights. finds legal expression and protection, sometimes
not. The legal variability does not undermine the
existence and firmness of moral right, and actually
Relying on the Universal Declaration provides focus for contemporary human rights
of Human Rights activism” (Orend, 2002, 33-34).
Some relying on the clarity and reliability of
international human rights documents like Universal important
Declaration of Human Rights are keen to see the
rights mentioned in these documents as a criterion Human rights are moral rights that every
for human rights. The answer of the question which human being has only because of being a
rights consist of human rights is believed to be member of the human species.
found in the Universal Declaration of Human Rights.
Do we really rely on the international human rights
documents in deciding which rights are human
rights? Taking a close look into the theoretical Human rights are the moral rights of every
disputes over the human rights will demonstrate human person regardless of his/her nationality,
race, religion and gender, and irrespective of their

7
1
Philosophical Foundations of Human Rights

codification. These rights express some necessities These objections force us to tackle the different
related to each human being. Everyone has basic uses of the concept of human rights and get a clear
and inalienable rights due to his/her biological concept of it that we need to prevent human rights
nature. Human rights are the moral rights of every violations we face in every corner of the world.
human being because of his/her being a member of When people speak of human rights, they picture
the human species. “Human rights are understood the different sides of human rights discourse,
as a kind of universal moral rights that belong activists usually refer to human rights practice or
equally to all human beings simply by virtue of the movements, human rights scholars refer mainly
fact that they are human. What makes a person conceptual or theoretical problems of human rights.
the holder of these rights is that he/she is a human Thus, both of them aim to protect human rights in
being… As stated in the Universal Declaration of their own ways. “Two dimensions of human rights
Human Rights, ‘all members of the human family’ work exist and should, in principle, be integrated
hold human rights” (Tepe, 2014, 60). with one another. This integration, however, can
prove difficult in practice. For activists, the pressure
of rescuing fellow human-beings from actual and
Different Meanings of Human Rights imminent injustice relegates theoretical questions
Even though this core of the idea of human to a low priority. Those who look up philosophers
rights has been generally preserved in the human and political theorists for assistance may be
rights discourse, the concept of human rights has disappointed for the theoretical disputation is
meant different things to different people. “For inconclusive. Thus, there is a gap between human
some, invoking human rights is a heartfelt, morally rights activism and theory” (Freeman, 1994, 491).
justified demand to rectify all sorts of injustice;
Theory of human rights focuses on the
for others, it is no more than a slogan to be
theoretical or conceptual challenges to the idea
treated with suspicion, or even hostility. Lawyers
of human rights, the definition of human rights
sometimes consider that human rights represent
and human nature with an inquiry on ethical
almost a term of art, referring to the details of
foundation of human rights that frames the main
accepted national and international human rights
issue for human rights theorists.
law (…) To some, it means ensuring that everyone
is treated with respect for their inherent dignity
and human worth. To others, it means that judges, important
the police, and immigration officials are required
to protect the interests of terrorists, criminals, and The idea of human rights is introduced as the
other undesirable elements at the expense of the successor to another highly theoretical term
security of the population” (Clapham, 2007, 2). of ‘natural rights’.

“It is not that we must now come up with a

definition of the term ‘human rights’—some form
of words more or less synonymous with the term,
or a list of essential features. It is not clear, even,
that the component term ‘right’ is definable in that
sense, although several contemporary philosophers
offer a definition or something close to it. Many
terms have satisfactorily determinate senses, not
because they can be defined, but simply in virtue
of having a fairly well settled use. But the term
‘human rights’ has a largely unsettled use. It is a
Figure 1.5 theoretical term, introduced as the successor to
another highly theoretical term, ‘natural rights’—
introduced, though, without much in the way

8
 1
Human Rights

of necessary background. We may not need own value. This amounts to protect individuals
definition, but we certainly need more in the for the sole reason that they are human beings”
way of explanation. The job of philosophers and (Kuçuradi, 2013a, 5-6).
jurisprudents and political theorists in our time is The idea of human rights possessed by every
to remedy the indeterminateness—to do what the human being simply and only for being a member
Enlightenment failed to do (Griffin, 2008, 18). of humanity leads to the idea that all human
beings are equal in dignity and rights, because
important
having rights has been reduced to only being a
member of the human kind. This idea of human
The term ‘human rights’ has a largely rights implies that every individual belonging to
unsettled use. this species should treat, and should be treated by
others in a manner that everyone may actualize his/
her potentialities or capacities which constitute the
value of human being (Kuçuradi, 1995, 81). In
Kuçuradi’s Concept of Human Rights Kuçuradi’s words, human rights are principles or
A new concept of human rights that rests on demands according to which we should act (active
an account of human being is introduced by I. perspective) and according to which we should be
Kuçuradi. As an idea of the human mind, “human behaved (passive perspective) (Kuçuradi, 2013d, 57).
rights express some necessities, related to each Human rights are not the demands related to the
human being. These necessities appear as demands groups in which individuals live, but rather to the
to recognize and observe the value of the human individuals.
being, i.e., they appear as demands to protect
“Human rights are rights of the individual…
individuals for the sole reason that they are human
Though with respect to each individual they are
beings” (Kuçuradi, 2013a, 5). Kuçuradi answers
interrelated and form an indivisible whole, as
the question why human beings need a special
demands, they show some remarkable differences:
protection by pointing out the value of human
a part of these demands is connected directly
being which is the result of having some properties
with human potentialities, another with the
and potentialities different from other livings or
preconditions necessary for their development, in
creatures. Kuçuradi’s concept of human rights is
general, while another part of them is connected
grounded on the idea that the human being is a
with certain (changing) conditions. For this reason,
valuable or dignified being because of having these
to restrict the term of ‘human rights’ to the first two
potentialities in him/his nature. “By the term of
kinds of demands and to include in the concept of
‘the value of the human being’” Kuçuradi points out
human rights the interdictory demands concerning
the special place of this being among other living
the security of the individual and/or the so-called
beings (Kuçuradi, 2013a, 5).
“fundamental freedoms”, as well as the demands
“Thus to protect these ontical properties of related to the preconditions for the protection
the human being in individuals, to develop his of human potentialities in general (rights such as
potentialities in individuals, becomes the cause of the right to a standard of living adequate for one’s
mankind and is also the task of each individual. On health, the right to education, the right to work,
the other hand, this protection of the potentialities etc.)” (Kuçuradi, 2013a, 7).
of the human being becomes the right of every
Human rights that may be violated or protected
individual belonging to the species called human:
by the state or persons should be distinguished
the possibility to develop these potentialities must
from the citizenship rights granted only to citizens
be secured also for him or her….
of a country. Kuçuradi claims that human rights
These demands to protect in individuals the are the rights of individuals, but not all the rights of
potentialities proper to the human being only an individual are human rights (Kuçuradi, 2013a,
constitute the inalienable human rights…. To ask 7). Thus, she does not consider all individual rights
for the protection of these potentialities for each as human rights and distinguishes human rights
individual is but asking for the safeguard of our from rights given or supplied by a state. While all
place in the universe; it is the will to protect our human rights aim to protect the value or dignity

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Philosophical Foundations of Human Rights

of the human being, some are directly related to state, the raison d’être of which is to protect these
the realization of potentialities of a human being, rights, we are facing with oppression. Kuçuradi
whereas others are related to the preconditions argues that the reason of these insecurity and
needed for these potentialities to be fulfilled, and oppressions we face almost everywhere around the
others still are related to other variables. world is the failure of national states in protecting
human rights or basic rights.

2
Should we speak of various concepts of human
rights instead a concept of human rights?

Figure 1.6 CONCEPT OF HUMAN NATURE

The concept of human rights consists of two
concepts as human and rights, and it relies on a
Kuçuradi limits the term of ‘human rights’
concept of man or human nature. These are the
only with these first two kinds of demands, so
rights of a human person, special only to each
the security of the individual and/or the so-called
human being. This leads us to look into the concept
“fundamental freedoms”, as well as the demands
of human or human nature, but some scholars as
related to the preconditions for the protection
B. Orend, do not regard it as a necessary job of
of human potentialities in general (rights such
philosophical inquiry being convinced that we yet
as the right to a standard of living adequate for
know it well. “One cannot say ‘human rights’, of
one’s health, the right to education, the right to
course, without saying both ‘human’ and ‘rights”.
work, etc.) included in the concept of human rights
The assumption will be made, for now, that there
(Kuçuradi, 2013a, 7). The demands of the first
is no need to define exhaustively what a human
kind are considered to be directly connected with
being is: we are, I suggest, rather well acquainted
the exercise of human potentialities which are
with such creatures” (Orend, 2002, 15). But some
supposed to be possessed by each person.
others including Kuçuradi, Höffe and Nussbaum
“What they demand is that individuals should consider the concept of human or human nature
not be hindered while exercising activities proper necessary on the assumption that the idea of
to the human being only. They demand the human rights supposes a concept of human being.
protection of rights which cannot be given (by a
We agree that human rights are derived from
state), but can only be respected (or violated) in
‘human standing’ or ‘human nature’, but have
individuals by individuals…Since we can speak
virtually no agreement about the relevant sense
of protection of these rights only when there are
of these two supposedly criteria-providing terms
attempts to violate them… Rights such as -to use
(Griffin, 2008, 16). As we do not possess a clear-cut
the conventional wording- liberty and security of
concept of human rights as it has been demonstrated
the person and its implications and freedoms, such
above, also we do nothave a clear concept of human
as of thought, opinion, expression, and peaceful
being or human nature. The idea of human rights
association fall under this category of rights”
presupposes a concept of human being (or human
(Kuçuradi, 2013a, 7).
nature) regardless of different approaches to its
When all these rights possessed by human beings identification. To talk about human rights leads
are respected and protected in a given country or us to think on the concept of “human being” or
state, “there the related freedoms exist” (Kuçuradi, “human nature”, and to search for answers to the
2013a,8). In the countries where these rights are questions as “What is a human being?” “What does
not protected, insecurity becomes dominant. In human nature involve?” “What does the concept of
the countries where these rights are violated by the ‘human nature’ mean?” “Is there a human nature?”

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Human Rights

“Is it possible to separate human nature as primary law: act only in accordance with that maxim through
and secondary, the one is owned naturally from birth which you can at the same time will that it become a
and the other one is acquired by actions?”. universal law.
To have the capacity to act according to the
important
moral law or law of reason consists of human nature
in Kant’s theory of man. Being endowed with reason
The idea of human rights presupposes a makes possible to act ethically and it differentiates
concept of human being or human nature. man from other creatures which are not able to act
ethically due to their biological nature.
Due to the ambiguity of the term nature, to
The question whether there is a human nature use the concept of “human being” may help us
cannot be answered unless having clear concepts of to avoid some critiques directed at the concept
human nature and human being. The concept of of “human nature”, but it will not eliminate the
human nature consists of two terms ‘human’ and difficulties in identifying what consists of human
‘nature’. To clarify the meaning of the term human beings. “Generations of philosophers have argued
nature forces us to search for the answers to the that all human beings are essentially the same,
questions: “What does human being or human nature that is, they share the same nature, and that
mean?” or “What does the concept of ‘nature’ mean?” this essential similarity is extremely important.
Periodically philosophers have proposed to base the
essential sameness of human beings on biology…
The Historical Roots of the Concept all organisms that belong to Homo sapiens as a
The concept of human being has been one of biological species are essentially the same” (Hull,
the oldest and contentious concepts of philosophy. 1986, 3). Some people discuss whether human
From Ancient Greek up today, philosophers beings have any feature or property shared by all
have searched for an answer the question “what human beings or not. For some, all human beings
does human being mean?” In the Republica, share some features in common. For others, a
Plato manifested how political life can be fair by particular tendency special to human species
answering the questions of “What is justice?” and determines their behaviours. Some others think
“Who is a just person?”. In the Nicomachean Ethics, that the tendency only disposes or inclines them
Aristotle, who is a student and follower of Plato, to behave in a certain manner. “On the one hand,
manifested why happiness should be politician’s human being is indissolubly bound up with his
main aim in his virtuous actions. Fundamentally, body, but on the other hand he is not identical
both of them aimed to respond the question of with his body, but is different from it. Whereas we
“What is a human being?” in obtaining a good can say of an animal that it is his body, we have
polity for the city or society. Afterwards, the to say of the human being that he has a body”
question related to human nature was tackled by (Bayertz, 2003, 138). Some distinguish “natural
Immanuel Kant in the 18th century as an ethical human nature” from “artificial human nature”.
and a political problem. Kant put forward a new “(a) From the parochial viewpoint of a determinate
question “What is a human being?” which includes individual or a determinate generation, the human
the three main questions of philosophy in itself, body is regarded as a predetermined (matter of )
namely the questions “What can I know?”, “What fact; it is “nature” in the sense of natura naturata.
should I do?” and “What may I hope?” The distinction between the “natural” and the
Kant defines human being as a dual creature “artificial” is certainly plausible and meaningful
who belongs to both the world of phenomenon in this context: that which is found is “natural”,
and noumenon. This kind of duality means that (whereas) that which has been changed is
man is endowed with reason, meanwhile with “artificial”. (b) On the other hand, if we regard
desires. Kant distinguishes between theoretical nature from the perspective of a distant observer,
and practical reason, thinking and willing. As a then it appears to be an evolving system and the
creature endowed with reason, man is able to act human being is a -particularly- active part of this
ethically according to the law of reason or moral system; he influences many elements of this system,

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Philosophical Foundations of Human Rights

including his own body, with his behavior. So there “nature” of a human being that he is not only (as
is no reason to view the changes he makes to this are animals) subject to evolutionary change, but
body as less “natural” then changes which, for changes himself; in this respect he is “by nature
example, birds make to their environment through artificial” (Bayertz, 2003, 140). The properties are
nest-building. If one proceeds from a (“holistic”) not only culturally or socially derived, inherent
picture of nature as a system embracing human in each human being. Humans born in a specific
beings and developing historically, then we are cultural community and with a particular color,
taking the classical concept of “nature” as a natura gender, speak a specific language, growing up in
naturans as our starting point. Within this concept, a specific social milieu, getting a social identity,
a differentiation between “natural” and “artificial” living together in peace, must work to stay alive
is clearly pointless” (Bayertz, 2003, 136). and so on. However, humans possess several other
All human beings share some common features properties that they share in common with animals
by virtue of being human. In spite of our numerous like eating, drinking, growing, sexuality etc.
differences, there is something that we can call a
important
common human nature, by which we can call each
other as a human being. Human beings can think,
will, judge, build theories and myths, generate The concept of human nature is used in
ideas, formulate concepts, have desires, can be different meanings.
educated or educate, set up a state, generate the
ideas, use language, remember their past and make
future plans, fantasize. Further, they have moral or The Challenges Related to the
nonmoral emotions as love, hate, self-esteemed, Concept of Human Nature
dignity and vanity. That human beings universally The concept of human nature has different
share these emotions, capacities and dispositions meanings. Sometimes it denotes the certain basic
constitutes the human nature. Different cultures properties that all human beings come to share in
may prioritize different human faculties, may common, and stress the diversities and differences
encourage different emotions, capacities and from other species. Sometimes human nature refers
feelings, however human beings do not have to to certain properties or capabilities that are shared
be prisoners of their cultures. Having the faculty by all human beings including capacities, desires,
of critical reflection and wisdom can draw up dispositions or tendencies to act in specific ways.
to act differently, try out different experiments, The concept of human nature generally implies
develop different capacities, feelings, emotions, that all human beings share certain properties in
dispositions, reconstitute themselves in their own common as their species heritage.
unique ways. “If one is to take philosophical
conjecture literally he will observe that man has The difficulties with defining “human nature”
been by nature a political animal; a social animal; arise mainly from the concept of “nature”. “The
a bio-social animal; a social animal; a selfish, term ‘nature’ effectively serves the purpose of its
cunning animal; an economic animal; a religious modern users, combining two complementary
creature shaped in the image of the Creator; and senses or dimensions: on the one hand, it refers
not an animal at all” (Mitchell, 1972, 23). to the world as it is given (rather than artificially
contrived); on the other, it means the essential
These properties shared only by the humans aspects or properties of human beings” (Heyd,
constitute their species heritage and they belong to 2003, 151). The difficulties that arise regarding an
human beings by nature and “from birth”. Human adequate definition of human nature lead some to
beings begin their history endowed with a specific dispense with the question of what a human being
set of properties which came their species nature is or what constitutes human nature. But, human
appeal to natural evolution. They acquire to engage being or “human nature, accordingly, becomes
in a creative interaction with their environment a necessary assumption for any meaningful
and to change it in harmony with their needs for discussion of what human beings are, and more
developing and changing both of themselves and pertinent to our present concern, what they ought
their world. It is asserted that “characteristic of the to be” (Heyd, 2003, 152).

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Human Rights

Although it seems necessary for ethics and ontological-anthropological approach of Kuçuradi

human rights to be based on the idea of human are trying to define human being without using the
nature or human being, it is not easy to answer term human nature, and without claiming to be
the questions what a human being is, and which an ultimate definition. The Capabilities approach
properties or capabilities are special to human is not a theory of what human nature is, and it does
species. We see different concepts of human nature not read off from innate human nature. Instead, it
in ethics and politics, and depending on our asks, among the many things that human beings
definition of human nature, we arrive at different might develop the capacity to do, which ones are
views on whether we can have a clear conception the really valuable ones, which are the ones that a
of human being. Though the idea of human minimally just society will endeavor to nurture and
nature mainly focuses on those characteristics that support?” (Nussbaum, 2011, 28).
all human beings share, it has been used also in Although Nussbaum and Amartya Sen
different meanings. do emphasize the close relationship between
In conclusion, the question of human nature capabilities and human rights, they do not use the
refers to various aspects of human beings. It capabilities approach as a device for the justification
refers sometimes to “those characteristics and of human rights; instead, they find this relation
capabilities which only the human being possesses more complicated. Nussbaum believes that the
and which therefore distinguish him as a specific capabilities approach can clarify the concept of
creature … [It] includes above all human beings’ human rights and inform people about the goals
capacity for reason and speech and capacities for in public policy (Tepe, 2014, 71). I. Kuçuradi
intentional action, responsibility, etc., which arise differentiating human potentialities from human
from it. It is precisely because the capabilities … phenomena or characteristics raises a new concept
, as a whole, those which define the human being of human being which serves a ground for her
as a specific creature, that they have frequently concept of human rights.
been identified with ‘human nature’ in the history
of philosophy. … We are talking here about
another new concept of ‘human nature’, and so
as not to fall into total conceptual confusion, 3
we should speak here of ‘human essence’ rather
Does the concept of human rights rely on a
than ‘human nature’ ” (Bayertz, 2003, 137-138).
concept of human nature or human being?
But sometimes it refers to human needs which
constitute the basis of human rights, sometimes
to some potentialities or capacities besides some
basic properties (Tepe, 2014, 65-66). CONCEPT OF HUMAN DIGNITY
Even though no human rights theory can work Though some argue that the concept of human
without relying on a concept of the human being, dignity in moral theory goes back to the ancient
the concept of human being still remains to be Greek philosophy, it is seen as a concept of modern
obscure and contentious. If arrived, a convenient philosophy in the sense of we use today it. The
concept of the human being can serve as a criterion defense of rights has a longer history than the
and justification tool for human rights, but it cannot history of concept of dignity which began in the
be seen as an “ultimate problem-solver” or ultimate revolutions in Britain in the seventeenth century,
justification of human rights. The concept of proceeded in America and France, continued in
human being conceived as having some capabilities Kantian philosophy, and developed further in J.
special to human being developed by M. Nussbaum Rawls political philosophy and D. Dworkin’s legal
and A. Sen and the concept of human being who theory in the twentieth century. But the idea of
consist of some properties and potentialities proper human dignity figures in it only to a minor extent,
to human being developed by I. Kuçuradi, may be the only exception in its history is Kant’s political
seen as new accounts of human being to overcome and moral philosophy, and he is considered as the
the difficulties related to concept of human being. major thinker of human dignity or value (Katleb,
The capability approach of Nussbaum and Sen, and 2011, 2-3).

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Philosophical Foundations of Human Rights

The Problems with Dignity

important
“The difficulty with dignity has to do with
what it refers to, with what it itself rests on.
Some human rights thinkers indicate the Some supporters of dignity view, referring back
concept of human dignity as an ultimate to a point … the elements of a good justification,
justification for human rights. might suggest that it rests on nothing. The appeal
to human dignity is itself the resting point-is itself
the foundation for the justification of human
It has not been an issue only in philosophy, but rights. So the concept of human dignity refers
also in jurisprudence as a fundamental principle, to nothing outside itself ” (Orend, 2002, 87).
and in bioethics. It is actually hard to identify Nevertheless, we cannot leave it aside or consider
the concept of human dignity which is often it as a postulate that is taken as being true and
referred for the justification of human rights. used a starting point for a course of reasoning, if it
“Many in the human right field cite a concept plays so a crucial role in the human rights theory.
of human dignity as an ultimate justification “The idea of human dignity encompasses more
for human rights. Why respect human rights? than a role in the defense of rights; there is a place
Because to fail to do so violates human dignity” in it for the dignity not only of individuals but
(Orend, 2002, 87). An intimate link between also of the human species as one species among
human dignity and human rights is frequently all the others” (Katleb, 2011, 3). That forces us to
noticed in the human rights literature. In the tackle the concept of human dignity and to clarify
International Covenant on Civil and Political its meaning. To use the dignity as a foundation
Rights is stated that the rights enumerated or justification of human rights necessitates a
“derive from the inherent dignity of the human philosophical clarification of it.
person”. Many authors (e.g., Pollis and Schwab,
1980, 4-8; Legesse 1980, 132; Harkin, 1979,
15; Said, 1977) go so far as to treat human rights
and human dignity as essentially equivalent
concepts (Donnelly, 1982, 303). Human rights
are considered as tools in protecting dignity of
all human beings equally. That every human
being is equal in dignity and rights constitutes
the core of human rights idea. To talk on human
rights without referring human dignity or value
seems to be pretty difficult. Though it plays so
an essential role in human rights discourse, it
suffers from indeterminateness and uncertainty Figure 1.7
which leads some human rights scholars to
dispense it in human rights discourse and take
it for granted. But, if we want to keep on using Katleb’s Concept of Dignity
the concept of human dignity in grounding or Katleb introduces an account of human
justifying the idea of human rights, we have to dignity which seems to portray the general use
analyze and clarify it. of the term of human dignity. “The core idea of
human dignity is that on earth, humanity is the
important greatest type of beings—or what we call species
because we have learned to see humanity as one
That every human being is equal in dignity species in the animal kingdom, which is made
and rights constitutes the core of human up of many other species along with our own—
rights idea. and that every member deserves to be treated in
a manner consonant with the high worth of the
species” (Katleb, 2011, 3-4). He indicates Pico

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Human Rights

della Mirandola’s speech On the Dignity of Man Kuçuradi’s Concept of Dignity and Its
(1486) as the first writing in which the core Relation to Honour and Pride
idea is found early, but then there have been a Another concept of human dignity has been
number of revisions and elaborations. The doubt presented by I. Kuçuradi as an ethical basis for her
is sometimes expressed when human dignity is concept of human rights. Kuçuradi sees human
introduced into later discussions of rights, even rights as an idea or a conception of the human
when human rights are accepted as defensible mind, the conception that human beings should
and conducive to human interests (Katleb, be treated in a special way that makes it possible for
2011, 4). every human being to actualize such potentialities
Katleb works with the assumption that we can of the human being. The idea of human rights is
distinguish between the dignity of every human justified by means of human dignity or the value of
individual and the dignity of human species as a man through which all human beings are declared
whole. Even though to speak of the dignity of the to be equal. Every human being is considered as a
human species as distinct from individual dignity valuable or dignified one because of having some
is to invite more skepticism and even hostility, he potentialities in him/his nature. “By the term of
wants to defend species dignity while admitting ‘the value of the human being’ ” she indicates the
that human beings are generically given to mad special place of this being occupies among other
presumption in their enterprises and exploits, living beings. What provides this special place
whether at the expense of nature or of one another. to him/her is the entirety of his characteristics,
He makes another assumption, that the dignity his potentialities which distinguishes him from
of every individual is equal to that of every other; other living beings. They are the activities special
which is to say that every human being has a status to human being and some products of these
equal to that of all others. The idea of individual activities. Kuçuradi calls these as properties human
dignity thus applies to persons in relation to one being possesses in addition to those which he has
another (Katleb, 2011, 5-6). in common with other living beings. And those
He claims that status and stature belong properties or potentialities constitute the value of
together in one concept of human dignity. “The human being or his dignity (Kuçuradi, 2013a, 5).
concept of equal individual status is only part of
the idea of human dignity; the other part is the important
stature of the human species. What is more, as I
will suggest, status is only part of the defense of the The properties and potentialities special to
theory of human rights; the other part is the public human species constitute the value or dignity
morality of justice” (Katleb, 2011, 9-10). of him/her
Katleb considers the human dignity as an
existential value; value or worthiness is imputed
to the identity of the person or the species. He
To protect human dignity depends on each of
stipulates that when the truth of identity is at stake,
us and the knowledge of conscious of being first of
existence is at stake; the matter is existential. The
all a human being and aware of our human identity
idea of human dignity insists on recognizing the
whatever all our other identities might be. “We
proper identity of individual or species; recognizing
protect or damage human dignity, but our own
what a person is in relation to all other persons and
human dignity, by what we do and not by what
what the species is in relation to all other species
we suffer, since we are responsible for what we do
(Katleb, 2011, 10).
and not for what others do to us. What we do, or
important refrain from doing, depends on each of us, i.e. ,
acting in accordance with human dignity in our
relations with other human beings is a problem in
Katleb considers the human dignity as an
our ethical relation with ourselves, in spite of the
existential value.
fact that our actions are directed to somebody else”
(Kuçuradi, 2013e, 99).

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The concept of human dignity was used in with ourselves. However, human dignity is not a
different meanings in various contexts. Convicted kind of feeling related with ourselves. “ ‘Honour’
that conceptual connection between human denotes the esteem paid to the worth, or assumed
rights and human dignity is not sufficiently clear, worth, of an individual. This worth can consist
Kuçuradi tries to demonstrate this connection by of ethical specificities of a person- of his virtues,
means of clarifying both the concept of human …; but it can also be considered to be consist of
rights and human dignity through the concept correspondence of an individual’s behaviour to the
of the value of the human being. Also, she value judgement prevailing in a culture” (Kuçuradi,
differentiates dignity from other concepts with 2013e, 102).
which it is often confused in everyday life, such Honesty and honour are both sharing the
as honour and pride that leads to the belief that same etymon. “‘Honesty’ can be conceived as the
there are different perceptions of human dignity in identity (the sameness) of what someone wants to
different civilizations or cultures (Kuçuradi, 2013e, realize by an action and what he carries out … An
99-100). honest person is a person who treats others what he
Conceiving human rights as the objective wants for them, and does not expect, … something
conditions to actualize human potentialities ‘to return’ to himself. He is the one who protects
which constitute the value of humanity as species, human dignity. Such a person is honourable person,
Kuçuradi calls human rights ethical principles or whether he is honoured or not. He is honourable
norms which tell us how each and every human because he acts in accordance with human dignity”
being should treat others, and be treated from (Kuçuradi, 2013e, 102-103). She claims that what
others, so that every human individual can realize differs from culture to culture is this conception of
the potentialities who has as a human being. And honour which is often confused with the concept
what she calls as “human dignity” indicates the of human dignity.
awareness of the value of the human being. What
makes every human being worthy to be treated
is this value, so that he or she can actualize such
potentialities of human being that are special 4
to human species. Consequently, she claims
How can you identify the concept of dignity and
that human dignity consists of philosophical or
differentiate it from the concept of honour?
anthropological knowledge of the value of human
species, the knowledge of its certain specifications
and of achievements in the history of human
species. And this knowledge which helps a human CULTURAL RELATIVISM AND
individual become conscious of being human and UNIVERSALITY OF HUMAN
aware of his or her human identity, oblige everyone RIGHTS
to treat all human beings in accordance with this Universality of human rights has been a
value of human being (Kuçuradi, 2013e, 101). contentious issue from the birth of human rights.
Thus, human dignity differs from the concepts The universality claims for some principles or
of “honour” or “glory”, “honesty” and “pride”. norms faced with some reactions which deny the
“Glory” is different from human dignity as an possibility of any universal norms or principles
important moral term and it has similar meaning on the ground of cultural diversity. After the
with “honour”. “…The use of ‘glory’ to terms like announcement of the Universal Declaration of
‘rights’, ‘obligations’, and ‘values’ in some particular Human Rights, the universality claim of human
bright and shining array… ‘Dignity’ differs from rights has been one of the most referred issues
‘glory’, of course, in that its presence in our moral in the human rights discourse. The question of
vocabulary is not the result of any individual’s willful whether human rights are universal is considered
effort to bring grandeur, pomposity and mystical as a question related to the possibility of human
obscurity into moral philosophy” (Waldron, 2014, rights. If there is any universal norm, then we can
2) Honour as individual feelings and pride is also a speak of universal human rights as ethical principles
feeling which has to do with an individual’s relation or norms.

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Human Rights

“Human rights as an international political Donnelly’s Concept of Universality

project are closely tied to claims of universality. … Donnelly begins his analysis of universality by
The 1993 World Human Rights Conference, in the distinguishing the conceptual universality implied
first operative paragraph of the Vienna Declaration by the very idea of human rights from substantive
and Programme of Action, asserted that ‘the universal universality, the universality of a particular
nature of these rights and freedoms is beyond conception or list of human rights. Conceptual
question’. Attacks on the universality of human universality is in effect just another way of saying
rights, however, are also widespread. And some that human rights are, by definition, equal and
versions of universalism are indeed theoretically inalienable. “Conceptual universality, however,
indefensible, politically pernicious, or both” establishes only that if there are any such rights,
(Donnelly, 2007: 281). Donnelly speaks of different they are held equally/universally by all. It does not
senses of the term “universal” in human rights; show that there are any such rights. Conceptually
besides anthropological and ontological universality, universal human rights may be so few in number or
he mentions from functional, international legal specified at such a high level of abstraction that they
and overlapping consensus universality. The sense are of little practical consequence. And conceptual
of universality that he considers philosophically universality says nothing about the central question
and politically indefensible is the anthropological in most contemporary discussions of universality,
and ontological universality. He emphasizes that namely, whether the rights recognized in the
universal human rights, if they are understood Universal Declaration of Human Rights and the
in the first sense as functional, international legal International Human Rights Covenants are
and overlapping consensus universality, will leave universal. This is a substantive question” (Donnelly,
considerable space for cultural particularity and 2007, 282-283). The substantive universality that
other forms of diversity and relativity. deals with substantive questions of human rights, is
not concern of J. Donnelly. He also dispenses with
important the ontological and anthropological universality
which claims to provide a single trans-historical
Conceptual universality, however, establishes foundation for human rights. The ontological
only that if there are any such rights, they are universality in the sense that a moral code may be
held equally/universally by all. It does not objectively correct and valid at all times all places
show that there are any such rights. seems to him implausible and politically unappealing
(Donnelly, 2007, 293). He favours the overlapping
consensus which gives human rights multiple
grounds rather than rendering them groundless.
Regardless of its analytical and philosophical virtues
or shortcomings Donnelly finds it very useful and
convenient (Donnelly, 2007, 293). But he argues
for a relative universality of human rights relying on
the assumption that ideas are relative to historical
conditions in which they emerge. “The universality
of human rights is relative to the contemporary
world. The particularities of their implementation
are relative to history, politics, culture, and particular
decisions. Nonetheless, at the level of the concept,
as specified in the Universal Declaration, human
rights are universal. The formulation “relatively
universal” is thus particularly apt. Relativity
modifies— operates within the boundaries set by—
the universality of the body of interdependent and
indivisible internationally recognized human rights.
Figure 1.8 But that universality is largely a universality of

17
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Philosophical Foundations of Human Rights

possession—universalism above all draws attention (around 1780 BCE), right through to the natural
to the claim that we all have the same internationally law traditions of the West, which built on the
recognized human rights—rather than a universality Greek Stoics and the Roman law notions of jus
of enjoyment” (Donnelly, 2013, 105). gentium (law for all peoples). Common to each
of these codes is recognition of certain universally
valid principles and standards of behavior. These
Objections to the Idea of Universality behavioural standards arguably inspire human
Some scholars of human rights are very rights thinking, and may be seen as precursors to,
skeptical to the idea of universality departing or different expressions of, the idea of human rights
from cultural relativist point of view. Dembour - but the lineage is not as obvious as is sometimes
asserts confidently that human rights are not suggested” (Clapham, 2007, 16).
universal. “In my view, the concept of human
The first serious charge to universal validity of
rights conspicuously lacks ‘universal universality’ –
human rights comes from the “cultural relativism”
at the very least their supposed universality does
as a variant of ethical relativism. The cultural
not exist across times and places. There is thus
relativism denies the possibility of truth and validity
perhaps a sense in which the conclusion to the
of moral norms relativizing all moral judgements
second question asked in this book is foregone:
about social behaviour to each culture’s prevailing
human rights are not universal, the concept is
belief about them (Kao, 2011, 11).
flawed, we should not believe in it, and that is the
end of the matter” (Dembour, 2007, 3). And the
problem of universality of human rights is not
new as she indicates the deficit noted by Marxists.
“The problem of a universal deficit is also noted
by Marxists and feminists, though from a different
angle. For Marxists, human rights lack universality
because they primarily benefit the bourgeois; for
feminists, because women are excluded from their
definition and implementation. Interestingly
the feminist critiques advocate solutions which
fall either within or outside liberal parameters”
(Dembour, 2006, 6).
Figure 1.9

The Challenge of Cultural Relativism

The cultural relativist arguments are against Justification of Human Rights Norms
the existence of any universal values and ethical Instead of the Claim of Universality
norms, and they identify human rights as merely To answer the question whether human rights
and inherently Western (Kao 2011: 11). “The are universal or not, we need first to clarify what
historic development of the concept of human we mean with universality. Going from the word
rights is often associated with the evolution of ‘universal’ of Universal Declaration of Human
Western philosophical and political principles, Rights, human rights have been regarded universal
yet a different perspective could find reference or universal moral norms without recognizing
to similar principles concerning mass education, the different senses of the word ‘universal’.
self-fulfilment, respect for others, and the quest Considering human rights as ethical principles
to contribute to others’ well-being in Confucian, for the treatment of individual person, Kuçuradi
Hindu, or Buddhist traditions. Religious texts such analyzes human rights norms in according to their
as the Bible and the Koran can be read as creating epistemological specificities and proposes talking
not only duties but also rights. Recognition of on the justification of human rights norms instead
the need to protect human freedom and human of universality. Departing from the assumption
dignity is alluded to in some of the earliest codes, that human rights norms are not propositions of
from Hammurabi’s Code in ancient Babylon knowledge in the sense that they have no object

18
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Human Rights

independent of those who put them forth and made valid worldwide, by the necessary formal
they cannot be neither true nor false, she tries procedures, every kind of norm” (Kuçuradi,
to elaborate their epistemological specificities. 2013d, 58). Kuçuradi dispenses with the term of
She differentiates human rights norms from the universality for human rights and identifies what
cultural, moral or legal norms which are norms is meant when it is used in the sense of universal
of behavior relative to the existing conditions and human rights: the worldwide validity of human
aim to establish or safeguard any order in those rights norms. “The term ‘universal’ is assumed
conditions at the moment they are deduced. usually to denote in this context ‘worldwide
Many traditional and customary ways of behavior valid norms’, not the specificity of a kind of
transmitted from generation to generation in norm distinguished from other kinds of norms.
a given culture belong to this kind of norms (In the Universal Declaration, for example, the
(Kuçuradi, 2013d, 55). The norms which are word ‘universal’ qualifies the Declaration, not the
relative to the cultures in which they are deduced norms) (Kuçuradi, 1995, 77). She calls attention
by induction from empirical conditions, are to different usages of the term universal, and
only this kind of norms. But “human rights identifies the nature of human rights norms as
norms (principles) deduced, in given historical norms deduced from the value of human being
conditions, from the knowledge of the value of which leads to so-called worldwide validity of
certain human potentialities. They express the human rights. And in this sense of universality,
general preconditions deemed necessary for the she seems to be a supporter of universality of
actualizability of those human potentialities. They human rights.
bring demands for the treatment of every human
being. The so-called ‘universality’ of human rights
is the specificity of theirs, and not, as it is usually
assumed, its worldwide validity. This specificity 5
is also reason why we should do everything How can you respond to the critique of cultural
to make these principles valid worldwide as relativism to the universality of human rights?
much as possible, provided that we re-evaluate
our international instruments, since we can

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Philosophical Foundations of Human Rights

Explain the concept of human

LO 1 rights.

Since 1945, the term human rights has witnessed an unprecedented expansion and gained a gorgeous
recognition in the international relations. But it has also faced some problems or objections related to its
philosophical foundations. Today, some questions dealing with the theoretical and ethical foundations of
human rights remain contentious. The concepts of human rights and human being have been criticized
and charged with being unclear or indefinite. Some speak of human rights concepts instead of a concept
Summary

of human rights. To talk on the concept of human nature is regarded futile because of difficulties in
getting a clear concept of human being. Also, the concept of dignity supposed to constitute the ethical
foundation of human rights has been another concern of human rights theories. The universality claim of
human rights has faced different objections due to so-called the vagueness or indefiniteness of the concept
of universality, and the objection of cultural relativism has been the most powerful critic of universality.

Identify the Problems Related

LO 2 to Philosophical Foundations of
Human Rights.

Philosophers and political scientists have strived for a clear concept of human rights on the assumption
that a clear and definite concept of human rights will help to overcome the theoretical and practical
difficulties that pose a threat to human rights today. Though they have expressed with same words, they
meant different things when they speak of human rights. The core element that we meet in these different
concepts of human rights is the idea that everyone has some fundamental rights only because of being a
human being. This idea has grounded on the assumption that every human being is born free, and equal
in dignity and rights. Possessing equal dignity and rights has been considered the ethical ground of the
idea of human rights.

Describe the concept of human

LO 3 nature and its problems.

As we do not possess a clear-cut concept of human rights, also we do not have a clear concept of human
being or human nature. But to talk about human rights leads us to think on the concept of “human being”
or “human nature”, and to search for answers to the questions as “What is a human being?” “What does
human nature involve?” “What does the concept of ‘human nature’ mean?” Human nature, accordingly,
becomes a necessary assumption for any meaningful discussions of what human beings are, and more
pertinent to our present concern, what they ought to be. The concept of human being has been one of the
oldest and contentious concepts of philosophy from Plato and Aristotle to Kant and M. Nussbaum, and
received several answers in different centuries. Because the difficulties in the concept of nature, and the
different meanings of the question are related to human nature, it has never reached a clear-cut response.

20
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Human Rights

Clarify the concept of human

LO 4 dignity.

The core idea of human dignity is that on earth, humanity is the greatest type of beings, and that every
member deserves to be treated in a manner consonant with the high worth of the species. Katleb considers
the human dignity as an existential value; value or worthiness is imputed to the identity of the person
or the species. He stipulates that when the truth of identity is at stake, existence is at stake; the matter is
existential. The idea of human dignity insists on recognizing the proper identity of individual or species;

Summary
recognizing what a person is in relation to all other persons and what the species is in relation to all other
species. But some others, as Kuçuradi, rest on a different conception of dignity based on a distinct account
of human being and of value. Every human being is considered as a valuable or dignified because of having
some potentialities in him/his nature. “By the term of ‘the value of the human being’ ” Kuçuradi indicates
the special place of this being occupies among other living beings. What provides this special place to him/
her is the entirety of his characteristics, his potentialities which distinguishes him/her from other living
beings. They are the activities special to human being and some products of these activities.

Evaluate the claim of universality

LO 5 and the objections of cultural
relativism.

Even though the Vienna Declaration and Programme of Action asserted that ‘the universal nature of these
rights and freedoms is beyond question, the universality claim of human rights has faced with harsh
objections, and the main critique comes from the cultural relativism. They stressed the cultural grounds of
every human rights norm and rejected every claim of universality that intents to be valid for everyone in
every corner of the world. The cultural relativist arguments are against the existence of any universal values
and ethical norms, and they identify human rights as merely and inherently Western. However, looking at
the origins of human rights norms may show us that human rights norms are (or should be) derived from
the knowledge of the value of human being different from the cultural norms which find their origin in
a specific culture. The human rights norms (principles) are deduced, in given historical conditions, from
the knowledge of the value of certain human potentialities. They bring demands for the treatment of
every human being. The so-called ‘universality’ of human rights is the specificity of theirs, and not, as it is
usually assumed, its worldwide validity. The challenge to universality originating from cultural relativism
can be responded by means of proposing an alternative conception of justification instead of universal (as
Kuçuradi) validity or differentiating the various meanings of universality (as Donelly).

21
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Philosophical Foundations of Human Rights

1Which one of the problems below cannot 6 Who developed a concept of human being
be counted among the problems related to the which refers to some capabilities special to a
philosophical foundation of human rights? human being?
A. Universality A. Kant
B. Validity of norms B. Kuçuradi
Test Yourself

C. Human rights violations C. Orend and Clapham

D. Obscureness of the concept of human nature D. Nussbaum and Sen
E. Indefiniteness of the concept of human rights E. Donnelly

2 Which of the declarations below makes 7 What was the reason of some philosophers or
reference to freedom of religion, person and property? political scientists to dispense with the concept of
A. American Declaration of Independence dignity?
B. American Bill of Rights A. Indeterminateness and uncertainty of the
C. Universal Declaration of Human Rights concept.
D. The French Declaration of the Rights of Man B. Clarity of the concept.
and Citizen C. Its being a concept of antiquity.
E. Magna Carta D. Its being a concept of philosophy.
E. Its being well known.
3 When does a concept become dangerous as
to Kuçuradi? 8 Who is the holder of dignity according to
A. When nobody knows it Katleb?
B. When everybody knows it well A. Humanity
C. When it is unknown to some people B. Living creatures
D. When it is used everyone but with different C. Individuals and human species
meanings
D. Individuals
E. When it is used everyone with the same meaning
E. Human species
4 Why are human rights considered as moral 9 According to Kuçuradi, what is the meaning
rights that every human being has?
of the concept of “human dignity”?
A. Because of being a citizen of a state
B. Because of being a refugee or an asylum seeker A. the awareness of the value of the human being
C. Because of being a free and autonomous person B. the value of human species
D. Because of being a member of the human C. the value of a person
species D. the awareness of being human
E. Because of being a living creature E. the ethical awareness

5 Why does Orend consider it unnecessary to 10 Which version of universality is theoretically

define the concept of human nature? indefensible according to Donnelly?
A. Because we all know human being well. A. Functional universality
B. Because we are not well acquainted with human B. Anthropological and ontological universality
being. C. International legal universality
C. Because the concept of human nature is D. Overlapping consensus universality
undefinable. E. Relative universality
D. Because we have enough accounts of human
nature.
E. Because we cannot have a definition of human
nature.

22
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Human Rights

If your answer is wrong, please review the

1. C 6. D If your answer is wrong, please review the
“Problems Related to the Foundation of
“Concept of Human Nature” section.
Human Rights” section.

Answer Key for “Test Yourself”

If your answer is wrong, please review the
2. B 7. A If your answer is wrong, please review the
“Problems Related to the Foundation of
“Concept of Human Dignity” section.
Human Rights” section.

3. D If your answer is wrong, please review the 8. C If your answer is wrong, please review the
“Concept of Human Rights” section. “Concept of Human Dignity” section.

If your answer is wrong, please review the

4. D If your answer is wrong, please review the 9. A
“Cultural Relativism and Universality of
“Concept of Human Rights” section.
Human Rights” section.

If your answer is wrong, please review the

5. A If your answer is wrong, please review the 10. B
“Cultural Relativism and Universality of
“Concept of Human Nature” section.
Human Rights” section.

Suggested Answers for “Your Turn”

What are the main problems related to
foundation of human rights?

The idea of human rights has faced with various doubts and objections which
compel it to turn on its philosophical grounds and response these doubts and
critiques. Noticing that the concept of “human rights” means different things
in different historical and cultural contexts, the concept of human rights has
been frequently challenged as relative and subjective. And that prompted some
scholars to search for an objective criterion for human rights and on the question
of universality of human rights. In the eighteenth and nineteenth century, some
your turn 1 European philosophers focused on the idea of “human rights’ or ‘rights of man”
as a body of rights which should be based upon a concept of human being.
But there was no clear answer to the question what human being is, even the
possibility of an answer of that question and the necessity of a concept of human
nature for human rights have not been clarified. Also, the concept of dignity
supposed to constitute ethical foundation of human rights was controversial as
it was considered indispensable for any justification of human rights.

23
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Philosophical Foundations of Human Rights

Should we speak of various concepts of human rights

instead a concept of human rights?
Suggested Answers for “Your Turn”

The concept of human rights suffers from indefiniteness. We encounter different

concepts of human rights both in theoretical debates and in international
documents of human rights. Many voices the same term, but mean different
things, and that raises various problems in theory and practice of human rights.
your turn 2 Therefore, the clarification of the concept of human rights has been one of the
main theoretical issues for philosophers for a long time. To have a clear concept
of human rights has been considered a key for responding the question which
rights should be included in human rights and which are not. This challenge
used to be called the problem of criterion for human rights.

Does the concept of human rights rely on a concept of

human nature or human being?

Though the concept of human rights consists of two main concepts as human
(being) and rights, and the idea of human rights necessitates a holder, some
don’t regard it necessary to talk on a concept of human nature or human being
assuming that it will be a futile and endless effort to get a clear concept of
human nature. They claimed that there is no need to define exhaustively what
a human being is on the assumption that we are rather well acquainted with
such creatures. But some others including Kuçuradi, Höffe and Nussbaum
your turn 3 consider necessary to research on a concept of human or human nature on the
acceptance that the idea of human rights supposes a concept of human being.
The concept of human rights rests on a concept of human being, whether it
may be seen idle or not. We cannot have a concept of human rights unless
supposing or resting a concept of human nature. Then the question what is
human being has been the main issue for philosophers who finds this question
significant and is worthy of searching. Today, we have various conceptions of
human being on which the concept of human rights may rest.

24
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Human Rights

How can you identify the concept of dignity and

differentiate it from the concept of honour?

Suggested Answers for “Your Turn”

That every human being is equal in dignity and rights constitutes the core of
human rights idea. To talk on human rights without referring human dignity
or value of human being seems to be pretty difficult. Though it plays so an
essential role in human rights discourse, it suffers from indeterminateness
and uncertainty which leads some human rights scholars to dispense it in
human rights discourse and to take it for granted. Human dignity” indicates
the awareness of the value of the human being. What makes every human
being worthy to be treated is this value, so that he or she can actualize such
potentialities of human beings that are special to human species. Kuçuradi
your turn 4 claims that human dignity consists of philosophical or anthropological
knowledge of the value of human species, the knowledge of its certain
specifications and of achievements in the history of human species. And
this knowledge which helps a human individual become conscious of being
human and aware of his or her human identity, and oblige everyone to treat all
human beings in accordance with this value of human being. But the concept
of ‘honour’ denotes the esteem paid to the worth, or assumed worth, of an
individual. This worth can consist of ethical specificities of a person- of his
virtues; but it can also be considered to be a correspondence of an individual’s
behaviour to the value judgement prevailing in a culture.

How can you respond to the critique of cultural

relativism to the universality of human rights?

We can respond to the critique of universality by indicating different uses of

the concept of universality, as Donnelly speaks of different senses of the term
“universal” in human rights. He mentions functional, international legal and
overlapping consensus universality besides anthropological and ontological
universalities. The sense of universality that he considers philosophically and
politically indefensible is the anthropological and ontological universality.
your turn 5 The other response to the challenge of universality comes from Kuçuradi who
drives her attention to the origins of human rights. And she demonstrates that
human rights norms (principles) are deduced, in given historical conditions,
from the knowledge of the value of certain human potentialities. They bring
demands for the treatment of every human being. The so-called ‘universality’
of human rights is the specificity of theirs, and not, as it is usually assumed,
its worldwide validity.

25
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Philosophical Foundations of Human Rights

References
Bayertz, K. (2003). Human Nature: How Normative Kuçuradi, I. (1995). Human Rights: The Idea, The
Might It Be? Journal of Medicine and Philosophy, Demands and The Instruments In I. Kuçuradi
28(2), 131–150. (Ed.), The Idea and Documents of Human Rights.
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Berry, J. C.(1986). Human Nature as a Universal
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Clapham, A. (2007). Human Rights A Very Short
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Kuçuradi, I. (2013b). .Philosophy and Social Injustice.
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Donnelly, Jack (2013). Universal Human Rights in
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Nussbaum, C. Marta (2011). Creating Capabilities,

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27
 The Historical Background of
Chapter 2 the Idea of Human Rights
After completing this chapter, you will be able to:
Learning Outcomes

Identify the medieval understandings of justice

1 2
Identify the ancient Greek conceptions of and natural law and compare the medieval
justice and distinguish between natural law conception of natural law with that of Ancient
and conventional law Greek philosophy

3 4
Distinguish Kantian Universalism and
Differentiate the concepts of right and natural Bentham’s Utilitarianism and describe Paine’s
law of the contractarian theories rights of man

Key Terms
Chapter Outline Justice Property
Introduction Rights of Man Liberty
Classical Origins of the Idea of Human Rights Human Rights Security
The Concept of Religious Justice in Medieval Power General Will
Natural Law Society
Philosophy
Natural Right The Law of Nature
The Contractarian Theories in Modern Philosophy
State of Nature Rights
Other Contributions to the Concept of Right Social Contract Positive Law
Sovereignty

28
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Human Rights

INTRODUCTION by its derivative dikaiosyne, Plato’s fundamental

Throughout the history of humanity, people virtue as justice. For example, in Hesiod’s Works
have fought for rights, in addition to having duties and Days, animals eat one another, but Zeus gave
and responsibilities in their society. Societies have humans dike, i.e., law and justice. So, dike was a
set several rules for themselves in order to regulate regulative principle legally. The word dike and
their lives. And these rules are questioned by its derivative form dikaiosyne came to embody
philosophers according to their compliance with a a concept central to Greek moral and political
number of ethical and political concepts, such as philosophy (Havelock, 1978, 13).
the concept of justice.
important
The idea of human rights did not appear until
1789. After the French Revolution, the idea of
human rights first emerged in the Declaration of The word translated as ‘justice’ is dike in
the Rights of Man and of the Citizen in 1789. the Ancient Greek language. And, dikaios
“The idea of ‘rights’ – specifically, ‘human rights’ which means just, comes from dike. Also,
– is of fairly recent vintage. Therefore, there is no dikaiosyne generally used by Plato consists
explicit mention of ‘rights’ in the works of Plato of the terms of dikaios and -syne which
and Aristotle. What are now called ‘human rights’ forms abstract nouns from the adjectives
were referred to by Enlightenment philosophers and nouns. The original meaning of dike is
such as Locke and Rousseau as ‘natural rights’, and literally a way or path in which a certain class
the classical eighteenth-century conception of the of people usually behaves, or normal course
‘Rights of Man’ traces its philosophical lineage to of nature (Guthrie, 1960, 6).
the Scholastic doctrine of natural law, which, in
turn, finds its intellectual origins in the thought These philosophers consider justice and
of Aristotle and the Greek Stoics and in the moral injustice as if they are universal laws or laws of
teachings of Judaism and Christianity” (Winston, nature rather than concepts created by humanity.
1989, 3). But Heraclitus apprehends that justice and injustice
Although the discourse on human rights is were man-made, and that God does not care about
probably a modern problem, the idea behind the either. For that reason, for many Presocratic Greek
concept of human rights can be traced back at least philosophers, happiness consists in living according
as far as ancient philosophy. Therefore, we first to nature or the universal law.
need to see some basic concepts as right, justice,
law, etc. during the history of thought, starting important
from the ancient times.
Early Greeks consider justice
and injustice as if they are
CLASSICAL ORIGINS OF THE
universal laws.
IDEA OF HUMAN RIGHTS
Greek philosophy is a convenient starting point
to uncover the origins of human rights. Indeed, we After Presocratic philosophers, the sophists
need to look at the history of the concepts of natural were interested in human, society and political
law and justice in ancient Greek philosophy, if we affairs rather than nature. Their most important
want to examine the original beginnings of the idea characteristic was the critical attitude towards
of human rights. In Ancient Greek philosophy, to knowledge, truth and laws. They believed that
distinguish changing things from unchanging ones knowledge is relative and that social rules are not
is considered an important issue. And the law of universal and immutable. Accordingly, the laws, the
nature is seen as universal, immutable and eternal a virtues and the morality must have been relative,
set of regularities or of repeated patterns. and changeable. Hence, for the sophists, if the truth
is changeable, then the norms such as religious and
The ancient Greek word for law and justice was
moral rules, and the laws will be also plastic. As a
dike. By the fourth century BC., it was replaced
result, they come up with the idea that all laws which

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The Historical Background of the Idea of Human Rights

are man-made can change and they used the term Since the reason is immutable and eternal, the
‘nature’ against custom and law. But Socrates and Roman Stoic Cicero remarks that the only genuine
Plato used this term in order to combat sophists’ law is reason and that we should live in conformity
moral relativism (Douzinas, 2000, 27). with reason. The reason, with its imperatives, thus
The Sophists set physis, which means natural, calls humans to put into practice their obligations
against nomos, which means social law, and they and nobody or no government can change this law.
set individual opinions against tradition. They also Therefore, the right and justice are based on nature,
considered that the nomoi (plural case of ‘nomos’ and the sources of rights and laws should be found in
in Ancient Greek) are social conventions and laws, nature. On that account, for Stoics, the government
and not a part of the natural order (Douzinas, of a city-state should be organized according to
2000, 27). The idea that social laws are changeable nature or natural law, because the natural law is
leads to the idea that there should be something superior to any man-made law. With Cicero, the
else that does not change. Before the Sophists, this source of natural law had been God, and the idea of
conception had already been put forward by the God thus emerged in the stage of history.
Presocratics. But with the Sophists, an opposition To sum up, despite some divergences, classical
between physis and nomos has emerged which leads philosophers considered nature as a criterion to find
us to the idea of natural law. In other words, it was out the right and put the nature against ancestral
asserted that conventional laws are changeable but authority and customs as conventions.
natural laws are not.
The most important contribution to the idea of Plato (427-347 BC)
natural law was the account of the Stoics. “The most
Plato was a follower of Socrates. He stated his
dramatic mutation in the early relationship between
political views, namely, his understanding of the
physis and nomos was introduced by the Stoics”
justice (dikaiosyne) and the state, in his famous
(Douzinas, 2000, 31). The Stoics claimed that
work called Republic. The question of justice or the
people have certain rights by nature. In addition,
concept of justice is at the center of his philosophy,
they placed natural law at the center of ethics and
especially in his Republic. Plato, who speaks through
politics. Also, they raised questions about the best
Socrates in his dialogues, is an advocate of justice
policy to make a person virtuous presuming that an
as the right order in a city (polis). In his Republic,
individual can only be happy in a society.
Plato distinguishes between justice in an individual
and in the state, but indeed the justice is seen as a
important
human virtue in both cases (Plato, 1997a, 980).

In philosophy, the happiness of an individual

is the subject of ethics, but the happiness of a
society is the subject of politics.

Since the starting point of the Stoics was nature,

they asserted that a person should live according to
nature to be virtuous and happy person. “The Greek
Stoics and their Roman counterparts, notably Cicero
and Seneca, were keen to talk about being citizens
of the world” and for them, “wise and rational Figure 2.1 Plato
men belonged to a universal community of world
citizens” (O’Byrne, 2013, 28). According to Laertius, important
every living thing wants primarily to protect itself in
nature and the nature provides the most competent
Plato’s Republic is in the form of a dialogue,
power to every being for this purpose. For human,
just as the other works of Plato; and he speaks
this power is reason; and if one lives by using his
through Socrates in his many dialogues.
own reason, he will live in accordance with nature.

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Human Rights

“The philosophical Republic is a program for if every class of a society or every part of a state
the best polity, and it must be constructed by the fulfills its own and proper task. By saying ‘to do
philosopher who, in using reason, clarifies and one’s own thing’, Plato means that all citizens do
promotes the requirements of human excellence properly their assigned role (Havelock, 1978, 320).
according to nature” (Douzinas, 2000, 35). Plato Accordingly, justice is the fulfillment of the duties
thinks that no polity can survive, if it does not and obligations of each class in the society.
apply natural right to politics. Plato’s theory of
forms had been decisive on his other philosophical important
views. He states that concepts like justice, state and
good exist as ideas in the intelligible world. So, According to Plato, justice is
when Plato talks about a state, he means an ideal the fulfillment of the duties and
state or the idea of state. obligations of each class in the society.

important
Plato thinks that if each and all do their
The Sophists had distinguished between own tasks, injustice will not occur in a society.
nature and customs, but Plato made a Conversely, only if each class does their own duties,
distinction between the physical and the the state will be just. Therefore, justice is regarded
intelligible world. According to the Sophists as the master virtue, because the existence of the
nature is perfect, immutable and eternal, other virtues depends on justice.
whereas according to Plato ideal beings are
important
perfect, immutable and eternal.

Plato considers justice as a master

Plato considers the idea of justice in two different virtue in comparison with other
contexts. For him, there is the same number and virtues.
the same kinds of classes as are in the city are also
in the soul of each individual. He says that “a man
If governors enact the laws wisely and rationally;
is just in the same way as a city” (Plato, 1997a,
the auxiliaries enforce the laws courageously; and
1073). Hence, the divisions of the state correspond
producers act and demand in a moderate way, the
to divisions of the soul. But since analyzing soul
society or the state will be just. According to Plato,
seems to him difficult, he decides first to inquire on
justice is the political expression of the good and its
the state, and then to clarify the nature of justice
essence does not appear in the written and spoken
in the individual. The closest meaning of justice is
laws and customs, its essence lies only in the idea
stated when Plato compares the constitutions of an
of state. Socrates’ death is the strongest argument
ideal state (city) and of soul and “they both follow
about the injustice of the law for Plato (Douzinas,
the principle of ‘doing one’s own and proper task’”
2000, 36). Due to Socrates’ death, Plato criticized
(Douzinas, 2000, 35). Plato sees three classes in
the all conventional and traditional understandings
a state. The classes of a state are rulers (governors
of the law in his Republic.
of the state), auxiliaries (soldiers or defenders)
and producers (farmers, artisans, etc.). “The important
perfection of the parts and their harmonious and
proportionate relationship makes the city just and
the citizen virtuous” (Douzinas, 2000, 35). Plato For Plato, the laws of a city should be
thinks that each class has its own virtue. Therefore, established according to the ideas of
he categorizes the fundamental virtues as wisdom, good and justice.
courage and temperance, and then he added
justice as another fundamental virtue. For Plato, In his seventh letter, Plato thinks that all parties
justice is at the center of other three fundamental in a city should obey the laws by respect and by
virtues; that is, a society or a state will be just, only fear. For him, if the victorious party “controls itself

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The Historical Background of the Idea of Human Rights

and enacts laws for the common good, considering its own interests no more than those of the vanquished,
the defeated party will be doubly constrained, by respect and by fear, to follow the laws” (Plato, 1997b,
1656). This is the only way to bring disorders of a city to an end; otherwise, “it will continue to be divided
within itself by strife and enmity, hatred and distrust” (Plato, 1997b, 1656). Plato advised that when
governors enact laws, they consider only the common good of the whole city.
Plato’s theory of justice thus can be considered as both an ethical
important
and political doctrine. And Plato declares that democracy along with
other polities is not appropriate for the fulfillment of idea of justice.
According to Plato, the best polity According to him, justice, as an idea, can take place only in a state
is the monarchy which is governed arranged according to the idea of justice. The closest polity to an ideal
by a philosopher king. state is the monarchy where a philosopher king rules.

Aristotle (384-342 BC)

Aristotle was one of Plato’s students, but his
philosophical doctrine is different from Plato’s. “Aristotle’s
Nicomachean Ethics starts and ends with political
concerns. At the beginning at his work, Aristotle says that
the inquiry he is about to begin is ‘sort of politics’; and at
the end of the work, he suggests that the reader should
complete the study of the humanities by studying different
political systems. According to Aristotle, the political and
social setting is crucial for the virtue and happiness for the
citizens” (Gottlieb, 2009, 191). Therefore, for Aristotle,
the polis (city state) is necessary and natural for the good
Figure 2.2 Aristotle
of all citizens, and the state also aims at the happiness of
its citizens. Moreover, since human beings are not self-sufficient and they need others in order to be self-
sufficient, the state is essential for the realization of one’s own abilities (Gottlieb, 2009, 192).
According to Aristotle, the state is essential not only for the
important
realization of happiness and self-sufficiency, but also for the
realization of justice. “Every state is as we see a sort of partnership,
and every partnership is formed with a view to some good (since all According to Aristotle, human
the actions of all mankind are done with a view to what they think beings are not self-sufficient, and
to be good). It is therefore evident that, while all partnerships aim they need others in order to be
at some good, the partnership that is the most supreme of all and self-sufficient; therefore, the state is
includes all the others does so most of all, and aims at the most necessary for human beings’ abilities
supreme of all goods; and this is the partnership entitled the state, and also for the realization of justice.
the political association” (Aristotle, 1959, 3). He believes that the
state is a political union for the good of all. He contrasts it with what is contrary to nature; namely, his aim
is to distinguish “between what is natural and what is contrary to nature, that is, between what is natural
and what would be merely conventional” (Gottlieb, 2009, 193).
Aristotle, devoting the whole book of Nicomachean Ethics to
important justice, describes two kind of justice: “general justice, which includes
the whole of ethical virtue ‘as it relates to another’; and particular
According to Aristotle, the state justice, which is a particular ethical virtue and has its own sphere.
was established for the good of There are also two types of particular justice: distributive justice and
all. The purpose of the state is the corrective justice. In addition, there is equity (Gottlieb, 2009, 87).
happiness of all its citizens. Both general (universal) and particular justice concerned with the
good of others. Therefore, his Politics call justice as a communal virtue
and Aristotle indicates that justice is to be sought for its own sake.

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Human Rights

Aristotle’s conception of political justice cannot conception of equality, justice includes treating
be separated from his understanding of individual equal persons equally, and treating unequal persons
justice. According to his understanding of individual unequally. This is the principal of the distributive
justice, a just person does not share anything more justice. Therefore, distributive justice requires that
to himself than anyone else. For Aristotle, justice the goods and benefits be distributed to individuals
is the totality of virtue, namely, it includes the in proportion. “The rightful judgement distributes
other moral virtues. In the Nicomachean Ethics, he proportionately things to people, gives them their
says that “in justice is every virtue comprehended” fair or just share according to the pattern of right
(Aristotle, 2009, 81) and adds that “it is related relationships” (Douzinas, 2000, 39).
to another” (Aristotle, 2009, 82). “The best man
is not he who exercises his virtue towards himself, important
but he who exercises it towards another; for this
is a difficult task. Justice in this sense, then, is not According to Aristotle,
part of virtue but the whole of virtue, nor is the equality is logically superior
contrary injustice a part of vice but the whole of to justice, because without
vice” (Aristotle, 2009, 82). equality, there is not a justice.

important
Aristotle differentiates two kinds of political
justice: one is natural and the other is legal
In Aristotelian ethics, moral virtues or
or conventional. Aristotle means that certain
ethical virtues are the means (intermediate
features of a political or legal system are based on
cases) between two other vices, one
nature, while others are due to human creation.
involving excess, and the other deficiency.
According to Aristotle, just things by nature are
just everywhere. For example, killing a person falls
against justice in every society. On the other hand,
conventional justice is determined differently in
the different societies. For example, the price or
internet
punishment of a crime will be different in each
Aristotle’s Ethics: https://plato.stanford.edu/ society due to their laws. And Aristotle states that
entries/aristotle-ethics/ nature rather than laws provides the criteria for
identifying which political system is the best. He
According to Aristotle, general justice is related claims that legal justice is not just everywhere
to the political system, the law and social morality. because political systems are not the same
General justice refers to lawfulness, and it is related everywhere; still, only one political system is by
to the common good and happiness of political nature the best everywhere (Gottlieb, 2009, 198).
community. Also, the concept of general justice Consequently, for Aristotle, the state enables
supports the distinction between the just and humans to be both virtuous and vicious and the
unjust. Since the law is related to human beings, aim of a state is not remedy pre-existing defects,
“the just and the lawful may coincide.” On the but to allow virtue and vice to develop (Gottlieb,
other hand, an unjust person is against the law, and 2009, 194). In the Aristotelian teleological natural
he takes more than his due. But Aristotle adds that order, justice is indispensable for the perfection of
breaking the law is unjust only if the law is rightly human beings.
enacted (Douzinas, 2000, 38). Although justice is
independent of human thought, distributive and
rectificatory justices depend on the law and the
The Stoic Natural Law, Roman Stoics
political system. Also, the particular justice must be and Cicero
considered on the basis of the concept of equality According to the Stoics, nature contains a
because particular justice, especially the distributive universal and immutable law and this cosmological
one, means equality or fairness. According to the law (logos) is divine. Stoics think that the divine

33
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The Historical Background of the Idea of Human Rights

law is valid in all aspects of the world, even in reason, in accordance with nature known to all,
the human world. This Stoic understanding is unchangeable and imperishable, it should call men
also followed by the Roman Stoics. “The Romans to fulfill their duties by its precepts and deter them
adopted the Greek approach to justice and Roman from wrongdoing with its prohibitions. He thinks
law developed into the most advanced ancient legal that breaking this law is unholy, amending it is
system. The Latin word for justice and law derived illicit, repealing it is impossible. We cannot give up
from the same root, their semantic field is the same this law by the order either of senate or of assemblies
in Greek and Latin (dikaion and jus for right/law; of people. Also, he added that we do not need to
dikaiosyne and justitia for justice). The Roman jus, look for anyone to clarify or interpret it. This law
like the Greek dikaion, was both lawful and the just, is valid everywhere and every time, because this
the aim of the jurist in each dispute was to serve law is eternal, and it binds all people and all ages.
justice by aiming at the just solution” (Douzinas, According to Cicero, all virtues and human beings
2000, 47). Like Greek’s dikaion, Roman’s jus are subject to natural law and humans can discover
also refers to all citizens’ civic duties and rights. the natural law by their reason.
According to Romans, the just is something which
is fair and the just is the object of justice. Therefore, important
“Aristotelian concepts of legal justice survived and
thrived in Rome, where the Stoic ideas of natural For Cicero, the law of reason is the
law, simplified and transformed by Cicero, were only criterion for justice because it is
also applied for the first time. As the Greek city- the divine law of nature and it binds
states started dissolving, first in the Macedonian all people and all ages.
and later in the Roman Empires, the idea of a law
common to all imperial subjects, of a jus gentium
started to take hold” (Douzinas, 2000, 49). Therefore, nature is claimed to be the origin
The main interest of the Stoics was not political of justice. “The law, human institutions, rules and
philosophy, but their reflections on the morality of all worldly order proceed from a single source”
universal humanity also determined their political (Douzinas, 2000, 51). Thus, nature became a moral
philosophy. And they derived all political norms and political principle which enforces humans to
and rules from rational human nature. obey its universal law.
Like Plato, the Stoics believed that there were
four basic virtues: wisdom, courage, temperance
and justice. For Marcus Aurelius, a Stoic thinker,
justice was the most important of the four virtues 1
and it was the source of the other three virtues. Compare Plato’s concepts of justice and rights
According to Cicero, justice is the principle which with Aristotle’s and indicate how they relate these
constitutes the bond of the human society and concepts to the state.
the fundamental bond of the commonwealth. For
him, the state (Res Publica) means the property
thing of people, namely the state was a community THE CONCEPT OF RELIGIOUS
associated with one another by agreement on law. JUSTICE IN MEDIEVAL
Cicero also considered the natural law (jus naturale) PHILOSOPHY
and asserted that law is the highest reason rooted The early Greek philosophers take for granted
in the nature (Douzinas, 2000, 49). Cicero believes that nothing comes from nothing. But with the
that all humans are bound to the Gods by their birth of Christianity, it is believed that God created
reason and that all humans are born equal. Their the world from nothing. “Christianity claimed
equality comes from nature or divine law. The laws that the world had been created ex nihilo [from
that are enacted by nature must be good and just, nothing] through the free act of God. Nature, the
unjust laws do not come from nature. For example, invention of Greek philosophical imagination, was
the laws which are enacted and enforced by tyrants turned into the creation of an all-powerful being”
are not just. For Cicero, the true law is the law of (Douzinas, 2000, 53). Since God was the creator

34
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Human Rights

of nature, the source of universal law was sought Thomas Aquinas (1224-1274)
in God. Medieval philosophy developed under the Another Medieval philosopher, Thomas
influence of Christianity discussed the concepts Aquinas followed partially the classical theory of
such as law and justice with regards to Christian justice in his works. Unlike Augustine, Aquinas
dogmas. Patristic philosophy (the philosophy was an Aristotelian philosopher in many respects.
of church fathers) used the term ‘natural law’ in He also followed the Stoic philosophy concerning
sense of divine command. Also, the conception of natural law. Aquinas believed that human dignity
human in medieval philosophy is different from the and value are innate properties which are validated
conception of Greek philosophy. First, it conceived according to “natural law” (O’Byrne, 2013, 29).
the human being as a being created by God, unlike According to Aquinas, natural law can be known
in Greek philosophy. Secondly, every individual is thanks to divine light and natural reason can
born with original sin and the human world is full understand this divine law, and one can distinguish
of sin and injustice. between good and evil by means of his own reason.
Also, there is close similarity between Aquinas’
St. Augustine (354-430) justice and Aristotle’s conception of general justice.
For Aquinas, justice is constituted by a reference
According to St. Augustine, a Platonist
to the other person. “The jus as the just outcome
philosopher in the early Middle Ages, the world
is an arrangement of things amongst people that
was brought into existence from nothingness by
respects, promotes or establish the proportion or
God who created human, and the earth is not
equality inherent in them, and these proper relations
eternal, so the earth has both a beginning and
are observable in the external world” (Douzinas,
an end, but man was created to be eternal. For
2000, 57). In all these respects, Aquinas followed
Augustine, there is damnation for all men because
the teachings of Aristotle, but his paramount
of the fall of Adam. In this context, Augustine
and original contribution to jurisprudence
distinguished between the earthly city and the city
was the fourfold distinction between eternal,
of God. He thinks that justice can only be fulfilled
natural, divine and human law with its religious
in the city of God. In accordance with the Platonist
implications (Douzinas, 2000, 57). According to
distinction between the ideal state and real states,
Aquinas, natural law is definite, certain and simple,
Augustine distinguished between the ideal state
and its fundamental propositions are immutable
and the earthly state. For him, the city of God is
owing to the fact that they are formulated by God.
the ideal state and it is superior to any earthly state.
According to Augustine, for example, the Roman
important
Empire was never a truly just political state, because
it was an earthly state and true justice can only be
found in the Christian state of God. “Original sin According to Aquinas, natural law
and the fall of man made it impossible for secular is definite, certain and immutable
law and justice to redeem people from evil” and because it is divine and because it
“justice will always remain a promise that cannot comes from God.
be fulfilled in this life. Justice is a divine attribute
which does not belong to this world” (Douzinas, The principles of divine law and their universal
2000, 55). So, Augustine made the classical theories validity are written in human conscience by God.
of justice compatible with Christian dogmas. These principles come from God because the
existence of the human being comes from God.
According to Aquinas, since human nature is
important changeable and relative, we can make amendments
both in the positive law and the natural law. Natural
According to Augustine, justice is a divine law cannot be formulated in rules or canons and it
attribute, and it does not belong to this does not accept a rigid and fixed formulation. It
world (earthly state), and it can only be offers only general directions about the character
realized in the city of God. of people and the action of the law (Douzinas,

35
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The Historical Background of the Idea of Human Rights

2000, 58). Consequently, Aquinas integrated law THE CONTRACTARIAN THEORIES

and state in divine order through his conception IN MODERN PHILOSOPHY
of relative natural law. Although the state was the
Under the title of contractarian theories, we will
result of the original sin, it was also necessary for
introduce some leading thinkers’ conceptions of
the human part of divine order. Also, the political
natural rights. According to thinkers who advocate
law and its enforcing are necessary for the remedy
these theories, natural rights such as freedom and
of sins. For Aquinas, all political laws were open to
equality are derived from the hypothetical state of
criticism only if they did not follow imperatives of
nature. Some of the most important contractarian
the church (Douzinas, 2000, 58).
theorists to be introduced here are Thomas Hobbes,
According to Aquinas, the state is responsible John Locke and Jean Jacques Rousseau. According
for the well-being and security of its citizens, and to these thinkers, rights are eternal and inalienable
responsible for the relative natural law which as they are natural.
contains necessary rules. By identifying divine
laws with natural law, Aquinas helped turn it
into a ‘technical, rational canon of positive law’ Thomas Hobbes (1588-1679)
(Douzinas, 2000, 58). He said that all men know From Plato to early modernity, philosophy
the truth to a certain extent, at least as to the investigated the best polity for human and the
common principles of natural law and he added teleological reasons of the state and laws. Thomas
that all men are more or less is cognizant of the Hobbes presented a new method for analyzing
eternal law. For Aquinas, justice is a principle of legal foundations and redefined the traditional
participation in the divine order. By eliminating juridical concepts of law, right and justice. He
the strict distinction made by Augustin as the city is also the founder of the modern tradition of
of God and earthly state, Aquinas thus established individual rights and the first philosopher to
mediation between the earth and heaven. replace fully the concept of justice with the idea
of rights (Douzinas, 2000, 69).
William of Ockham (1290-1349)
And the first philosopher to use the concept of a
right (jus) in anything like in the modern sense was
William of Ockham, who thought of natural right
as personal power to conform the right reason,
without an agreement or pact (Winston, 1989,
3). The term jus had been used to in reference
with term justice, but William of Ockham used it
in reference to the power of individual. That let
him to think that individuals have a control over
their life, and it was a kind of right to property.
According to him, this natural property does not
come from an eternal or universal law; it is a basic
fact of human life.

2 Figure 2.3 Thomas Hobbes

Discuss the similarities and differences between
the classical and the medieval views of justice and Hobbes distinguishes between natural bodies
right. and artificial bodies and claims that while the
human being is a natural body, the state is an
artificial body. He thinks that the human body

36
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Human Rights

is like a natural machine, and that political

organization is like an artificial human being
(Hobbes, 1998, 7). In his Leviathan, published
in 1651, “Hobbes claimed that humans are,
essentially, violent and greedy animals and that
in their natural state they live in a world of
anarchy” (O’Byrne, 2013, 29).
According to Hobbes, men naturally desire
freedom and dominion over others and the
condition of war amongst them is necessarily
consequent of the natural passions of men.
Hobbes supposed a hypothetical beginning
that he called “state of nature” in order to
explain the ontological grounding of state. In
Hobbesian philosophy, the state of nature has
only one certain meaning. It is natural because Figure 2.4 Leviathan
the political body (state) is artificial. In the state of nature, there is no government as an authority created
by men. And the state of nature is called a state of war, and in such a war every man is against every other
man; every man is enemy to every other man (Hobbes, 1998, 84). Consequently, every man tries to secure
his own security in the state of war.
According to Hobbes, in this war of all against all, there is no place important
for the notions of right and wrong, justice and injustice. “Where there
is no common power, there is no law and where no law, no injustice”.
Justice and injustice are qualities that relate to men in society, not in Hobbes starts with an assumption
solitude. Individuals give up their freedoms, formulate the laws and of the state of nature that serves
establish the political body (the state) for the sake of their security. They as the necessary basis for the state.
come together to establish a set of rules in order to protect themselves
and their properties. And the state is the appearance of these rules or rather the state is the whole of these
rules. Therefore, the state has a necessary existence for Hobbes. All individuals surrender their personal
freedoms to the state for their securities. Thus, the state is granted the right to rule and the citizens have
a duty to obey (O’Byrne, 2013, 29). The basis of the consensus which Hobbes calls the social contract is
the consent of people. Hobbes thus justifies the necessity of a social contract or the necessity of the state
by appealing to some hypothetical pre-social conditions and essential human nature. In other words, he
justifies the existence of the state according to the assent and the basic needs of the people. According to
Hobbes, the security is the basic and innate right of humans. “In effect, while Hobbes was arguing for the
right of monarch to rule, he was also claiming that the individual subject has the basic right to security,
and that the state itself is formed out of recognition of this basic right.
Indeed, the legitimation of the state derives from its ability to ensure important
the security of its citizens. If it is unable to fulfill this requirement, the
people still have the power to overthrow it” (O’Byrne, 2013, 29-30). In the state of nature there is
Hobbes recognizes that all individuals have natural liberty and no authority, such as the state.
equality in the state of nature. For him, liberty and equality are basic Hobbes defines the state of nature
rights of man coming from nature. Hobbes provides definitions of as the state of war of everyone
concepts such as “the right of nature”, “liberty” and “a law of nature”. against everyone else.
The right of nature, commonly called jus naturale, is the liberty that
each man has to make his own decisions about how to use his own power for the preservation of his own
nature, that is to say, of his own life (Hobbes, 1998, 86). Therefore, we can say that the right of nature
essentially consisted of the right to liberty, which is related to self-preservation. For Hobbes, the liberty is a
basic right coming from the nature. What is meant by liberty is the absence of external impediments. Such

37
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The Historical Background of the Idea of Human Rights

impediments can often take away part of a man’s condition after the state was established. In other
power to do what he wants (Hobbes, 1998, 86). words, people can never take back the rights which
And a law of nature (lex naturalis) is a precept or a were transferred to the political authority by a
general rule, found out by reason, and by which a contract. Accordingly, performing against the state
man is forbidden to do anything that is destructive or breaking the laws cannot be justified, because
of his life or takes away his means for preserving his all individuals transferred their rights voluntarily.
life. Hobbes highlights the difference between the Indeed, it is unjust for citizens to break the law.
rights and the law. Rights consist in liberty to do or Hobbes thinks that the state created through the
not to do, whereas the law determines and binds to contract took the characteristics of natural man
one of them. Therefore, the law differs from the right and his right. According to Hobbes, Leviathan
as much as obligation differs from liberty. They are (State) has absolute power over its subjects and
so different that it would be inconsistent to suppose its sovereignty cannot be restricted. It is the only
that a person had both liberty and an obligation in legislator with respect to the social contract and it
respect of the same action (Hobbes, 1998, 86). is not subject to the law. Its rights are indivisible,
absolute and incommunicable. Also, Hobbes
important defined justice as the obligations to keep promises
and to obey the law. Hobbes is seen as a supporter
Hobbes distinguishes between of the totalitarianism because of the idea that the
liberty and law. Liberty is a right, monarch has absolute power and its sovereignty is
but the law is an obligation. indivisible and that citizens cannot violate the laws.

important
According to Hobbes, the contract made to
quit the condition of war is the mutual transferring For Hobbes, justice is an obligation
of a right. When no contract has been made, no to keep promises and to obey the law,
right has been transferred, so every man has a whereas injustice is to violate the law.
right to everything, so no action can be unjust.
But when a contract is made, to break it is unjust;
and the definition of injustice is simply the For the classical philosophers, the law and the
non-performance of a contract (Hobbes, 1998, right coincide, and justice, another word for right,
95). Once the Commonwealth (State) has been was the object and end of the law. “The two concepts
established, the natural right is transferred to the were so closely connected that they were often used
Ordinance of Sovereign Power. When civil laws are as synonyms, something Hobbes wanted to avoid.
given the task of protecting the rights of individual, Hobbes occasionally confused the two terms,
natural law becomes identical with civil law. but he also presented the relationship as a clear
evolution from the state of nature to civil society.
important
The Hobbesian state of nature has no organized
community and law, except for the natural law of
Since civil laws are given the task of self-preservation. But this law is not ‘properly law’.
protecting the rights of individual, In a radical move, which will irreversibly change
natural and civil law coincide. the concept of justice, Hobbes identified right
with freedom from law and from all external and
For Hobbes, the state is the only authority to social imposition. Laws are not conducive to right
protect the rights which derives from the social because they restrain freedom. But the law of self-
contract. Therefore, the rights of men can only preservation is different: it derives from human
be protected within the state. “For Hobbes, the nature and as such it does not impose external
right to life was essential, and a social contract constraints or restrict liberty” (Douzinas, 2000,
would be void if it did not defend this right” 71). Consequently, Hobbes contributes to the idea
(Ishay, 2004, 85). There is no return to the natural of human rights by presenting the idea of the rights
of man. Although he advocated the absolute power

38
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Human Rights

of the ruler, he also presented some of the basic in 1690, Locke used the same methodology as
concepts of liberal thought, such as the rights of Hobbes, but inverted his predecessor’s conclusions.
man, natural equality of all individuals and the “Rather than rely upon an image of pre-social
social contract. human beings as warlike, greedy and violent, and in
need of a strong state to ensure security, he claimed
that in such a state of nature humans are naturally
John Locke (1632-1704) peaceful, free and mercantile. The state emerges,
John Locke is the leading philosopher of he claimed, solely out of the occasional need for
liberalism and as a contractarian philosopher, he an independent arbiter in any disputes which may
is the first philosopher to suggest that there are arise over trade or property” (O’Byrne, 2013, 30).
such things as natural rights; which are our rights Therefore, Locke puts forth an idea of the rights
by virtue of the fact that we are human (O’Byrne, of man against the idea of a strong state. “Locke’s
2013, 30). Locke’s description of the state of nature natural rights were threefold: life, liberty, and
is different from that of Hobbes. “John Locke’s property; he is thus considered to be the founder
political writings are commonly presented as the modern liberalism” (O’Byrne, 2013, 30).
early manifesto of liberalism and as the opposite
of Hobbes’ ‘totalitarianism’” (Douzinas, 2000, 81). important

Locke states that the basics rights of

man are life, liberty and property.

internet
Locke’s Political Philosophy https://plato.
stanford.edu/entries/locke-political/

Like Hobbes’ political philosophy, the

hypothesis of state of nature was the basis of political
constitution in Locke’s political philosophy. For
Locke, “Want of a common judge, with authority,
puts all persons in a state of nature” and “Men living
Figure 2.5 John Locke together according to reason, without a common
superior on earth, … is properly to state of nature”
important (Locke, 2003, 108). According to Locke, in the
state of nature, people do not try to destroy each
other, because there is a natural law that prevents
For Locke, all humans are
it and this law is the reason. Locke believed that
equal in accordance with the
natural law could be known by reason. The reason
rights which are innate.
and the law of nature coincide; and what the
reason teaches people is that everyone is equal
In the state of nature described by Locke, since and independent from each other. Therefore, no
people have equal rights and these rights are shared one should damage someone else’s life, freedom
by all human beings, all men are not only equal but and property. These three basic rights belong to all
also free by nature. All humans are equal with respect men since the law of nature commanded and the
to the rights they have. These rights are inalienable reason demanded. Accordingly, these rights have a
and cannot be removed by any political authority. foundation independent of the laws any particular
In his Second Treatise of Government, published society.

39
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The Historical Background of the Idea of Human Rights

important right to property is based on the natural property

each man has over his body and skills, his work and
produce. Whenever he makes something with his
For Locke, the right is a power,
own labour, he adds to the object a part of himself
or an authority which individuals
and acquires property rights over it” (Douzinas,
have, and which was granted by law.
2000, 82). The natural property right is limited
in the state of nature, because human beings can
For Locke, no social contract transfers these basic obtain appropriate useful and necessary things for
rights into the state, but it gives only the obligation their self-preservation and happiness with their own
to protect these rights, it also gives the state the efforts. But after the social contract, all restrictions
right to impose punishment. Locke states that over the right to property are relaxed. Human
“political power, then, I take to be a right of making beings can without injury possess more than he can
laws with penalties of death, and consequently all make use of (Douzinas, 2000, 83). Although Locke
less penalties, for the regulating and preserving of states that men are equal to each other in the state
property” (Locke, 2003, 101). According to Locke, of nature, he considers life, liberty and property
in the state of nature, humans have a perfect freedom as basic rights of man, but he does not mention
within the bounds of the law of nature. From the equality as a basic right. He expressed that the
natural state of freedom and independence through government is morally obligated to serve people and
people’s consent, namely through a contract, the to protect their basic rights. According to him, if the
political society is created, and individuals join this government violates these essential and individual
society. The state of nature, for him, is a condition rights people have a legitimate right to rebel.
in which the law of nature is the only sovereign. In For Locke, private property is essential for
the state of nature, everyone is free, and according liberty. Therefore, the greatest purpose of men
to the natural law, no one should harm someone uniting into Commonwealths (the State) and
else’s life, freedom and property. In the state of putting themselves under a government is the
nature, the right to punish someone who opposes preservation of their property in a broad sense.
natural law is also the right that comes from natural According to Locke, the right to property is the
law. Just as there is a natural law to punish a crime most fundamental right, because it includes the
in the state of nature, there is likewise a positive law right to life and the right to liberty, as well as the
to punish a crime in the state of civil society. Also, right to protect one’s own property.
the obligation to comply with the law of nature
continues in the state of society. Additionally, if important
the legislator enacts laws for citizens, these laws
must comply with natural law as well as bind the Locke describes the right to property
legislator itself. “The rules that they make for other’s as the most basic right which includes
men actions must, as well as their own and other’s the other rights of man, such as life
men actions be conformable to the law of nature” and liberty, because life and liberty are
and “the ‘fundamental law of nature being the the objects of property.
preservation of mankind’, no human sanction can
be good or valid against it” (Locke, 2003, 160).
Locke identifies all of life, liberty and goods,
important mentioned here, as possessions, i.e. the objects of
property. People form the civil society by uniting
According to Locke, no human in order to protect their property rights. And this
sanction can be good or valid is the first reason to establish a civil society. The
against the law of nature. second reason for the transition to civil society is
that there is no impartial judge to apply the law
of nature in the state of nature. The third reason
Locke’s three basic rights of man constitute the for the transition to civil society is that there is
grounds for establishing the state. Especially “the no authority to support and apply a judgement

40
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Human Rights

given in the state of nature. On account of all these life, freedom and property, Rousseau also expresses
reasons, in spite of all the goodness of the state of social and economic rights in his theory of social
nature, people do not wish to remain in the state contract. Rousseau thus extended the social contract
of nature and willingly (by their own consents) tradition beyond the individualism of Hobbes and
tend to live in the state of society. After a state of Locke to incorporate the role of community in his
society established, the rights coming from the work The Social Contract, in which he argued that
natural law are ensured by the positive law of the the community must represent the general will of
state. Therefore, the people in the state of society people (O’Byrne, 2013, 31).
assigned their power and freedom, which people
have in the state of nature, to political authority for
the sake of their good. The society established for
this purpose cannot exercise its legislative power
beyond the limits of public interest. Therefore, this
authority can only be used for the benefit of the
whole society. So Locke bases the public sovereignty
on the social contract; and consequently, the rights
of man coming from the state of nature and natural
law were guaranteed by the social treaty.

important

With the establishment of the

state of society, the rights coming
from the law of nature are ensured
by the positive law of the state.

As a result, the aim of laws is to serve the individual Figure 2.6 Jean-Jacques Rousseau
and promote his happiness, in other words, his
desire expressed through his free will. “With Locke, important
the transition from natural law to natural rights and
from the purposeful cosmos to human nature was In addition to Hobbes’ and Locke’s
completed” (Douzinas, 2000, 84). fundamental innate rights, such as
life, freedom and property, Rousseau
also expresses social and economic
Jean-Jacques Rousseau
rights in his theory of social contract.
(1712-1778)
Another thinker who bases the public sovereignty
on the social contract is Rousseau. He did not turn For Rousseau, the first man lived equally,
the social contract into submission to sovereign, freely and happily in the state of nature, and this
but turned it into a common agreement, and he freedom and equality continued until the society
left the sovereignty to the will of the people. In his was established. The emergence of private property
major works, The Social Contract and Discourse on has resulted with the end of natural equality, and
the Origin of Inequality, Rousseau stated his political the state of nature. Because of the rise of natural
thoughts with reference to the concepts of freedom inequality, the concepts of right (just) and injustice
and equality. These two concepts, according to have emerged. The disappearance of natural equality
him, are fundamental rights which nature provides forced people to come together with a contract and
to people. Therefore, his political theory is based on to build the civil society. But as soon as society was
the concept of natural law. In addition to Hobbes’ established by a contract, freedom was completely
and Locke’s fundamental innate rights, such as abolished. Property and inequality are completely
reinforced by this agreement. The establishment

41
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The Historical Background of the Idea of Human Rights

of a state led to the establishment of other states, important

and it led to the wars between the states. But, this
state of war is against the law of nature, for the
According to Rousseau, natural freedom
inequality is not compatible with natural law, since
is replaced by legal or political freedom.
all human beings are free and equal to each other
with respect to the law of nature. It means that all
people are born equal and free by nature. But there
The general will is expressed by law. Whoever
is no way to return to the state of nature again.
does not submit to the general will, the whole
Also, Rousseau claimed that no man has the power
community will force this person to submit to
to alienate his own natural liberty, because they are
the general will. Natural equality and freedom
born as free men; their liberty belongs to them,
in the state of nature is replaced by legal equality
and no one has the right to dispose of it, except for
and political freedom in the social order. Although
themselves (Winston, 1989, 4).
individuals lost much of their possessions in the state
of nature, their profits are much greater in the state
important of society. Consequently, the state should aim to
protect the social and political rights of its citizens;
According to Rousseau, all people are and the social contract establishes equality among
born equal and free by nature. citizens so that all citizens have the same rights.
In Rousseau’s political theory, natural rights of
man are guaranteed as the legal rights of citizenship
The purpose of social contract is the through a requirement of the contract. Since all
preservation of the contracting parties (Rousseau, human beings are equal and free by nature, they
1999, 71). Rousseau describes the solution that the should remain equal and free by social contract in
social contract supplies as follows: “‘Find a form the state of society. “The ‘rights of man’ entered the
association which will defend and protect, with world scene when the two traditions came together
the whole of its joint strength, the person and for a brief symbolic moment in early modernity,
property of each associate, and under which each represented by the writings of Hobbes, Locke
of them, uniting himself to all, will obey himself and Rousseau, by the French Declaration of the
alone, and remain as free as before’. This is the Rights of Man and Citizen and by the American
fundamental problem to which the social contract Declaration of Independence and Bill of Rights”
looks for an answer”. In this form of partnership, (Douzinas, 2000, 18).
each person unites with everyone, but since each
As to the modern doctrine of the rights of man
person depends only on himself/herself and he/
developed by Hobbes, Locke and Rousseau, individual
she still remains free. For Rousseau, in order to be
human beings possess innate or natural rights in the
truly free, man as a moral being must bind himself
state of nature, prior to the state of society. “The
to laws and rules, because laws and rules originate
legitimate power or governments are derived from
from the contract and the contract depends on the
these antecedent natural rights by means of a social
general will of the people. In other words, although
contract or agreement. When the ideas of natural law
the man renounces the right to freedom in the
and natural rights were combined in this way with the
state of nature, man himself binds to himself by a
social contract theory of the state, the idea of natural
contract and thus becomes free. Natural freedom is
rights emerged as a necessary presupposition of the
thus replaced by legal freedom.
theory of the state and as marking both the origins
and limits of all legitimate governmental authority”
(Winston, 1989, 4). Consequently, since individual
human beings possess innate or natural rights in the
internet state of nature, these rights are prior to the state of
Rousseau’s Political Theory https://plato. society, i.e., the rights of man are derived from nature
stanford.edu/entries/rousseau/ and they do not acquire their validity and legality
form the laws of the state.

42
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Human Rights

3
Compare the conceptions of natural right of the
contractarian theories advocated by Hobbes,
Locke and Rousseau, and explain the similarities
and the differences.

OTHER CONTRIBUTIONS TO THE

CONCEPT OF RIGHT
So far, we have seen political philosophers
who have taken naturalist and political aspects of
conceptions of rights. In this section, we will see,
on the one hand, Immanuel Kant’s introduction Figure 2.7 Immanuel Kant
of the modern understanding of human rights as
ethical practice, on the other hand, how Jeremy
Bentham took the concept of right within the important
utilitarian approach. Finally, we will focus on as an
activist, who was an advocate of the right of the For Kant, autonomy is self-legislation.
people to education and social welfare, Thomas
Paine’s view of the concept of rights based on the
concept of man’s rights. For Kant, duty and respect for law are equally
important for both morality and legality. While
moral acts follow the universal law of reason, legality
Immanuel Kant (1724-1804) is to obey laws of the state. According to Kant’s
According to the German philosopher theory of state, the social contract is not a historical
Immanuel Kant, who described the Enlightenment covenant and “all previous versions of the contract
as the “Age of Reason”, reason is the foundation had included references to those characteristics
of all moral actions. For Kantian ethics, humans and drives the theorist considered as natural and
are autonomous beings and are responsible for from which reason drew its principles. For Kant,
their actions. Kantian autonomous subject was all such empirical impurities must be removed
universal legislator and its each particular action as methodologically unacceptable and morally
can be judged by reason or by universal principles. wrong” (Douzinas, 2000, 193-194). Only those
Kant’s Critique of Practical Reason is the foundation maxims, rules and norms which meet the criteria of
of modern jurisprudence (Douzinas, 2000, 191). universality are morally binding. By bringing reason,
According to Kant, morality is not grounded in a freedom and law together, the Kantian revolution
pre-existing idea of the good or it cannot be driven took the ground of law from transcendent divinity
from an external source, such as the law of nature, and assigned it to human beings. For Kant, moral law
contrary to classical views or the contractarian cannot be based on happiness or any other empirical
theories. Kant’s ethical principle or moral law good. Therefore, any particular conception cannot
commands us to follow universality. The moral be a basis of pure principle of state; and a universal
actions of an autonomous agent follow the law of principle of right cannot be based upon happiness,
the categorical imperative: “So act that the maxim but only upon universal principle, such as freedom.
of your will could always hold at the same time as a Kant thought that the distinction between right and
principle of universal legislation” (Kant, 2002, 45). virtue is based on the concept of freedom, but in
This law includes autonomy and self-determination different ways; this distinction makes it necessary
and thus it gives subject his freedom. to divide duties into duties of outer freedom and
duties of inner freedom (Kant, 1996, 534).

43
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The Historical Background of the Idea of Human Rights

important everyone’s freedom in accordance with a universal

law (Kant, 1996, 387). Therefore, “there is only
one innate right, freedom (independence from
For Kant, the distinction between
being constrained by another’s choice), insofar
right and virtue depends on the
as it can coexist with the freedom of every other
concept of freedom.
in accordance with a universal law, is the only
original right belonging the everyman by virtue of
Kant defines inner freedom as a right that his humanity” (Kant, 1996, 393). The principle of
everyone has in terms of being human, i.e. inner innate freedom involves the innate equality, that is,
freedom is the innate dignity of the human independence from being bound by others. “Thus,
being (Kant, 1996, 545). This definition of inner the civil condition, regarded merely as a rightful
freedom is the basic foundation of the concept condition, is based a priori on the following
of right in Kant’s doctrine of law. While inner principles:” (Kant, 1996, 291).
freedom is innate, outer freedom is related to 1. The freedom of every member of a society as
intersubjective connections. “Right is therefore a human being.
the sum of conditions under which the choice of 2. His equality with every other as a subject.
one can be united with the choice of another in 3. The independence of every member of a
accordance with a universal law of freedom” (Kant, commonwealth as a citizen.
1996, 387). The concept of right is concerned with,
These are the rights of citizens, and all human
by definition, the external domain of freedom of
beings share the qualities of freedom, equality and
action, that is, external actions that affect people’s
independence, and these principles lead to the
freedom, and the relationship of these actions to
evaluation of political institutions.
each other. In this respect, the legal law, unlike the
moral law, is not about the contents of actions, but Therefore, as long as the right is in accordance
about the universal and formal consistency of one’s with the law, it is also compatible with the freedom
relations with other people, the freedom and actions of all. Thus, Kant holds that the state is not an
of others. Thus, “formality, as rule formalism or as impediment to freedom, but is the means of
proceduralism, will become from now on the moral freedom, i.e. the state can support and maintain if
component of positive law” (Douzinas, 2000, it aims at preventing actions which would hinder
195). According to Kant, the best expression of the freedom of others. Such coercion is consistent
outer freedom is property, which means the desire with freedom demanded in the principle of right.
to have an object such as money, status or any other
good, and it is the basis of his philosophy of law.
For Kant, the right is a condition in which the internet
outer freedom of each person is restricted within a
Kant’s Social and Political Philosophy https://
common legal system and which is consistent with
plato.stanford.edu/entries/kant-social-political/
other people’s outer freedoms.

important important

For Kant, since the right to freedom Inner freedom is the only right
must be in accordance with the that is innately owned due to be a
universal law, it is also consistent with being human.
the freedom of everyone.
In the context of negative freedom, the
philosophy of law differs from moral philosophy.
Kant’s definition of freedom makes it possible to
The aim of jurisprudence is to separate the rightful
distinguish jurisprudence from moral philosophy,
freedom from unjust freedom and to determine the
and he defines the universal principle of right as
conditions that make rightful freedom possible.
follows: Any action is right if it can coexist with

44
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Human Rights

Kant’s political philosophy offers three were also pernicious and anarchical (Douzinas,
principles for the basis of a state: freedom, equality 2000, 109). “For utilitarians, as opposed to
and dependence. “A constitution established, first Kantians, qualities such as goodness or truth can
on principles of the freedom of the members of a only be measured in context, that is, in specific, real
society (as individuals), second on principles of the situations, and not against some kind of abstract
dependence of all upon a single common legislation universal principle. Thus, for the utilitarians, the
(as subjects), and third on the law of their equality concept of rights can only be defensible if these
(as citizens of a state)” (Kant, 1996, 322). Kant rights are seen to have emerged out of the quest
asserts that only a legitimate government will for the greatest happiness. According to such
guarantee natural right to freedom of humans and a perspective, human rights are not, therefore,
other rights can be derived from the freedom. The abstract pre-social phenomena rooted in natural
principle of equality offers equality of everyone law, but the products of human decision making”
before the law. The principle of dependence means (O’Byrne, 2013, 34).
that everyone is equal when they are all equally
bound by the law. Equality is thus the dependence
of everyone on the same law.

important

According to Kant every civil

constitution must be based on three
principles: freedom, equality and
dependence.

To sum up, “Kant wanted to make it clear that

human rights were distinct from those civil rights
accorded to citizens of a state by the government
of that state. This is why he proposed a triangular
structure of rights: first, the civil rights of individuals
within their nation-states; second, the international
rights of states in their dealings with one another;
and third, the cosmopolitan rights of individuals and Figure 2.8 Jeremy Bentham
states as existing interdependently in a universal
state of humankind. Central to his theorizing is important
the essential oneness of the human race. For Kant,
people have rights simply because they share the The utilitarians such as Bentham and
earth’s surface” (O’Byrne, 2013, 32). Mill claimed that the concept of natural
rights comes from abstract principles.
Jeremy Bentham
(1748-1832) Bentham defines liberty as freedom from
The English philosopher Jeremy Bentham, who external restraint. Since he claimed that liberty is the
made a utilitarian critique of the theory of natural absence of any restraints, a person is regarded free
law and the concept of natural rights, developed if he/she is not hindered by others. For Bentham,
an early form of legal positivism. He denied many liberty is neither natural nor rooted in the law of
concepts such as natural rights, state of nature and nature, since it is not prior to government or state
social contract, since these rights are not observable of civil society. Although he confirms that liberty
and enforceable for him. Bentham insisted natural is good, he does not consider it as a fundamental
rights were not just nonsense and fallacies, they value, but an expression of the greatest happiness
principle.

45
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The Historical Background of the Idea of Human Rights

Bentham holds that concepts such as rights, Thomas Paine (1737-1809)

obligation, laws are with reference to each other Thomas Paine was a radical and democratic
and in relation to the concept of punishment. He republican who believed in the sovereignty of
thought that laws are restriction of liberty or rights. the individual person, and he was also an early
According to Bentham, rights are created by law, advocate of the right of the people (O’Byrne,
are not natural and the existence of rights and laws 2013, 32). Paine considers the implementation
require the existence of a state. For Bentham, if rights into the political sphere essential for the
someone is obliged to do a duty, it means that the establishment of social justice. He claimed that
person will be punished when he does not fulfill his “society is produced by our wants, and government
duty. Then, if one has a right, then another person by our wickedness; the former promotes our
will possess an obligation. In this respect, law is a happiness positively by uniting our affections, the
command which threatens by punishment. Thus, latter negatively by restraining our vices” (Paine,
the right is related to duty, law and punishment. 1998, 5). Paine argued, in the Rights of Man, that
the revolutionaries must restrict the government to
important
a minimum and allow the natural laws commodity
exchange and social labour to operate without
Bentham defines the concept of regulations or hindrances (Douzinas, 2000, 87).
right with reference to the concepts For Paine, when we speak of right, we should always
of duty, law and punishment. unite it with idea of duties, “right becomes duties
by reciprocity” (Paine, 1998, 398). Additionally,
However, the concept of natural rights is he says, “A Declaration of Rights is, by reciprocity,
regarded nonsense, since there is no legitimate a Declaration of Duties” (Paine, 1998, 165). For
and legal ground to prevent any interference of Paine, rights have corresponding positive duties
someone else against so-called natural rights before and all persons have a duty to contribute towards
the establishment of a state. According to Bentham, a society so that everyone can fully enjoy their
without a law maker or laws, neither natural rights natural rights. According to Paine, any right of me
nor natural duties can be expressed. Bentham as a man is also the right of another; and it becomes
claimed that what people call natural rights are not my duty to guarantee as well as to possess it.
properly legal rights, but reasons for wishing that
there were laws. However, a reason for wishing that
we possessed a right does not constitute a right. To
confuse the existence of a reason for wishing that
we possessed a right with the existence of the right
itself is a result of confusing the existence of a want
with the means of relieving it.

important

For Bentham, natural rights are

not properly rights because no
right can be prior to government.

To sum up, according to Bentham, all rights are

legal rights and fruits of the law; the laws are rules
reinforced by punishments. The idea that positive
laws must comply with natural laws can lead to
resistance to positive law, and if that is the case, no
state can survive.
Figure 2.9 Thomas Paine

46
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Human Rights

important principle of equality of rights is clear and simple;

every man can understand it, and by understanding
his rights he learns his duties. Where the rights of
According to Paine, the concept of
men are equal, every man must see the necessity
right cannot be considered without
of protecting the rights of others. Therefore, we
the concept of duty.
should follow the principle of equal rights in the
formation of a constitution.
For Paine, an enquiry into the origin of rights
important
will demonstrate that rights are not gifts from
one man to another, nor from one class of men
to another, because no authority or no principle Paine claimed that rights are given
can grant us rights. A declaration of rights is not a by any authority and rights are
creation of them, nor a donation of them, but it is a equal for all humans.
manifestation of the principle by which they exist,
followed by a detail of what the rights are; for every
civil right has a natural right as its foundation, and
it includes the principle of a reciprocal guarantee of
those rights from man to man (Paine, 1998, 402). 4
It is impossible to discover any origin of rights Comment on the critiques of Kantian universalism
except the origin of man and therefore, rights and Bentham’s utilitarianism.
are equal to every man. Paine indicates that the

47
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The Historical Background of the Idea of Human Rights

Identify the ancient Greek conceptions

LO 1 of justice and distinguish between
natural law and conventional law

Ancient Greek philosophy attaches great importance to distinguish changing from unchanging things.
The laws of nature are seen as universal, immutable and eternal as a set of regularities or of repeated
patterns. Philosophers known as the Sophists claim that universal laws are unchangeable and eternal,
but conventional laws and traditions in a society are changeable, temporary and limited to a society.
Therefore, the early Greeks claim that the concepts of justice and injustice, laws, virtues and morality
must have been relative and changeable. With the Sophists, an opposition between physis and nomos has
Summary

emerged, which will lead us later to the idea of natural law.

Plato was one the first Greek philosophers to search the problem of justice in a state and in a person. Plato
claims that no polity can survive, if it does not apply natural right to politics. The state which composed
of social classes is just in the case of “doing one’s own and proper task”. According to Plato, each class of
a society has its own virtue. Therefore, he categorized the fundamental virtues as wisdom, courage and
temperance, and then he added justice as a fundamental virtue. Plato thinks that justice covers the other
basic virtues. For him, the state emerged as a necessity and therefore it is a natural entity.
Another important philosopher who considered the state as a natural formation is Aristotle. For him,
the state is necessary and natural for the good and happiness of all citizens and it also essential for the
realization of justice. Aristotle distinguishes between the general and particular justice. General justice is
an ethical virtue that relates to other virtues. There are also two types of particular justice: distributive
justice and corrective justice. Both general (universal) and particular justice are concerned with the good
of others. Therefore, Aristotle’s Politics consider justice to be a communal virtue. Aristotle claims that
general justice is related to the political system, to the law and social morality. And he speaks of two kinds
of political justice: one is natural, and the other is legal or conventional. Aristotle asserts that certain
features of a political or legal system are based on nature, while others are human creations.
Stoic philosophers believed that the divine law was valid in all aspects of the world, even in the human
world. Stoics derived all political norms and rules from the rational human nature. According to Cicero,
justice is the principle which constitutes the bond of human society and the fundamental bond of the
commonwealth. All humans are related to the Gods by their reason and all humans are born equal. Their
equality comes from nature or divine law. The laws which are enacted by nature must be good and just.
Therefore, Cicero considers nature as the origin of justice.

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Human Rights

Identify the medieval understandings

LO 2 of justice and natural law and compare

the medieval conception of natural law
with that of Ancient Greek philosophy

The early Greek philosophy believed that nothing comes from nothing. But Christianity claimed that the
world was created out of nothing through God’s free act. Since nature was seen as a created thing (ens
creatum) by God, the source of natural law was sought in God. Medieval philosophy understands the
concept of natural law in the sense of divine command. The conception of the human being in medieval
philosophy is different from the conception of the human being in Greek philosophy. Firstly, human
being is a being created by God in medieval philosophy, unlike is the case in Greek philosophy. Secondly,

Summary
medieval philosophers believed that everybody was born with original sin, and consequently that the
human world is full of sin and injustice.
The medieval philosopher St. Augustine claims that the earth is not eternal, but man was created to be
eternal. Augustine distinguished between the earthly city and the city of God. He thinks that justice can
only be fulfilled in the city of God. In accordance with the Platonist distinction between the ideal state
and real states, Augustine distinguished between the ideal state and the earthly state. For him, the city
of God is the ideal state and it is superior to the earthly states. So, Augustine tried to make the classical
theories of justice compatible with Christian dogmas.
Another Medieval philosopher, Thomas Aquinas, claims that human dignity and value are innate
properties of man due to natural law. According to Aquinas, natural law can be known thanks to divine
light, and natural reason can understand this divine law, and one can distinguish between good and evil
by means of his own reason. Aquinas believes that the natural law is definite, certain and simple, and its
fundamental propositions are immutable, since it is created by God. The principles of divine law and their
universal validity are written in human conscience by God.
William of Ockham is the first philosopher to apply the concept of right in the modern sense, and he
considers the concept of natural right to be a personal power to conform to the right reason. This led him
to believe that individuals have a control over their life, and it was a kind of right to property. This natural
property does not come from an eternal or universal law; it is a basic fact of human life.

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The Historical Background of the Idea of Human Rights

Differentiate the concepts of right

LO 3 and natural law of the contractarian
theories

Thomas Hobbes is the founder of the modern concept of individual rights, and he replaced the concept
of justice with the concept of right. Based on the assumption of a state of nature, he tried to explain the
very reason of state. Hobbes claims that the state of nature was a state of war in which everyone was in a
potential war with everyone. In the state of nature, there is no place for the notions of right and wrong,
justice and injustice; and all individuals try to provide their own security in the state of war. They come
together to establish a set of rules in order to protect themselves and their properties. Then, all individuals
Summary

transfer their personal freedoms to the state for their securities. Thus, the state is granted the right to
rule and the citizens have a duty to obey it. The right to rule of the state is based on the consents of all
individuals. According to Hobbes, the security is the basic and innate right of the human being. Hobbes
states that liberty and equality are the basic rights of man coming from nature. Also, he distinguishes
between liberty and law; he considers liberty as a right, but the law as an obligation.
John Locke’s description of the state of nature is different from that of Hobbes. According to Locke,
all humans are equal with respect to rights that they have in the state of nature. In the state of nature,
people should not attack each other, because there is a natural law that prevents this, and this law is the
reason. The three fundamental rights of man are life, liberty and property. Like Hobbes, Locke takes
the hypothetical state of nature as a basis for his political constitution. For Locke, these rights have
a foundation that is independent from the laws of any particular society. Locke claims that no social
contract can transfer these basic rights to the state, it can only give the state an obligation to protect these
rights with a right to punishment. According to Locke, the legal laws of a state must be compatible with
the natural law. Locke’s three basic rights of man, especially the right to property, constitute the reason
for forming a state. For Locke, private property is essential for liberty. Therefore, the greatest purpose of
men uniting into society and putting themselves under a government is the preservation of their property.
Locke expresses that the right to property is the most fundamental right, because it includes the right to
life and the right to liberty, as well as the right to protect one’s own property. Locke thus based the public
sovereignty on the social contract, and therefore, rights of man coming from the state of nature and
natural law were guaranteed by a social treaty.
Jean-Jacques Rousseau claims that the public sovereignty is based on the social contract. Rousseau states
his political accounts with reference to the concepts of freedom and equality. For Rousseau, the first men
lived equally, freely and happily in a state of nature, and this freedom and equality continued until civil
society was established. After the establishment of state, the concepts of right (just) and injustice have
emerged. The purpose of the social contract is the preservation of the contracting parties. Man as a moral
being must bind himself to laws and rules in order to be truly free, because laws and rules originate from
the contract and the contract depends on the general will of the people. Accordingly, natural freedom is
replaced by legal freedom.

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Human Rights

Distinguish Kantian Universalism and

LO 4 Bentham’s Utilitarianism and describe
Paine’s rights of man

Kant considers reason to be the basis of all moral actions. Kant claims that morality is not grounded in
a pre-existing idea of good, nor does it derive from an external source, such as the law of nature. Kant’s
ethical principle or moral law commands us to follow universality. For Kant, duty and respect for law
are equally important for both morality and legality. While moral acts follow from the universal law of
reason, legality is to obey the laws of the state. Only those maxims, rules and norms that meet the criteria
of universality are morally binding. Indicating the connections between reason, freedom and law, the

Summary
Kantian revolution took the ground of law from transcendent divinity and gave it to the human being.
Kant assumes that the universal principle of right can be based not upon happiness but rather a universal
principle, such as freedom. Kant distinguishes outer from inner freedom, and he defines inner freedom
as a right that everyone possesses in terms of being human. The concept of right is concerned with, by
definition, the external domain of freedom of action. Kant defines the universal principle of right as
follows: Any action is right if it can coexist with everyone’s freedom in accordance with a universal law.
According to Kant, the principles on which civil society depends are freedom, equality and independence.
He also claims that the right is also compatible with the freedom of all people and it is in accordance with
the law.
The English philosopher Jeremy Bentham made a utilitarian critique of the theory of natural law and the
concept of natural rights. Bentham developed an early form of legal positivism. He attacked concepts
such as natural rights, the state of nature and social contract. For Bentham, natural rights were not only
nonsense and fallacious; they were also pernicious and anarchical. He claimed that the concept of rights
is not abstract but depends on the quest for the greatest happiness. Liberty is neither natural nor rooted
in the law of nature, because it is not prior to government or state. He considers liberty as good and as
a fundamental value, and he defines it as an expression of the greatest happiness principle. According to
Bentham, the concepts of right, obligation and laws relate to each other, and they all can be understood
in relation to the concept of punishment. Laws are the restriction of liberty or rights, and if someone is
obliged to fulfill a duty, it means that the person will be punished if he does not carry out his/her duty.
Thus, rights are related to duty, law and punishment. Bentham also claims that what people call natural
rights are not properly legal rights, but reasons for wishing that they were laws.
Thomas Paine, who is a democratic republican, believed in the sovereignty of the individual person, and
he considers that the implementation rights into the political sphere is essential for the establishment of
social justice. For Paine, when we speak of right, we should always bear in mind idea of duties. According
to Paine, any right of me as a man is also the right of another; and it becomes my duty to guarantee it, as
well as to possess it. For Paine, an enquiry into the origin of rights will demonstrate that rights are not gifts
from one man to another, nor from one class of men to another, because no authority or no principle can
grant us rights. A declaration of rights does not amount to their creation, but it is a manifestation of the
principle by which they exist. According to Paine, it is impossible to discover any origin of rights except
the nature of man. As a result of this, everyone has rights equally.

51
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The Historical Background of the Idea of Human Rights

1 According to the Stoics why do people have 7 Which one is true according to Rousseau’s
certain rights? theory of natural law?
A. Because human beings fight for rights. A. Fundamental rights are derived from the will of
B. Because rights originate from natural law. the monarch.
C. Because rights come from authority. B. Freedom and equality are fundamental rights
D. Because all individuals are virtuous. which nature provides to people.
Test Yourself

E. Because human being is perfect. C. All fundamental rights are transferred to

government by the social contract.
2 According to Cicero, what is the source of D. Natural law must be bound by the laws of a
natural law? state.
E. The state of nature was a state of war.
A. Reason B. Natural rights
C. God D. Government
E. Humans 8 What is right according to Kant?
A. It is derived from the subjective laws of nature.
3What does Plato slim to mention with his B. It is justified on empirical and historical
phrase “to do one’s own thing”? grounds.
A. All citizens properly carry out their assigned C. It is concerned with one’s relations with other
role. people.
B. All citizens must obey to philosopher king. D. It is transferred to another person in the state
C. Temperance should be everyone’s virtue. of nature.
D. Any ruler cannot be wise without temperance. E. It is based upon a historical social contract.
E. Some people should work hard for the
community. 9 Which one is true for the utilitarian
philosopher Jeremy Bentham?
4 According to Aristotle,what should be the A. He advocates some concepts such as natural
purpose of a political institution? law and natural rights.
A. The happiness of all. B. He claims that rights are not abstract pre-social
B. The happiness of one. phenomena rooted in natural law.
C. To make the state strong. C. He denies that rights can be derived from the
principle of maximum benefit.
D. To increase welfare.
D. He offers that positive laws must comply with
E. To establish a political system. natural laws.
E. He indicates that liberty, by definition,
5 What is the only true natural right according coincides with the law.
to Hobbes?
A. to be justified by the strongest B. property 10 According to Paine what does an enquiry
C. the social contract D. sovereignty into the origin of rights demonstrate?
E. self-preservation A. Rights are gifts from God to men.
B. Rights were derived from authority and laws.
6 Why does Locke consider property as the C. Only the positive law can grant the rights of
most fundamental right? man.
A. Because the source of property was natural law. D. No authority or principle can grant the rights.
B. Because the source of property was positive law. E. Rights of men cannot be considered as equal
C. Because all individuals have the right to property. rights.
D. Because the right to property presupposes the
right to life.
E. Because all of life, liberty and the goods are
possessions.

52
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Human Rights

If your answer is wrong, please review the If your answer is wrong, please review the
1. B 6. E
“Classical Origins of the Idea of Human “The Contractarian Theories in Modern
Rights” section. Philosophy” section.

If your answer is wrong, please review the If your answer is wrong, please review the
2. C 7. B

Answer Key for “Test Yourself”

“Classical Origins of the Idea of Human “The Contractarian Theories in Modern
Rights” section. Philosophy” section.

If your answer is wrong, please review the If your answer is wrong, please review the
3. A 8. C
“Classical Origins of the Idea of Human “Other Contributions to the Concept of
Rights” section. Right” section.

If your answer is wrong, please review the If your answer is wrong, please review the
4. A 9. B
“Classical Origins of the Idea of Human “Other Contributions to the Concept of
Rights” section. Right” section.

If your answer is wrong, please review the If your answer is wrong, please review the
5. E “The Contractarian Theories in Modern
10. D
“Other Contributions to the Concept of
Philosophy” section. Right” section.

Suggested Answers for “Your Turn”

Compare Plato’s concepts of justice and rights with
Aristotle’s and indicate how they relate these concepts to
the state.

Both philosophers consider the concepts of rights and justice as individual

and political concepts. Both of them believe that justice consists in the
harmonious and proportional interactions of people in a society. For Plato,
the perfection of the parts of a society and their harmonious and proportional
relationship makes the state just and the citizen virtuous and justice is related
to achieving each class’ own virtue; individual and political right based on
the principle of doing one’s own and proper task. Consequently, justice is
your turn 1 the right order in a society. Justice is considered to be the most fundamental
virtue by Plato, because it is related to other basic virtues, that is, justice can
emerge only if they are achieved. Aristotle thinks that justice has to do with
the relation of one person to another and that it is whole of virtue, that is, it
includes other moral virtues. Therefore, both philosophers think that justice
is related to other moral and political virtues. Whereas Plato considers justice
to be an ideal, Aristotle thinks that justice is related to legal and political
conditions.

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The Historical Background of the Idea of Human Rights

Discuss the similarities and differences between the

classical and the medieval views of justice and right.

The early Greek philosophy believes that nothing comes from nothing, but with
Suggested Answers for “Your Turn”

the birth of Christianity, it is believed that God had created the world from
nothing through his free act. Therefore, nature was conceived as the creation
of God. In this context, Augustine distinguishes between the earthly city and
the city of God. He thinks that justice can only be fulfilled in the city of God.
for example, the Roman Empire was never a truly just political state, because
it was an earthly state and true justice can only be found in the Christian state
of God. Another philosopher, Aquinas, thinks that justice and natural law can
be realized in this world, but their source is God, because the principles of
your turn 2 divine law and their universal validity comes from God. On the other hand,
the classical theory of justice can be seen as an ethical and political doctrine; and
classical philosophers think that the source of rights and justice was the nature.
Both classical thoughts and medieval views of justice criticized the existing and
historical states or societies according to their conceptions of justice and right.
According to the classical philosophers, natural law and justice presuppose an
eternal and immutable source; or an ideal source such as the Platonic ideal
justice, but this ideal is not given by God or revelation. On the contrary, it is a
construction of thought and is given by reason. While justice and right had come
from nature for Greek thought, their source was God for medieval philosophers.

Compare the conceptions of natural right of the

contractarian theories advocated by Hobbes, Locke and
Rousseau, and explain the similarities and the differences.

Hobbes, Locke and Rousseau claim that the foundation of the state was a
treaty called the social contract. They discussed a scenario that they called
the state of nature, which was a situation of war of all against all. Hobbes
believes the most fundamental natural right was security in the state of nature.
All human beings in the state of nature want to secure their lives and they
therefore agree to make a contract. Hobbes recognizes that all individuals
had natural liberty and equality in the state of nature, because liberty and
equality are the basic rights of man coming from nature. Contrary to Locke’s
and Rousseau’s conceptions, Hobbes thinks that the state of nature was very
pessimistic. Unlike Hobbes, Locke describes that the state of nature was a
peaceful condition and that the law of nature teaches us that no one should
your turn 3 harm another’s life, liberty and property. Locke supposes that the basic rights
are life, liberty and property, and that the right to property includes rights
to life and liberty. According to Locke, all humans are equal with respect to
rights, and the right is a power, or an authority which individuals have, and
which was granted by law. Rousseau also accepts that the state of nature was
peaceful and that it includes natural rights, such as equality and freedom.
Whereas Hobbes states that all individuals transferred their natural rights to
sovereignty by their own consent for the sake of their securities, Locke and
Rousseau think that the natural rights cannot be transferred to the sovereign,
but that the sovereign power must only protect the natural rights. In addition
to Hobbes’ and Locke’s fundamental innate rights, such as life, freedom and
property, Rousseau also expresses social and economic rights in his theory of
the social contract. Unlike Hobbes and Locke, therefore, Rousseau treats the
conception of the social contract in a social rather than individual context.

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Human Rights

Comment on the critiques of Kantian

universalism and Bentham’s utilitarianism.

Suggested Answers for “Your Turn”

Kant supposes that morality is not grounded in a pre-existing idea of the
good or it does not derive from an external source, such as the law of nature,
contrary to the contractarian theories. For Kant, moral acts must follow the
universal law of reason. Only maxims, rules and norms that meet the criteria
of universality are morally binding. He also thinks that moral law cannot be
based on happiness or any other empirical good. On the other hand, Bentham
criticizes the theory of natural law and the concept of natural rights within
your turn 4
the context of legal positivism from utilitarian perspective. Unlike Kant,
Bentham considers that happiness should be a starting point for rights, and
he thinks that concepts such as natural rights or natural law are nonsense.
Bentham believed that the concept of rights can only be defensible if these
rights are seen to have emerged out of the quest for the greatest happiness.
Therefore, the rights of man cannot depend on pre-social facts, just as they
cannot depend on abstract universal laws.

References
Aristotle, (1959). Politics (H. Rackham, Trans.). Locke, John. (2003). Two Treatise of Government &
Cambridge: Harvard University Press. A Letter Concerning Toleration. I. Shapiro (Ed.).
Aristotle, (2009). Nicomachean Ethics (David Ross, New York: Yale University Press.
Trans.). New York: Oxford University Press. Miller, David (2003). Political Philosophy: A Very Short
Bentham, Jeremy (2000). An Introduction to the Introduction. New York: Oxford University Press.
Principles of Morals and Legislation. Kitchener: Miller, Fred D. (1995). Nature, Justice, and Rights in
Batoche Books. Aristotle’s Politics. New York: Oxford University
Douzinas, C. (2000). The End of Human Rights. Press.
Oxford: Hard Publishing. Moyn, Samuel (2010). The Last Utopia: Human Rights
Edmundson, William (2004). An Introduction to in History. Cambridge: Belknap Press of Harvard
Rights. New York: Cambridge University Press. University Press.
Gottlieb, P. (2009). The Virtue of Aristotle’s Ethics. New O’Byrne, D. .J. (2013). Human Rights: An Introduction.
York: Cambridge University Press. New York: Routledge.
Guthrie, W. K. C. (1960). The Greek Philosophers. Paine, Thomas (1998). Rights of Man, Common Sense
New York: Harper & Row. and Other Political Writings. Mark. Philp (Ed.).
New York: Oxford University Press.
Havelock, E. A. (1978). The Greek Concept of Justice.
Cambridge: Harvard University Press. Plato (1997a). “Republic” in Complete Works (G.M.A.
Grube, Trans.). J. Cooper (Ed.). Indianapolis:
Hobbes, T. (1998). Leviathan. J. C. A. Gaskin (Ed.).
Hackett Publishing Company.
New York: Oxford University Press.
Plato (1997b). Letters. In J. Cooper (Ed.), Complete
Hunt, Lynn (2007). Inventing Human Rights: A
Works (G. R. Morrow, Trans.). Indianapolis:
History. New York: W.W. Norton & Company.
Hackett Publishing Company.
Ishay, M. (2004). The History of Human Rights. Los
Rousseau, Jean-Jacques (1999). The Social Contract
Angeles: University of California Press.
(C. Betts, Trans.). New York: Oxford University
Kant, I. (1996). Practical Philosophy (M. J. Gregor, Press.
Trans.). M. J. Gregor (Ed.). New York: Cambridge
Simmons, A. John (1994). The Lockean Theory of
University Press.
Rights. New Jersey: Princeton University Press.
Kant, I. (2002). Critique of Practical Reason. W. S.
Winston, Morton E. (1989). The Philosophy of Human
Pluhar (Ed). Indianapolis: Hackett Publishing.
Rights. Belmont: Wadsworth.

55
 Basic Documents of
Chapter 3 Human Rights
After completing this chapter, you will be able to:
Learning Outcomes

1 Understand the major human rights

documents from England 2 Identify the US Declaration of Independence
and the Virginia Declaration of Human Rights

3 4
Evaluate the Universal Declaration of Human
Comprehend the French Declaration of the Rights and other international human rights
Rights of Man and Citizens documents

Chapter Outline Key Terms

Introduction Natural Law
Major Human Rights Documents from England: Legal Positivism
Magna Carta Libertatum (1215), The English Bill of Declarations
Rights (1689) Human Rights
Fundamental Human Rights Documents from USA: Human Rights History
Virginia Declaration of Human Rights (1776) and Human Rights Documents
United States Declaration of Independence (1776) Magna Carta
The French Revolution and French Declaration of Universal Declaration of Human Rights
the Rights of Man and Citizens (1789) Freedom
Universal Declaration of Human Rights (1948) and Covenants
Following International Human Rights Documents Authority

56
Human Rights

INTRODUCTION all human rights documents till the Universal

We have discussed the idea of human rights and Declaration of Human Rights were final whistles for
its history in the previous chapters. As you have their previous epoch, and have been a fire starter
seen in these chapters that the right discourse has a for a new world. Whether natural law theories of
long-run history, and rights, including the human ancient Greeks, Hammurabi’s Codes for ancient
rights as well, can only be protected only if they are Babylon and religious orders can be considered a
enacted as rules of law. According to current law kind of human rights document is controversial,
practices or to the legal positivism all these rights though they all were aiming to create or to reach a
should be laid down in an official code to deserve common and/or individual “good”.
the name rights. Even though the idea of human So, where did this all begin? Which document
rights and its components are the fellow travellers can be considered as the initial human rights
with the natural law theory, they can be protected documents? There are different views on the
only by means of laws. Thus, anyone who wants to following questions:
be a triumphant successor in the field of human • Which document is the first human rights
rights should be competent on the major human document?
rights documents and their historical roots and • Which gave a start to the modern human
controversies. In this chapter, you will find the rights thought?
national and international major documents of
In this chapter, Magna Carta Libertatum will be
human rights and their history.
considered as the first human rights document, as
We will try to avoid the dispute about whether this was the most common demarcated agreement
human rights are an invention or a discovery. which put limits the authority of the King of
Instead, in this chapter, we will focus on the main England. Notwithstanding that the impacts of
documents of human rights which are a part of the Magna Carta were not available for all communities
human rights revolution, and their implementation but only for all rebellious Barons, this agreement
as legal codes. Actually this chapter will comprise restricted King John’s authority over the society.
of the basic human rights documents, declarations
Even though we consider the Magna Carta
and their interpretations.
Libertatum as the first example of the human
rights documents, it is also important to search the
previous documents that could be seen as human
“Silent enim leges inter arma” (Laws are silent rights documents. There are several documents
when arms are raised.) (Marcus Tullius on human rights which were declared before the
Cicero) Magna Carta Libertatum. One – probably the
most important one of them – was the Code of
Hammurabi which had been declared about 1750s
BC by the emperor of Babylonian Kingdom,
The Universal Declaration of Human Rights, Hammurabi. There is still an intense debate about
accepted in 1948, has been the prime source for whether this code should be called a human rights
the following documents of human rights. It has document or it is just an example of a criminal
been foremost the most common compromise justice article. Since this code is composed of 282
after the both political and ideological conflicts articles, many varied postulates were mentioned in
lasting through the centuries. This declaration has this subjected code. You may find some examples
elaborated different kinds of rights rooted in human of the articles which are familiar with the human
rights history. That historical legacy and current rights thought below. But you should look at these
conflicting meanings of human rights are, despite the articles in the Zeitgeist of the 1750s BC.:
admirable efforts of the architects of the declaration,
all reflected on the structure and the substance of this “127. If anyone “point the finger” (slander) at a
momentous UN document. Nonetheless, the broad sister of a god or the wife of any one, and cannot
spectrum of wars, conflicts and uprisings, suffering prove it, this man shall be taken before the judges
of the people under despotisms, constituted the and his brow shall be marked. (by cutting the
historical background of this document. Yet, almost skin, or perhaps hair.)

57
 Basic Documents of Human Rights

128. If a man takes a woman to wife, but have no intercourse with her, this woman is no wife to him.
141. If a man’s wife, who lives in his house, wishes to leave it, plunges into debt, tries to ruin her house, neglects
her husband, and is judicially convicted: if her husband offers her release, she may go on her way, and he gives
her nothing as a gift of release. If her husband does not wish to release her, and if he takes another wife, she shall
remain as servant in her husband’s house.
203. If a free-born man strikes the body of another free-born man or equal rank, he shall pay one gold mina
282. If a slave says to his master: “You are not my master,” if they convict him his master shall cut off his ear.”
(The Code of Hammurabi)

As it is seen above, especially the article 282, it is difficult to call these codes as a human rights
document, looking from our modern human rights perspective. However, if we are able to understand
the Zeitgeist of that era, the Code of Hammurabi can be considered a significant and leading document
for its own epoch.
All declarations or any written statements before the 13th century, until the Magna Carta Libertatum,
cannot be regarded as pure human rights documents as it was in the case of the Code of Hammurabi.

MAJOR HUMAN RIGHTS DOCUMENTS FROM ENGLAND: MAGNA

CARTA LIBERTATUM (1215), THE ENGLISH BILL OF RIGHTS (1689)
In this part, we will tackle two major human rights documents which both should be considered as
revolutionary documents in their epoch: Magna Carta Libertatum (1215) and English Bill of Rights (1689).
Both were far away from to be taken as human rights documents, looking from the modern human rights
perspective. But, undoubtedly, they both made invaluable impact on the human rights history.

Magna Carta Libertatum

As stated above, Magna Carta Libertatum, also known as the Articles of Barons, is far away from the
current human rights thought from which we deduce the modern law practices. During the late 12th and
at the beginning of the 13th
century, there was no mention
of the value of a human being,
but there were only two
bodies or persons which have
value among the residents of
the empires: King and the
Church. Infinite authority of
these two bodies could not
be probed or opposed in that
times according to Zeitgeist of
the era. They had unlimited
sovereignty over the society.
They did not have to respect
any of the human values in
their ruling practice. The
rebellion movements of the
Barons were a result of the
repression of the king and the
authority of the King began to
erode.
Figure 3.1 Magna Carta Libertatum

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Human Rights

King John (1166-1216) – King of England that they shall be enjoyed in their entirety, with
during that period – had several dissensions with lasting strength, for ever, we give and grant to the
the barons, just because of the protracted wars and barons the following security:
high taxation that drive the society into a corner. The barons shall elect twenty-five of their number
Besides that, English army under the King John’s to keep, and cause to be observed with all their
rule lost many lands to France. These pressures might, the peace and liberties granted and
paved the way to an inner resistance and ended up confirmed to them by this charter.
with an agreement called the Magna Carta in 1215. If we, our chief justice, our officials, or any of our
servants offend in any respect against any man, or
This agreement was the front and centre
transgress any of the articles of the peace or of this
for many successive new agreements related to security, and the offence is made known to four of
the rights of people against the rulers. “Legal the said twenty-five barons, they shall come to us
historians of the colonial period and the decades that – or in our absence from the kingdom to the chief
immediately followed it, emphasize not only that justice – to declare it and claim immediate redress.
the Englishmen who formed the power structure of If we, or in our absence abroad the chief justice,
the young country brought with them English ideas make no redress within forty days, reckoning from
about the law - specifically, ‘the institutions and ideas the day on which the offence was declared to us
that were inextricably bound up with Magna Carta or to him, the four barons shall refer the matter
and the Common Law’ - but also that the American to the rest of the twenty-five barons, who may
government retained those traditions.” (Sol, 2016, 66) distrain upon and assail us in every way possible,
with the support of the whole community of the
The articles of Magna Carta were composing of land, by seizing our castles, lands, possessions, or
very unique and epochal statements and that is why anything else saving only our own person and
we took this agreement as an archetypal example of those of the queen and our children, until they
human rights documents. If it is compared with the have secured such redress as they have determined
current law practices, some articles as the article 39 upon. Having secured the redress, they may then
may be seen the root of modern legal perspective. resume their normal obedience to us.
The article 39 of the Magna Carta states that ‘No Any man who so desires may take an oath to obey
freeman shall be arrested or imprisoned or deprived the commands of the twenty-five barons for the
of his freehold or outlawed or banished or in achievement of these ends, and to join with them
any way ruined, nor will we take or order action in assailing us to the utmost of his power. We give
against him, except by the lawful judgment of his public and free permission to take this oath to
equals and according to the law of the land’ and any man who so desires, and at no time will we
guarantees that the government will not act against prohibit any man from taking it. Indeed, we will
compel any of our subjects who are unwilling to
its citizens except in accordance with the law. (Sol,
take it to swear it at our command.
2016, 67). This article demonstrates the end of the
If one of the twenty-five barons dies or leaves the
unlimited authority of King, which might be called
country, or is prevented in any other way from
a revolution in the history of rights discourse as well.
discharging his duties, the rest of them shall choose
There has been a broad spectrum of amendments another baron in his place, at their discretion,
for over 800 years since this agreement, but the who shall be duly sworn in as they were.
root of the fair trial thought was the article 39 of In the event of disagreement among the twenty-
Magna Carta Libertatum. This article impeded the five barons on any matter referred to them for
extrajudicial execution of the King, which expresses decision, the verdict of the majority present shall
the main idea of the releasing trail in the current have the same validity as a unanimous verdict
legal system. of the whole twenty-five, whether these were all
Magna Carta, Article 61 was another landmark present or some of those summoned were unwilling
or unable to appear.
of that era:
The twenty-five barons shall swear to obey all the
“SINCE WE HAVE GRANTED ALL THESE above articles faithfully, and shall cause them to
THINGS for God, for the better ordering of our be obeyed by others to the best of their power.
kingdom, and to allay the discord that has arisen We will not seek to procure from anyone, either by
between us and our barons, and since we desire our own efforts or those of a third party, anything

59
 Basic Documents of Human Rights

by which any part of these concessions or liberties might be revoked or diminished. Should such a thing be procured,
it shall be null and void and we will at no time make use of it, either ourselves or through a third party.” (Magna
Carta, Article 61, 1215)

With this agreement – according to Article 61 – the system of checks and balances was created. As of
Magna Carta agreement, the King’s decisions and actions were began to overseen by barons and the King
lost his impunity.
As stated above, Magna Carta Libertatum was not a human rights document in the sense of modern
human rights documents. But if we take the political conditions of the 13th century into consideration ,
it can be seen as a milestone in the human rights history.

The English Bill of Rights

After the Magna Carta Libertatum, legal and juridical concepts had started to change. St. Thomas
Aquinas has been one of the philosophers who contributed to these developments. “Aquinas produced a
systematic introduction to theology, including the definition and classification of kinds of law. Aquinas defines
law in general as a role of human action determined by reason, directed towards the common good shared by all
humans.” (Hayden, 2001, 43). Aquinas classifies four forms of law as eternal law, natural law, divine law
and human law. These are the basic parts of law and related to human beings; namely their doing good
and avoiding evil in their actions.

Figure 3.2 Ancient English Barons

Another legal philosopher who has a lasting

influence on the modern human rights documents is
Dutch legal philosopher Hugo Grotius. According
to Grotius, the main idea of the natural law is the “Non esse lex quae justa non ferit.” (Unfair law
ability to self-preservation possessed equally by is not a law at all) (St. Augustine)
every single human being.

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Human Rights

The first legal document Magna Carta and of particular persons before conviction are illegal
its amendments, with the philosophical account and void.” (English Bill of Rights, 1689) Ethical
of right in it, have become a source of fire for concerns were addressed in this charter by this
the coming human rights legal documents. With article. If we consider that natural law as the main
the rebellion movements against the English source of human rights, with this statement, the
parliament and monarch, claims for life, property English Bill of Rights deserves to be called a human
and religious freedom became louder in England. rights document.
Peasants and their demands about their basic In addition to that, with the declaration of
needs triggered the human rights movements, English Bill of Rights the inheritance of the English
even if there was nothing about them in any Throne was clarified.
articles of the charter. Different classes of society
were not represented in the parliament equally, “And whereas the said late King James the
and they were anxious for their rights. With the Second having abdicated the government and
monarchical restoration, human rights thought the throne being thereby vacant, his Highness the
that had been released by the English tradition prince of Orange (whom it hath pleased Almighty
was terminated. Yet the revolutionary spirit was God to make the glorious instrument of delivering
still alive amidst peasants’ grief and despair. With this kingdom from popery and arbitrary power)
the Great Revolution 1688, they fought for did (by the advice of the Lords Spiritual and
parliamentary and civil rights – later embraced by Temporal and divers principal persons of the
Commons) cause letters to be written to the
the English Bill of Rights.
Lords Spiritual and Temporal being Protestants,
English Bill of Rights can be regarded as and other letters to the several counties, cities,
the first document on the right of individuals universities, boroughs and cinque ports, for the
about their life and religious thoughts. “That choosing of such persons to represent them as were
election of members of Parliament ought to be free.” of right to be sent to Parliament, to meet and sit
(English Bill of Rights, 1689) Free election for at Westminster upon the two and twentieth day
the parliament – also it is still one of the core of January in this year one thousand six hundred
political values– was secured in this document. eighty and eight [old style date], in order to such
“That the commission for erecting the late Court an establishment as that their religion, laws and
liberties might not again be in danger of being
of Commissioners for Ecclesiastical Causes, and all
subverted, upon which letters elections having
other commissions and courts of like nature, are
been accordingly made” (English Bill of Rights,
illegal and pernicious and That the subjects which 1689)
are Protestants may have arms for their defence
suitable to their conditions and as allowed by law” The Glorious Revolution, as a consequence
(English Bill of Rights, 1689). of – the English Bill of Rights – concluded with
The divergence between the Catholic Church the prevention of possible heir conflict as well as
and Evangelism was another starting point of this receiving the individual human rights in a legal
agreement. Cruel actions of the Catholic Church document. As stated before, all legal human
were limited with these articles. “That the freedom rights documents were a triumphant successor of
of speech and debates or proceedings in Parliament the previous one, and English Bill of Rights was
ought not to be impeached or questioned in any inheriting from Magna Carta after about 450
court or place out of Parliament” (English Bill years.
of Rights, 1689). The chair immunity, which is
still extremely crucial for parliament assemblies
in our modern world, was another example of
the individual human rights in this charter.
This article is also a preamble of the freedom of 1
speech. “That jurors ought to be duly impanelled Are there any ethical concerns stressed in English
and returned, and jurors which pass upon men in Bill of Rights and if there is, how is this concern
trials for high treason ought to be freeholders.” and expressed there?
“That all grants and promises of fines and forfeitures

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 Basic Documents of Human Rights

FUNDAMENTAL HUMAN RIGHTS expanded from France and the States of the Union
to the whole humanity and their legislators were
DOCUMENTS FROM USA:
enlarged from the revolutionary assemblies to the
VIRGINIA DECLARATION OF international community and its plenipotentiaries
HUMAN RIGHTS (1776) AND and diplomats in New York, Geneva and
UNITED STATES DECLARATION Strasbourg. In these two long centuries, the
OF INDEPENDENCE (1776) revolutionary ideas both triumphed in the world
scene and were violated in the most atrocious and
Four major revolutionary documents of the unprecedented ways.” (Douzinas, 2000, 85)
eighteenth century, i.e. Virginia Declaration
of Human Rights (1776), US Declaration of
According to Douzinas, these revolutionary
Independence (1776), the US Bill of Rights (1791),
documents had drawn reflections of the idea of
and the French Declaration des Droits de l’Homme
human rights to the legal articles almost in these
et du Citoyen (I789) have been addressed generally
two long centuries. Furthermore, they were both
as milestones in the history of human rights and its
a sign to the enlightenment trajectory for human
cradle of modernity. Greek legal Philosopher and
rights, especially for the rights of individuals.
human rights lecturer Costas Douzinas has pointed
Both of their assertions for human rights were
out the evolution of the human rights through
universal and unassignable. They both emphasized
these documents:
that all natural rights should have been protected
by a legal law articles derived from natural right
thoughts. Both were proclaimed that all written
articles should have legislated from an elected
“If freedom of speech is taken away, then dumb
assembly. And finally, they both aimed to protect
and silent we may be led, like sheep to the
almost the same rights; namely freedom of speech,
slaughter.” (George Washington)
free elections, equality, religious freedom, fair
interrogation and respect to human beings. These
declarations from two sides of the Atlantic were
“In between, the natural rights proclaimed by reflecting the Zeitgeist of the late 18th century
the eighteenth century declarations mutated
(Douzinas, 2000, 86).
into human rights, their scope and jurisdiction

Figure 3.3 Signing of the United States Declaration of Independence

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Human Rights

After long lasting wars, people who were settling in the territory of the United States of America
started to rise their own enlightenment period. While revolutionary improvements were stepping up on
economic components, human rights were another part of the American advancement. Different concepts
and different perspectives were arisen apart from the Euro-centric thoughts.

Virginia Declaration of Rights

While the English Bill of Rights proclaimed the “ancient rights and liberties” as English legal practices;
United States Declaration of Independence as well as the Virginia Declaration of Rights, defended and stressed
“equality, universality and freedom”. We witness these heirships between the consecutive documents on
human rights. As of the Declaration of Independence, individual rights began to take place in the significant
legal articles.
But before the United States
Declaration of Independence, we should
mention the Virginia Declaration of
Rights published just a month before
it, in the year 1776. Especially the
first article of this declaration might
have been the cradle of thought
behind all human rights documents:
“That all men are by nature equally
free and independent, and have certain
inherent rights, of which, when they
enter into a state of society, they cannot,
by any compact, deprive or divest their
posterity; namely, the enjoyment of life
and liberty, with the means of acquiring
Figure 3.4 4thof July, the United States Declaration of Independence and possessing property, and pursuing and
obtaining happiness and safety.” (Virginia
Declaration of Rights, 1776) This article triggered not only the United States Declaration of Independence,
but also all other modern human rights legal writings. That is the reason of its being considered as the first
human rights document in the modern sense, because of its talking about equal rights of every human
being, not only from rights of some people as barons.
The backyard of the United States Declaration of
important Independence, Virginia Declaration of Rights was the new
liberal thoughts in new lands. This declaration constitutes a
second milestone in the history of human rights.
The American Bills of Rights do not attempt
merely to set forth certain principles for the “The historian of the American Revolution says of the
state’s organization, but they seek above all Virginia declaration that it protested against all tyranny in
to draw the boundary line between state and the name of the eternal laws of man’s being: ‘‘The English
individual. According to them the individual petition of right in 1688 was historic and retrospective;
is not the possessor of rights through the state, the Virginia declaration came directly out of the heart of
but by his own nature he has inalienable and nature and announced governing principles for all peoples
indefeasible rights. in all future times” (Jellinek 1901: 46). Some believed that
the English laws know nothing of this. They do not wish
to recognize an eternal, natural right, but one inherited
from their fathers, “the old, undoubted rights of the English people” (Jellinek, 1901, 48). Even in
the Bill of Rights we find a few mentions of individual rights. “That laws should not be suspended,
that there should be no dispensation from them, that special courts should not be erected, that cruel
punishments should not be inflicted, that jurors ought to be duly impanelled and returned, that taxes

63
 Basic Documents of Human Rights

should not be levied without a law, nor a standing by a firm adherence to justice, moderation,
army kept without consent of Parliament, that temperance, frugality, and virtue and by frequent
parliamentary elections should be free, and recurrence to fundamental principles. (Virginia
Parliament be held frequently, -all these are not Declaration of Rights)
the rights of the individual, but the duties of
the government” (Jellinek, 1901, 49). And they United States Declaration of
came to conclusion that Bill of Rights was therein Independence
designated as rights and liberties of the English
people (Jellinek 1901: 49). After a long period of colonial wars and
sufferings, a new state was established on July
Therefore, they claimed that the origin of the 1776. Just a month after the Virginia Declaration of
notion of inalienable and indefeasible rights was the Rights, United States gained his independence from
American Declarations of Independence, not the Bill England with the Declaration of Independence.
of Rights or any other declaration from England.
“Building on the English Bill of Rights, the U.S.
However, it is worth to read the Virginia Declaration of Independence (1776) announced
Declaration of Rights to figure out the transformation the secession of the thirteen American colonies from
of the inspiration of human rights thought in England. Largely written by Thomas Jefferson,
regard to previous centuries. You may find some and influenced by liberal thinkers like Locke and
significant parts/articles of the subject declaration. Paine, the declaration advanced a conception of the
There were quite revolutionist statements even as social contract based on a doctrine of fundamental
the Zeitgeist of the 18th century. natural rights. The notion that “all men are created
equal, that they are endowed by their Creator with
“I. That all men are by nature equally free and
inalienable rights, that among these are life, liberty,
independent, and have certain inherent rights,
and the pursuit of happiness,” had an electrifying
of which, when they enter into a state of society,
they cannot, by any compact, deprive or divest effect far beyond the thirteen colonies.” (Ishay, 2007,
their posterity; namely, the enjoyment of life and 488). As Ishay stated, with this declaration, liberal
liberty, with the means of acquiring and possessing thoughts were taken to human rights stage, even
property, and pursuing and obtaining happiness though they were not mentioned before the United
and safety. States Declaration of Independence.
II. That all power is vested in, and consequently Another significant expression of this document
derived from, the people; that magistrates are their was the article: “He has affected to render the Military
trustees and servants, and at all times amenable independent of and superior to the Civil power.”
to them. (United States Declaration of Independence, 1776)
VII. That all power of suspending laws, or the This article also exemplifies the liberal influence on
execution of laws, by any authority without the theory of human rights. With these articles,
consent of the representatives of the people is on the 4th of July in 1776, the United States of
injurious to their rights and ought not to be America was declared as de facto. Even though
exercised.
this article might have been seen as a declaration
XII. That the freedom of the press is one of the of independence, United States Declaration of
greatest bulwarks of liberty and can never be Independence was more than the establishment
restrained but by despotic governments.
of a state. Since, with this declaration as well as
XIII. That a well-regulated militia, composed the Virginia Declaration of Rights, deliberation
of the body of the people, trained to arms, is the on human rights moved to another stage which
proper, natural, and safe defence of a free state;
was absolutely unfamiliar with previous ones. As
that standing armies, in time of peace, should
be avoided as dangerous to liberty; and that,
of this declaration, all human rights documents
in all cases, the military should be under strict have started with the quote “born equally”
subordination to, and be governed by, the civil which comprises the main idea of respecting and
power. protecting human rights.
XV. That no free government, or the blessings “The American bills of rights do not attempt
of liberty, can be preserved to any people but merely to set forth certain principles for the state’s

64
Human Rights

organization, but they seek above all to draw the

boundary line between state and individual. According
to them, the individual is not the possessor of rights
through the state, but by his own nature he has
2
inalienable and indefeasible rights. The English laws
What would you say about the ground and know nothing of this. They do not wish to recognize
main assertions of United States Declaration of an eternal, natural right, but one inherited from their
Independence? fathers, “the old, undoubted rights of the English
people” (Jellinek, 1901, 48).

THE FRENCH REVOLUTION AND FRENCH DECLARATION OF THE

RIGHTS OF MAN AND CITIZENS (1789)
Another momentous document in human rights history is the French Declaration of the Rights of Man
and Citizens declared on August 26 by the French Constituent Assembly, in 1789. The declaration ‘the
rights of man and of citizens” is one of the most significant results of the French Revolution. It has been
also criticised from different points of view by different thinkers. The political scientists and the historians,
thoroughly appreciating its importance, have repeatedly come to the conclusion that the Declaration had
no small part in the anarchy with which France was visited soon after the storming of the Bastille. They
point to its abstract phrases as ambiguous and therefore dangerous, and as void of all political reality and practical
statesmanship. Its empty pathos, they say, confused the mind, disturbed calm judgment, aroused passions, and
stifled the sense of duty, -for of duty there is not a word. On the contrary, others especially Frenchmen, have
exalted it as a revelation in the world’s history, as a catechism of the “principles of 1789” which form the eternal
foundation of the state’s structure, and they have glorified it as the most precious gift that France has given to
mankind (Jellinek, 1901, 1-2).

The Relation of the French Declaration of the Rights of Man and Citizens with
the Previous Core Human Rights Documents
The relation between the French Declaration and the Declaration of Independence of the thirteen
United States of North America has been a contentious subject since the 18th century. The declarations
from Magna Carta to the American Declaration of Independence have been enumerated and arranged
in regular sequence as various
precursors of the French
Declaration. “It is the prevailing
opinion that the teachings of the
Contract Social gave the impulse
to the Declaration, and that its
prototype was the Declaration
of Independence of the thirteen
United States of North America”
(Jellinek, 1901, 7). But some
scholars as Jellinek argued
against this thesis indicating
that the idea of volenté
générale in the Contract Social
contradicts with the notion of
rights. “The social contract has
only one stipulation, namely,
Figure 3.5 Marie Antoinette was trying to protect herself from the the complete transference to the
demonstrations
community of all the individual’s

65
 Basic Documents of Human Rights

rights. The individual does not retain one particle “The differences between the political aspirations
of his rights from the moment he enters the state. of the American War of Independence and
Everything that he receives of the nature of right the social aims of the French social revolution
he gets from the volenté générale, which is the sole have been extensively discussed. The aim of the
judge of its own limits, and ought not to be, and American documents was to legitimise political
independence from Britain, while that of the
cannot be, restricted by the law of any power.
French, the overthrow of the social order of
Even property belongs to the individual only by the ancient regime. The Americans used both
virtue of state concession” (Jellinek, 1901, 9). historical and philosophical arguments to support
The debate on the relation of the French their newly established rights. They claimed, first,
Declaration with the American Declaration of that the natural rights of the declarations were
Independence goes beyond the discussion about expressions of divine will and a re-statement
the influence of Contract Social in the French only of the traditional liberties of the “freeborn
Declaration. Jellinek asserted that the French Englishman” … Unlike the Americans, there is
Declaration was substantially a nearly copy of nothing obvious or common-sensical about this
act and its consequences. The ancient regime had
the American Declaration of Independence.
degraded nature and corrupted the constitution
“The comparison of the American and French and it was the task of philosophy to assist in
declarations shows at once that the setting forth drawing up a rational scheme for the new state,
of principles abstract, and therefore ambiguous, is based on the protection of rights. As Habermas put
common to both, as is also the pathos with which it, the French believed that when philosophical
they are recited. The French have not only adopted insight and public opinion are separated, “the
the American ideas, but even the form they received practical task falls to the philosophe to secure
on the other side of the ocean. But in contrast to political recognition for reason itself by means
the diffuseness of the Americans the French are of his influence on the power of public opinion.
distinguished by a brevity characteristic of their The philosophers must propagate the truth, must
language” (Jellinek, 1901, 43). But that would propagate their unabridged insights publicly.” The
not mean that they both are identical because of Revolution took philosophy to the barricades and,
once victorious, appointed it its chief adviser.”
the lack of some rights in the French Declaration
(Douzinas, 2000, 87)
included in the American Declarations, and of the
background conditions that gave birth to these
declarations. The political climate in France in The French Declaration of the Rights
1789 was extremely different from the political of Man and Citizens
circumstances in the United States in 1776. Another significant issue about this declaration
When we come to compare the articles of these was the developments on its background in France.
declarations, we find some divergence as some Before the Revolution and announcement of French
overlappings. Even though some articles were Declaration of the Rights of Man and Citizens, people
seemed similar to the articles of the United States in France was living under oppression and suffering
Declaration of Independence and of the Virginia from poverty. In mid-1789, the country faced with
Declaration of Rights, French Declaration of the the crowded demonstrations almost every corner
Rights of Man and Citizens, differs from them in the of the country held by poor people of lower classes
sense of the background of the articles. First of all, called sans-culottes. Versailles Palace conducted the
while the United States Declaration of Independence cruel gunshots for suppressing the revolt of sans-
was a constituent document, French Declaration culottes. Flourishing insurrection could not be
of the Rights of Man and Citizens was like an controlled by the ancient regime. “As a result, the
amendment for an old-fashioned governance and population at large became much more resistant to
endeavour to establish a modern and equal regime taxation, with the inevitable consequence that the fiscal
against an oppressing ruling system. Also the crisis of the French state, already close to insolvency,
ideology behind these two declarations was not the grew almost insoluble.” (Davidson, 2016, 32)
same. According to Douzinas, they have different On the 26th of August in 1789, the French
backgrounds and different aims: Declaration of the Rights of Man and Citizens

66
Human Rights

was announced in the National Assembly. This as shall be defined by law” (French Declaration of
declaration has been a turning point not only the Rights of Man and Citizens, 1789). With the
for human rights, but also for all successor announcement of this declaration, freedom of
governments. The articles of this Declaration of speech as one of the fundamental human rights had
rights paved the way for, and are also harmonic the opportunity to be protected by laws. This may
with modern human rights theories. What makes seem ordinary now, however, on the eighteenth
this declaration unique was its emphasis on the century, because of the huge gap between social
term “common good” instead of natural law. The classes, free communication of ideas and opinions
term “common good” has begun to be a basis for was a distant dream. Especially, to legislate the idea
human rights and for justifying human rights, and of free communication was almost impossible.
it has lasted till today. Therefore, this article could be seen as a miracle
Like the United States Declaration of in the history of human rights theory and human
Independence, French Declaration of the Rights of rights documents.
Man and Citizens also started with the emphasis on What conducted the French people to the
the equal rights at birth: “Men are born and remain rebellion was the poor life of the French people and
free and equal in rights. Social distinctions may be the unequal taxation. Therefore, the articles related
based only on considerations of the common good.” to the taxation and the inviolability of domicile
(French Declaration of the Rights of Man and constituted another part of this declaration. “All
Citizens, 1789) With this article, the declaration the citizens have a right to decide, either personally
stressed distinctness between the rights as a citizen or by their representatives, as to the necessity of the
and rights which comes with the birth, as all public contribution; to grant this freely; to know to
modern human rights articles. what uses it is put; and to fix the proportion, the
“The Law is the expression of the general will. mode of assessment and of collection and the duration
All citizens have the right to take part, personally of the taxes” and “Since property is an inviolable and
or through their representatives, in its making. sacred right, no one shall be deprived thereof except
It must be the same for all, whether it protects or where public necessity, legally determined, shall
punishes. All citizens, being equal in its eyes, shall clearly demand it, and then only on condition that
be equally eligible to all high offices, public positions the owner shall have been previously and equitably
and employments, according to their ability, and indemnified.” (French Declaration of the Rights of
without other distinction than that of their virtues Man and Citizens, 1789)
and talents.” (French Declaration of the Rights Even though it is not directly related to human
of Man and Citizens, 1789). Article 6 is one of rights, the principle of separation of powers was also
the monumental statements of this declaration, articulated in it; and by Article 16 constitutional law
because of its introducing equality for all in was transmogrified so far. Thereafter constitutional
making laws and in reaching public positions. It law has been the core legislative instrument in
aimed to prevent the discrimination which had protecting human rights of all people. Article 16
been a common practice in the societies for a long stressed the same concerns and paved the way to
time. Stating that “all men are by nature equally free legislate a consensus based constitution. “A society
and independent” the distinctions between different in which the observance of the law is not assured, nor
classes of society had been put aside, and it had the separation of powers defined, has no constitution
been supposed that every citizen should have rights at all.” (French Declaration of the Rights of Man
equally free from his/her social and economic class. and Citizens, 1789)
Therefore, this article made a great impact both on Starting with the Virginia Declaration of Rights
human rights theory and government practices. through the French Declaration of the Rights of
Freedom of speech was another important Man and Citizens, as well as the US Declaration of
issue that stressed by French Declaration. “The free Independence (1776) and the US Bill of Rights, the
communication of ideas and opinions is one of the path of the legal documents for modern human
most precious of the rights of man. Every citizen may, rights thought was established. The philosophical
accordingly, speak, write, and print with freedom, approach to the human rights found its ground in
but shall be responsible for such abuses of this freedom these law articles. To ascribe value to an individual

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 Basic Documents of Human Rights

or a person had been clear in these articles Documents on Human Rights of the
declared in the late 18th century. Thus the rights of International Organisations Before
individuals became the central issue in the rights the Universal Declaration of Human
discourse.
Rights
However, there were still deliberations about
In fact, the path from feudalism to liberal
the holder of rights, The French Declaration
national state required some political movements.
enclosed both human being and citizen as holder
The US Declaration of Independence and French
of rights without a clear distinction between them.
Declaration of the Rights of Man and Citizens
Citizenship was the main challenging term for these
prepared the way to modern human rights theory,
documents. “The rights belong to “man” and “citizen”
even though they did not directly aim to protect
marking a close relationship between humanity and
human rights. But they have been the noteworthy
politics; the difference between the natural rights
steps in the way to the Universal Declaration. After
of man and the political rights of the citizen is left
the announcement of these declarations, the idea
unclear; the “Supreme Being” witnesses only and
of the individual’s rights – especially rights of man
does not legislate or guide the Declaration, which
or human rights – started to rise.
is the act of the representatives of the people acting
as the mouthpiece of Rousseau’s volonté générale.”
(Douzinas, 2000, 89). As Douzinas expresses, the
difference between the term “man” and “citizen”
might have given to complexity to understanding
the human rights, especially if this perplexity was
declared in the legal documents, and the protection
of these rights is being tried to be secured only by
the articles of those documents. Ultimately, these
rights should be supra-political and the conflict
between the “man” and “citizen” identification in
these declarations might have mutilated the idea of
human rights.

Figure 3.6 Stamp for the memory of Eleanora

Roosevelt
3
How can you describe the problem with the terms
One of the notable documents which deserves to
“Man” and “Citizen” in French Declaration of the
be mentioned is the Geneva Convention adopted in
Rights of Man and Citizens?
1868. This convention could be considered as one
of the core international humanitarian law articles.
With this convention, sixteen European countries
UNIVERSAL DECLARATION OF as well as several American States agreed to create a
HUMAN RIGHTS (1948) AND safe zone for amelioration of the wounded during
FOLLOWING INTERNATIONAL the armed-conflicts and wars. Even this may seen a
HUMAN RIGHTS DOCUMENTS humanitarian article, because it was an expression
of respecting human life.
As mentioned above, Universal Declaration of
Human Rights has been a milestone in the history “The growing struggle over economic inequality
of human rights law. It has been followed by within and between nations, colonial rivalries, and
numerous conventions and declarations which finally the descent into World War I prompted
aimed to prevent human rights violations and to the search for additional humanitarian and peace
secure human rights for every human person all efforts buttressed by international institutions.
over the world. After World War I, liberal internationalists, led

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Human Rights

by American President Woodrow Wilson (1856– of 1948, protecting religious, racial, and ethnic
1924), sought to implement their conviction that groups against extermination; the revision of the
human rights, commerce, and security needed to Geneva Conventions of 1949, strengthening non-
be integrated and safeguarded by international combatant immunity; and finally the international
organizations. Building on the nineteenth-century convention on asylum of 1951 to protect the rights
Socialist Internationals, one of the two organizations of refugees” (Ignatieff 2001: 5)
that emerged at the Treaty of Versailles (1919) was
the International Labor Organization (ILO). The
ILO grafted internationalist socialist convictions
The Universal Declaration of Human
onto liberal thought, insisting that world peace Rights (1948)
could be preserved only if workers’ rights and basic After the end of World War II, the leaders of
standards of economic welfare were respected in all the leading countries undertook the large-scaled
countries. of endeavours for maintaining the peace and
The other overarching organization, the protecting human life and liberty. Charter of the
League of Nations, placed the concept of United Nations, drafted in 1941 and signed in
collective security against aggression at the center 1945, was the pivotal endeavour to reach this goal.
of the effort to preserve international peace, and Even these efforts actually aimed to protect the life
guaranteed the right to self-determination” (Ishay and liberty of people, the new UN has failed to
2007: 477). secure all people of the world community.
However, all those efforts failed “and short-
lived, weakened initially by the refusal of the United
States to join the league and ultimately overtaken “Consider if this is a man
by the rise of fascism in Europe. It would take Who works in the mud
another World War, leaving fifty million dead, to Who does not know peace
unleash new efforts to establish a new international Who fights for a scrap of bread
regime to promote trade, human rights, and peace” Who dies because of a yes or a no”
(Ishay 2007: 479). (Primo Levi, survival from the Auschwitz
Despite the efforts of the League of Nations and Concentration Camp)
several other human rights declarations, human
rights violations were at every corner of the world.
That forced the world community to go further Universal Declaration of Human Rights
and to establish a new international body named (UDHR) was adopted by the General Assembly
United Nations, and to prepare a new declaration of the United Nations on 10th December 1948,
of human rights. President Franklin Roosevelt and this day is declared as Human Rights Day
talked about four freedoms in his message to and is celebrated annually across the world on
Congress. These four essential human freedoms 10 December every year. “Although not legally
that must be secured worldwide were freedom of binding, it was to serve as a set of guidelines
speech and expression, freedom of every person to for nation-states to follow, drawn from shared
worship God, freedom from want, and freedom moral principles. Indeed, despite being promoted
from fear. These four freedoms constituted the very primarily by the United States and its Western
core of new human rights declaration, and human allies, UDHR contains not only the civil and
rights theory. political rights traditionally advocated by Western
Historically speaking, the Universal Declaration liberal-capitalist democracies, but economic,
is an important part of a wider reordering of social and cultural rights as well. Despite the
the normative order of post-war international abstentions of Saudi Arabia, South Africa, the
relations, designed to create a firewall against Soviet Union, and the other five states, there
barbarism. The juridical revolution included was surprisingly little disagreement on the
the UN Charter of 1945, outlawing aggressive construction of the Declaration (O’Byrne, 2003,
war between states; the Genocide Convention 86-87).

69
 Basic Documents of Human Rights

Considering the cruelty and destruction during

World War II, the international community as well
as the leaders were trying to find out a solution
against further misery. There were established
working groups who were working on writing a
protective code. Eleanor Roosevelt – the wife of
Franklin Roosevelt– was the delegate of the US
to the United Nations General Assembly between
1945 and 1952, and she was a member of these
working groups. She has been a pioneer for creating
the Universal Declaration of Human Rights.

“Leading the American delegation at the San

Francisco Conference, Eleanor Roosevelt helped
plan the establishment of the United Nations
Figure 3.7 Equality (1945). The United Nations Charter (1945)
reaffirmed the principle of non-intervention in
Though the general agreement on the UDHR the domestic affairs of other states (i.e., national
and efforts made by world leaders for human rights sovereignty), thus initially appearing to preclude
have not been successful to secure human rights international intervention on behalf of human
rights. Nevertheless, the Charter contained
all over the world. And that led to the UN to
human rights clauses, including the affirmation of
draft new declarations and covenants referring to the “dignity and worth of the human person” and
the specific topics and new challenges of human the equality of rights of men and women. The first
rights. “The writing and subsequent adoption critical international human rights convention
of the Universal Declaration of Human Rights adopted after World War II was the United Nations
in 1948 was one of the first major achievements Convention on the Prevention and Punishment of
of the United Nations, and was seen by many as the Crime of Genocide (1948), which emerged
evidence of the organisation’s commitment ‘to in response to the attempt by Nazi Germany to
promote social progress and better standards of life exterminate the Jewish population of Europe.
in larger freedom’” (O’Byrne, 2003, 85). At the Nuremberg trials (1945–1946) and the
Tokyo trial (1946), former Nazi and Japanese
“The higher status of human rights is seen as leaders were indicted and tried as war criminals
the result of their legal universalisation, of the by an international military tribunal. These trials
triumph of the universality of humanity. The law established a new principle in international law,
addresses all states and all human persons qua namely, that no one, whether a ruler, a public
human and declares their entitlements to be a part official, or a private individual, was immune
of the patrimony of humanity, which has replaced from punishment for war crimes. The Convention
human nature as the rhetorical ground of rights. on the Prevention and Punishment of the Crime of
And yet human rights declarations have little Genocide reflected these principles, and they were
value as a descriptive tool of society and its bond.” unanimously adopted by the General Assembly on
(Douzinas, 2000, 116) December 9, 1948. (Ishay, M, 2007, 478)
Besides that, the hypernym agreement should
All these efforts aimed to create an ultimate
be rooted in a detailed background work before it
peace after the war. Yet there were created a code
was declared. According the legal positivism, the
for the prevention for the genocide. But there was
articles in a law documentary has to secure all kinds
still missing part of a desired peaceful world.
of possibilities about the various acts’ reflections
to the subject articles. As we saw in the previous
One day later, the General Assembly proceeded
examples, – that is the previous human rights
to adopt the Universal Declaration of Human
documents – the failure in covering all aspects of Rights. When this historic document was put
the society concerns caused the lack of maintaining to a vote, the UN counted only fifty-eight
the peace and protecting human rights. members. Fifty states ratified the declaration,

70
Human Rights

while Byelorussia, Czechoslovakia, Poland, One of the most controversial articles of the
Saudi Arabia, South Africa, Ukraine, the Universal Declaration is the article 6:
Soviet Union, and Yugoslavia abstained. While
nonbinding, the Universal Declaration became “Everyone has the right to recognition everywhere
a touchstone of human rights law, recognizing as a person before the law.” (Universal
the indivisibility and inalienability of security, Declaration of Human Rights, Article 6)
civil, political, economic, social, and cultural
rights, regardless of sex, nationality, and race.” According to existing legal positivist practices,
(Ishay, M, 2007, 478) “recognition” should be reciprocal. But this article
accentuates that recognition before the law is sine
As Ishay stated above, after adoption of the qua non. So that, this complexity between the
UN Charter and the Nuremberg and Tokyo Trials, legal practices and the declaration is the proof of
international community reached their aim to create the explanation on the preamble of these articles.
the most comprehensive human rights document Likewise, even all trials have been up on a legal
in 1948, thanks to pioneering contributions of code, human – considered as a person – has a status
Eleanor Roosevelt and her committee members. above the law according to Article 6.
Many philosophers and international law
authorities agreed that the Universal Declaration of “No one shall be subjected to arbitrary interference
Human Rights is a milestone for the human rights with his privacy, family, home or correspondence,
law and history. Hence, apart from the precedent nor to attacks upon his honour and reputation.
Everyone has the right to the protection of the law
documents, some articles of the Universal
against such interference or attacks.” (Universal
Declaration of Human Rights will be analysed in Declaration of Human Rights, Article 12)
details. The preamble of the Universal Declaration
points out its aims very clearly: This has not been stated so clearly before as
in Article 12. However, the issues with “honour”
“Therefore THE GENERAL ASSEMBLY and “reputation” are totally left to the natural law
proclaims THIS UNIVERSAL DECLARATION
practices.
OF HUMAN RIGHTS as a common standard
of achievement for all peoples and all nations, to Even after over 70 years of this declaration,
the end that every individual and every organ Article 13 has been ignored just because of the
of society, keeping this Declaration constantly in national law practices by almost all of the countries.
mind, shall strive by teaching and education to
promote respect for these rights and freedoms and by “(1) Everyone has the right to freedom of
progressive measures, national and international, movement and residence within the borders of
to secure their universal and effective recognition each state. (2) Everyone has the right to leave
and observance, both among the peoples of any country, including his own, and to return to
Member States themselves and among the peoples his country.” (Universal Declaration of Human
of territories under their jurisdiction.” (Universal Rights, Article 13)
Declaration of Human Rights)
United Nations that has the prime responsibility
First two articles of the declaration stressed the to secure human rights has to find a way to maintain
equality of every single human being from birth these kinds of articles, and should update its own
on. We see also some expressions about equality in regulations to become more reliable.
the previous human rights documents, but Article With the Article 13 there are several other
5 differs from them for laying emphasis on the ban clauses related to freedom of speech, free will on
of torture or cruel, inhuman treatment to protect marriage, religious freedom, property rights and
human dignity benefiting from the public services. However,
Article 22 addresses a quite different attribution
“No one shall be subjected to torture or to cruel, about the social security.
inhuman or degrading treatment or punishment.”
(Universal Declaration of Human Rights, “Everyone, as a member of society, has the right
Article 5) to social security and is entitled to realization,

71
 Basic Documents of Human Rights

through national effort and international cannot be manipulated and this, undoubtedly, is
co-operation and in accordance with the the guarantor for all rights of this declaration.
organization and resources of each State, of the
Finally, the last article – Article 30 – is another
economic, social and cultural rights indispensable
for his dignity and the free development of his
adjuvant for this Declaration to be more protective
personality.” (Universal Declaration of Human and clear.
Rights, Article 22)
“Nothing in this Declaration may be interpreted
as implying for any State, group or person any
Right to education and its regulations are
right to engage in any activity or to perform
mentioned in Article 26. Strengthening the respect
any act aimed at the destruction of any of the
for human rights and fundamental freedoms, and rights and freedoms set forth herein.” (Universal
admitting of the human personality for his/her full Declaration of Human Rights, Article 30)
development are emphasised as the main goals of
an education. . With this clause, any misinterpretation or
manipulation by the name of this Declaration is
“(1) Everyone has the right to education. prohibited. Thus, even though almost all of the
Education shall be free, at least in the elementary
articles of the Universal Declaration of Human
and fundamental stages. Elementary education
shall be compulsory. Technical and professional
Rights are elaborated, this point is especially stressed
education shall be made generally available and at the Article 30.
higher education shall be equally accessible to Starting with the announcement of the Universal
all on the basis of merit. (2) Education shall be Declaration of Human Rights in 1948, almost all
directed to the full development of the human signatory states updated their constitutional law
personality and to the strengthening of respect for according to this declaration and its articles as well.
human rights and fundamental freedoms. It shall When Eleanor Roosevelt and her team started
promote understanding, tolerance and friendship off this declaration, their aim was to protect the
among all nations, racial or religious groups, and
individual human rights and its values. After it
shall further the activities of the United Nations
became effective, the Universal Declaration of
for the maintenance of peace. (3) Parents have a
prior right to choose the kind of education that Human Rights has become a pivotal document on
shall be given to their children.” (Universal Human Rights. If we check out all single articles of
Declaration of Human Rights, Article 26) this declaration, we notice that it was prepared in
the spirit of the natural law thought. We may not
As stated in this article, core value of the be satisfied with some of its clauses or can discuss
education should be maintaining the respect for its validity in modern legal world, but we cannot
human rights and the aim should be the peace. underestimate this monumental document and its
Besides that, by this article, UN allows the parents background.
to choose the type of education before the child is
able to take his/her decision him/herself.
Further Human Rights Documents
Article 28 is stressing the ultimate core value,
after the Universal Declaration of
namely ownership of a right.
Human Rights
“Everyone is entitled to a social and international With the Universal Declaration of Human Rights
order in which the rights and freedoms set forth in in 1948, the world community has reached a new
this Declaration can be fully realized.” (Universal step in the history of humanity, and human rights
Declaration of Human Rights, Article 28) has become a major indicator of the Zeitgeist. After
that with the endeavours of the Council of Europe,
The claim and owning - as a reflection - of a
the European Convention on Human Rights was
right is still a contentious issue for natural claim
declared in 1950 and entered into force in 1953.
of rights. But, fortunately, this debate can be
This convention has been the core protective human
ended with this article. It is clearly emphasised that
rights guide for all signatory member states. While
“Everyone should have the right which is written in
this convention the rights of human beings have
this declaration.” The interpretation of this clause
stressed, it has also focused on trial mechanism and

72
Human Rights

its violations by states. This need forced European 2 “No one shall be subjected to torture or to cruel,
Council to create an international court, European inhuman or degrading treatment or punishment”
Court of Human Rights, to implement the articles and article 5 “Everyone has the right to life, liberty
of the Convention and to establish a judicial system and security of person”, we notice that the subject
according to the Convention. or bearer of rights is individual person. Meanwhile,
the first article of ICCPR and ICESCR -Article
“In the determination of his civil rights and 1 1- is that all peoples have the right of self-
obligations or of any criminal charge against him, determination. By virtue of that right they freely
everyone is entitled to a fair and public hearing determine their political status and freely pursue
within a reasonable time by an independent and their economic, social and cultural development-
impartial tribunal established by law. Judgment speaks to people, not an individual person.
shall be pronounced publicly but the press and
public may be excluded from all or part of the
trial in the interests of morals, public order or
national security in a democratic society, where
“The rights of every man are diminished when
the interests of juveniles or the protection of the
private life of the parties so require, or to the the rights of one man are threatened.” (John F.
extent strictly necessary in the opinion of the court Kennedy)
in special circumstances where publicity would
prejudice the interests of justice.” (The European
Convention on Human Rights, Article-6) “In the Universal Declaration human rights
appear as principles or demands concerning a
Since almost all applications about the violation special treatment of the individuals belonging to the
of human rights have been addressed the European human species. The 26 articles of this Declaration
Court of Human Rights, this convention has been are attempts to word such principles and some of
still the core reference code for trials about these their implications in the existing conditions of
appeals. The last amendment of this convention world –viewed from a Western perspective in the
was executed with the Protocol 16 in 2013. middle of our century” (Kuçuradi, 1995, 5-6).
With 16 new protocols, this convention has been Human rights in the Universal Declaration are
responded to the present day needs for protection conceived mainly as principles of action which
of human rights. After the announcement of the articulates how human beings should treat others,
Universal Declaration of Human Rights in 1948, so that they “can afford the possibility to develop
and then European Convention on Human Rights their human potential, and consequently some of
in 1953, there have been several documents on them carry out the human activities that constitute
human rights as well. In 1966, the International what we call ‘human dignity’” (Kuçuradi, 1995, 7).
Covenant on Civil and Political Rights (ICCPR)
On the other hand, “the conception of
and the International Covenant on Economic, Social
human rights in the Covenants is different,
and Cultural Rights (ICESCR) were released to
but complementary of the above mentioned
signature and entered into force ten years later in
conception. Human rights are considered there as
1976.
basic principles for social organization, as demands
Though the Universal Declaration of Human concerning the establishment of social relations
Rights and the twin covenants, namely International in a certain manner. They intend to express ‘legal
Covenant on Civil and Political Rights (ICCPR) and as well as moral obligations for the states, or the
the International Covenant on Economic, Social and principles expected to determine the deduction of
Cultural Rights (ICESCR), have many common legal norms” (Kuçuradi, 1995, 7). Thus, human
articles, they differ in the sense of the bearer of rights in the Covenants seem to be conceived on the
rights, and their conceptions of human rights. The one hand as a special kind of norms for legislation,
bearer of the rights in the Universal Declaration but on the other hand, many of these rights are not
is human person or individuals, whereas in the considered as basic rights, and that face with some
Covenants it is the people. Looking through the restrictions in the name of other norms or rights
main articles of the Universal Declaration, as article (Kuçuradi, 1995, 8).

73
 Basic Documents of Human Rights

The twin Covenants put emphasis on the right Rights was the Geneva Conventions which had
of self-determination for any people or minority several amendments since 1864. Along with
and tried to set a road map for on-going – and that establishment of the United Nation High
of course, future – assertions. Even though, self- Commissioner for Refugees issues related with
determination right may be seen as a group right, refugees have come into question more than
it is considered as a substantial human rights. before. Refugee status that has been determined by
Although the bearer of rights was different from the UNHCR and Geneva Conventions were the core
Universal Declaration, fundamental rights as right code for the United Nations.
to life and liberty, freedom from pain and poverty, The UN system includes more than above
the right to fair trial, freedom from torture and mentioned conventions related to the protection
cruel, inhuman treatments have kept to constitute of human rights. Others are below.
the core of the twin Covenants. ICCPR created a
• Convention Related to the Status of
special body of independent experts consisting of
Refugees (1951)
18-members elected by the state parties to oversee
its implementation. This special body, called the • Convention on the Political Rights of
Human Rights Committee, is responsible for Women (1953)
monitoring and reporting human rights abuses in • International Convention on the
the member countries. The Committee reviews the Suppression and Punishment of Crime of
periodic reports, prepares an annual report to the Apartheid (1973)
General Assembly including a summary of discussion • Declaration on the Protection from Torture
of the state reports, and adopts “general comments” (1975)
on various provisions of the covenant. Due to lack • Convention Against Torture, and Other
of authority for judgement, the committee is just Cruel, Inhuman or Degrading Treatment
responsible to send its observations and reports, or Punishment (1984)
but in practice, these reports of the Human Rights
• Convention on the Elimination of All Forms
Committee play a vital role for any claim about the
of Discrimination Against Women (1979)
human rights violations in the member countries.
• Declaration on the Elimination of All
International Convention on the Elimination
Forms of Intolerance and of Discrimination
of All Forms of Racial Discrimination is another
Based on Religion or Belief (1981)
significant document, and it was released
December, 1965, after the UDHR. • International Convention on the Protection
of the Rights of All Migrant Workers and
“In this Convention, the term “racial Their Families (1990).
discrimination” shall mean any distinction,
exclusion, restriction or preference based on race,
colour, descent, or national or ethnic origin which
has the purpose or effect of nullifying or impairing “Law without justice is like a body without a
the recognition, enjoyment or exercise, on an soul.” (Costas Douzinas)
equal footing, of human rights and fundamental
freedoms in the political, economic, social, cultural
or any other field of public life.” (International
Consequently, the Universal Declaration which
Convention on the Elimination of All Forms
was adopted over 70 years ago, is still the foremost
of Racial Discrimination, Article 1)
human rights document. There have been still
The first article clearly describes the racial some philosophical and technical concerns about
discrimination which has been a common and its validity and/or sufficiency, but it has been
widespread violation of human rights. Besides, one of the well-prepared documents on human
the document lists the rights to prevent racial rights. Furthermore, by the declaration of the
discrimination. UDHR, there have become a rapid change on
the human rights thought as we may see from the
Another example as a document on human
numerous further declarations. These were not
rights after the Universal Declaration of Human
only protective codes, but also interpretations of

74
Human Rights

the difference on right claims about human rights According to Hart, all human rights thoughts as
and other civil rights. Respect to the UDHR and/ well as the articles, were the source of utilitarianism,
or implementation and fulfilment of the rights and the term “Human Rights” has been created
enumerated in the UDHR is the subject of current just to establish a utilitarian system.
modern positivist legal order.
It should be clear that taking human rights out
of the other rights, plays a vital role to understand
the differences between civil rights and natural
human rights. This means we have two different
ways to describe the term “right”; either studying it
looking from the standpoint of current theories, or
interpreting it in the zeitgeist of the jurisprudence.
This chapter have mainly opted for the second one,
in the Zeitgeist of the jurisprudence when the legal
articles were declared. Our modern jurisprudence
was transformed from its own antecessor, right
after the world wars. Michael Ignatieff sorts this Figure 3.8 70th Anniversary of the declaration of The
revolution quite clearly: Universal Declaration of Human Right in Gare du Nord
in Paris
“The juridical revolution included the UN
Charter of 1945, outlawing aggressive war
between states; the Genocide Convention of We have discussed almost all legal documents
1948, protecting religious, racial, and ethnic which were trying to set the rights of human beings
groups against extermination; the revision of the up the ancient times. The current jurisprudence
Geneva Conventions of 1949, strengthening non- requires the articles, hence we cannot deny the
combatant immunity; and finally the international articles on human rights, but they are not free of
convention on asylum of 1951 to protect the rights criticism or objection. If a human rights article is
of refugees.” (Ignatieff, M. 2001, 5) drawn up without the natural rights practices, it
cannot be evaluated as the human rights document.
At the end, we may all called them as a fire- Yet, a human being itself is a natural being, any
wall against the brutal movements of the states. human right article has to be possessed the natural
These post-war articles were able to keep the great approach while it has been preparing.
wars out of the world community, but how do they
respond to the challenges of the present-day world?
Do we need more and new kinds of documents or
only to figure out how can implement or put into
practice these rights enrolled in these documents? internet

If we move through specifically on human It is almost impossible to list all human rights
rights apart from the others, there are still cynic to related documents here. But you may find the
the articles on the term“Human Rights” all International Human Rights Instruments
in UN Handbook at the annex part. (https://
“The doctrine of human rights has at least www.ohchr.org/Documents/Publications/
temporarily replaced the doctrine of maximising HRhandbooken.pdf )
utilitarianism as the prime philosophical
inspiration of political and social reform” (Hart,
H.L.A. 1983, 196-197)

H. L. A Hart is one of the pioneering 4

exponent of modern positivism in philosophy of What is the main difference of the UDHR from
law or jurisprudence. The quaintest expression the other human rights documents?
of his statement was conceivably “temporarily”.

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 Basic Documents of Human Rights

Understand the major human

LO 1 rights documents from England

There are two major English human rights documents which should be considered a revolutionary
document for their own epoch will be discussed; Magna Carta Libertatum (1215) and English Bill of Rights
(1689). Both were far away from to be named as the human rights documents, looking from the modern
human rights perspective. But, undoubtedly, they both made invaluable impact on human rights history.
Magna Carta Libertatum was the front and centre for many successive new agreements related to the
Summary

rights against the rulers. “Legal historians of the colonial period and the decades that immediately followed
it, emphasize not only that the Englishmen who formed the power structure of the young country brought with
them English ideas about the law - specifically, ‘the institutions and ideas that were inextricably bound up with
Magna Carta and the Common Law’ - but also that the American government retained those traditions.” (Sol:
2016: 66)
The articles of Magna Carta were consist of very unique and epochal statements, and that is the reason
that we took this agreement as an archetype example of human rights documents. If it has been compared
with the current law practices – for example – the article 39 may be seen the root of modern legal theory.
Clause 39 of Magna Carta provides that ‘No freeman shall be arrested or imprisoned or deprived of his
freehold or outlawed or banished or in any way ruined, nor will we take or order action against him,
except by the lawful judgment of his equals and according to the law of the land’ and guarantees that the
government will not act against its citizens except in accordance with the law. (Sol 2016: 67)
On the other hand, English Bill of Rights can be regarded as the first document on the right of individuals
about their life and religious belief. “That election of members of Parliament ought to be free.” (English Bill
of Rights, 1689) Free election for the parliament – also it is still one of the core political values – secured
also with this document. “That the commission for erecting the late Court of Commissioners for Ecclesiastical
Causes, and all other commissions and courts of like nature, are illegal and pernicious and That the subjects
which are Protestants may have arms for their defence suitable to their conditions and as allowed by law”
(English Bill of Rights, 1689).
The Glorious Revolution, as a consequence of the English Bill of Rights concluded with the prevention of
possible heir conflict as well as receiving the individual human rights in a legal document. As stated before,
all legal human rights documents were a triumphant successor of the previous one, and English Bill of
Rights was inheriting from Magna Carta after about 450 years.

76
Human Rights

Identify the US Declaration of

LO 2 Independence and the Virginia
Declaration of Human Rights

While the English Bill of Rights proclaimed the “ancient rights and liberties” as an English legal practices;
United States Declaration of Independence as well as the Virginia Declaration of Rights, both defended
and stressed “equality, universality and freedom”. We witness these heirships between the consecutive
documents on human rights. As of the Declaration of Independence, individual rights begin to take place
in the significant legal articles.

Summary
The backyard of the United States Declaration of Independence, Virginia Declaration of Rights, consisted
the new liberal thoughts in the new lands. This declaration constitutes another milestone in the history
of human rights. The American Bills of Rights do not attempt merely to set forth certain principles for
the state’s organization, but they seek above all to draw the boundary line between state and individual.
According to them, the individual is not the possessor of rights through the state, but by his own nature
he has inalienable and indefeasible rights.
After a long period of colonial wars and sufferings, a new state was established on July 1776. Just a month
after the Virginia Declaration of Rights, United States gained his independence from England with the
Declaration of Independence.
The United States Declaration of Independence was asserted on the violation of human rights by the
United Kingdom. The king of the United Kingdom was blamed with very cruel enforcements. “He is, at
this Time, transporting large Armies of foreign Mercenaries to compleat the Works of Death, Desolation, and
Tyranny already begun with circumstances of Cruelty and Perfidy, scarcely paralleled in the most barbarous
Ages, and totally unworthy of the Head of a civilized Nation.” (United States Declaration of Independence,
1776) United States Declaration of Independence was ground on these kind of fundamental human rights
abuses. Another significant expression of this document was the article: “He has affected to render the
Military independent of and superior to the Civil power.” (United States Declaration of Independence,
1776) This article also exemplifies the liberal influence on the theory of human rights. On the 4th of July
in 1776, with these articles, United States of America was declared as de facto. Even though this article
might have seen as a declaration of independence, United States Declaration of Independence was more
than the establishment of a state. Since, with this declaration as well as the Virginia Declaration of Rights,
deliberation on human rights moved to another stage which was absolutely unfamiliar with previous ones.
As of this declaration, all human rights documents have started with the quote “born equally” which
comprises the main idea of respecting and protecting human rights.

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 Basic Documents of Human Rights

Comprehend the French

LO 3 Declaration of the Rights of Man
and Citizens

French Declaration of the Rights of Man and Citizens was a significant example of the history of human
rights. Before the Revolution and announcement of French Declaration of the Rights of Man and Citizens
people in France was living under oppression and suffering from poverty. In mid-1789, the country
faced with the crowded demonstrations almost every corner of the country held by poor people of lower
classes called sans-culottes. Versailles Palace conducted the cruel gunshots for suppressing the revolt of sans-
Summary

culottes. Flourishing insurrection could not be controlled by the ancient regime. “As a result, the population
at large became much more resistant to taxation, with the inevitable consequence that the fiscal crisis of the
French state, already close to insolvency, grew almost insoluble.” (Davidson, 2016: 32)
On the 26th of August in 1789, the French Declaration of the Rights of Man and Citizens was announced in
the National Assembly. This declaration has been a turning point not only for human rights, but also for
all successor governments. The articles of this Declaration of rights were well prepared and also harmonic
with modern human rights theories. That what makes this declaration unique was its emphasis on the
term “common good” instead of natural law. The term “common good” has begun to be a basis for human
rights and for justifying human rights, and it lasted till today.
Like the United States Declaration of Independence, French Declaration of the Rights of Man and Citizens
also started with the emphasis on the equal rights at birth: “Men are born and remain free and equal in
rights. Social distinctions may be based only on considerations of the common good.” (French Declaration of
the Rights of Man and Citizens, 1789) With this article, this declaration stressed distinctness between the
rights as a citizen and rights which comes with the birth, as all modern human rights articles.
Starting with the Virginia Declaration of Rights through the French Declaration of the Rights of Man and
Citizens, as well as the US Declaration of Independence (1776) and the US Bill of Rights, the path of the
legal documents for modern human rights thought had been established. The philosophical approach
to the human rights found itself the ground in these law articles. To ascribe value to an individual or a
person had been clear in these articles declared in the late 18th century. Rights of individuals became the
central issue in the rights discourse and French Declaration of the Rights of Man and Citizens became the
latest version of its epoch.

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Human Rights

Evaluate the Universal Declaration of

LO 4 Human Rights and other international
human rights documents

The path from feudalism to liberal national state required some political movements. The US Declaration
of Independence and French Declaration of the Rights of Man and Citizens prepared the way to modern
human rights theory, even though they did not directly aim to protect human rights. But they have been
the noteworthy steps in the way to Universal Declaration. After the announcement of these declarations,
the idea of the individual’s rights – especially rights of man or human rights – started to rise.

Summary
International community tried to reach out the best interpretation on human rights articles after the
declarations in the 18th century. However, all those efforts failed “and short-lived, weakened initially
by the refusal of the United States to join the league and ultimately overtaken by the rise of fascism in
Europe. It would take another World War, leaving fifty million dead, to unleash new efforts to establish a
new international regime to promote trade, human rights, and peace” (Ishay 2007: 479).
After the end of World War II, the leaders of the leading countries undertook the large-scaled of endeavours
for maintaining the peace and protecting human life and liberty. Charter of the United Nations, drafted
in 1941 and signed in 1945, was the pivotal endeavour to reach this goal.
After the establishment of the United Nations, the Universal Declaration of Human Rights was declared
in 1948. Many philosophers and international law authorities agreed that the Universal Declaration of
Human Rights was regarded as a milestone for the human rights law and history. The preamble of the
Universal Declaration points out its aims very clearly:
“Therefore THE GENERAL ASSEMBLY proclaims THIS UNIVERSAL DECLARATION OF HUMAN
RIGHTS as a common standard of achievement for all peoples and all nations, to the end that every individual
and every organ of society, keeping this Declaration constantly in mind, shall strive by teaching and education to
promote respect for these rights and freedoms and by progressive measures, national and international, to secure
their universal and effective recognition and observance, both among the peoples of Member States themselves
and among the peoples of territories under their jurisdiction.” (Universal Declaration of Human Rights)
Starting with the publication of the Universal Declaration of Human Rights in 1948, almost all signatory
states updated their constitutional law according to this declaration and its articles as well. When Eleanor
Roosevelt and her team started off this declaration, their aim was to protect the individual human rights
and values. After it became effective, the Universal Declaration of Human Rights has become a pivotal
document on Human Rights. If we check out all single articles of this declaration, we notice that it was
prepared in the spirit of the natural law thought. We may not be satisfied with some of its clauses or can
discuss its validity in modern legal world, but we cannot underestimate this monumental document and
its background.
After the declaration of the Universal Declaration of Human Rights, following conventions such as European
Convention on Human Rights, the International Covenant on Civil and Political Rights, the International
Covenant on Economic, Social and Cultural Rights took place in the history of the documents on human
rights.
In sum, the Universal Declaration which was constituted over 70 years ago, is still the foremost human
rights document. There have been still some philosophical and technical concerns about its validity and/
or sufficiency, but it has been one of the well-prepared documents on human rights. Furthermore, by the
declaration of the UDHR, there have become a rapid change on the human rights thought as we may see
from the numerous further declarations. These were not only protective codes, but also interpretations of
the difference on right claims about human rights and other civil rights. Respect to the UDHR and/or
implementation and fulfilment of the rights enumerated in the UDHR is the subject of current modern
positivist legal order.

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 Basic Documents of Human Rights

1 Which were the two dominant values of the 5 Which one of the sentences below gives us
community in England when the Magna Carta the primary difference between the United States
had been signed? Declaration of Independence and the English Bill
A. Justice and king of Rights?
Test Yourself

B. Society and king A. While English Bill of Rights gave increasing the
C. Church and king tax rates, it was not mentioned on the United
D. Church and nobility States Declaration of Independence
E. King and money B. While the English Bill of Rights proclaimed
the “ancient rights and liberties” as an English
2 Which one of the below can be seen as the legal practices, the United States Declaration of
main reason for calling Magna Carta Libertatum Independence defended and stressed “equality,
as a turning point in human rights history? universality and freedom”
C. While the English Bill of Rights was a kind of
A. It maintained the peace with the rebel barons an amendment, the United States Declaration
B. It restricted the infinite authority of the king of Independence was a declarative document
C. It created the democratic regime D. While the separation of powers was mentioned
D. It provided the free election system on the English Bill of Rights, it was not in the
E. It reduced the taxation rates United States Declaration of Independence
E. While religious freedom was not stated on the
3 Which of them is not mentioned in the English Bill of Rights, there were several articles
English Bill of Rights? about it in the United States Declaration of
Independence
A. Heirship of the throne
B. Election of members of the Parliament
6 Which is not mentioned in the French
C. Armament status of the Protestants Declaration of the Rights of Man and Citizens?
D. The chair immunity in the Parliament
E. Requirements for having rights A. Freedom of speech
B. Equality
4 Which one of the statements below is wrong C. Taxation
according to Virginia Declaration of Human D. Nobility
Rights? E. Separation of Power
A. Members of the society have to pay taxes of
their owned properties. 7 According to Prof. Douzinas, which words
below represent the terms “man” and “citizen” in
B. The freedom of the press can never be restrained.
the French Declaration of the Rights of Man and
C. All power is vested in, and consequently derived Citizens?
from, the people.
D. The legislative and executive powers of the A. Natural Rights and Human Rights
state should be separate and distinct from the B. Criminal Law and Civil Rights
judicative. C. Moral Rights and Natural Rights
E. The excessive bail ought not to be required, nor D. Moral Rights and Political Rights
excessive fines imposed; nor cruel and unusual E. Natural Rights and Political Rights
punishments inflicted.

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Human Rights

8 Which statement or article below is NOT 10 Which of them below is the most significant
correct for the Universal Declaration of Human convention or covenant about the Racism?
Rights?
A. Convention Against Torture, and Other
A. Everyone has the right to freedom of movement Cruel, Inhuman or Degrading Treatment or
and residence within the borders of each state. Punishment

Test Yourself
B. Parents do not have a right to choose the B. International Convention on the Protection of
education of their children. the Rights of All Migrant Workers and Their
C. The writing and subsequent adoption of the Families
Universal Declaration of Human Rights in C. Convention Related to the Status of Refugees
1948 was one of the first major achievements D. International Convention on the Elimination
of the United Nations, and was seen by many as of All Forms of Racial Discrimination
evidence of the organisation’s commitment ‘to
E. Geneva Convention
promote social progress and better standards of
life in larger freedom
D. With the Universal Declaration of Human
Rights in 1948, the world community has
reached a new step in the history of humanity,
and human rights has become a major indicator
of the Zeitgeist.
E. No one shall be subjected to torture or to
cruel, inhuman or degrading treatment or
punishment.

9 Which of the sentences below cannot be

deduced from the Universal Declaration of Human
Rights?
A. The UDHR was a significant example of the
positivist thought
B. The core value of the education should be
maintaining the respect for human rights and
the aim should be the peace
C. Everyone should have the rights which are
written in the UDHR
D. International community reached their aim
to create the most comprehensive human
rights document with the UDHR
E. The UDHR contains not only the civil and
political right traditionally advocated by
Western liberal-capitalist democracies, but
economic, social and cultural rights as well

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 Basic Documents of Human Rights

If your answer is wrong, please review the If your answer is wrong, please review
1. C “Major human rights documents from 6. D the “The French Revolution and French
England: Magna Carta Libertatum (1215), Declaration of the Rights of Man and
Answer Key for “Test Yourself”

The English Bill of Rights (1689)” section. Citizens (1789)” section.

2. B If your answer is wrong, please review the 7. E If your answer is wrong, please review
“Major human rights documents from the “The French Revolution and French
England: Magna Carta Libertatum (1215), Declaration of the Rights of Man and
The English Bill of Rights (1689)” section. Citizens (1789)” section.

3. E If your answer is wrong, please review the 8. B If your answer is wrong, please review the
“Major human rights documents from “Universal Declaration of Human Rights
England: Magna Carta Libertatum (1215), (1948) and Following International Human
The English Bill of Rights (1689)” section. Rights Documents” section.

4. A If your answer is wrong, please review the 9. A If your answer is wrong, please review the
“Fundamental Human Rights Documents “Universal Declaration of Human Rights
from USA: Virginia Declaration of Human (1948) and Following International Human
Rights (1776) and United States Declaration Rights Documents” section.
of Independence (1776)” section.

5. B If your answer is wrong, please review the 10. D If your answer is wrong, please review the
“Fundamental Human Rights Documents
“Universal Declaration of Human Rights
from USA: Virginia Declaration of Human
(1948) and Following International Human
Rights (1776) and United States Declaration
Rights Documents” section.
of Independence (1776)” section.
Suggested Answers for “Your Turn”

Are there any ethical concerns stressed in

English Bill of Rights and if there is, how is this
concern expressed there?

The ethical concerns were addressed in this charter as you see in the following
statements “That jurors ought to be duly impanelled and returned, and jurors
which pass upon men in trials for high treason ought to be freeholders.” and
your turn 1 “That all grants and promises of fines and forfeitures of particular persons before
conviction are illegal and void.” In these articles, ethics of the jurors were
purely and clearly mentioned. The jurors – deciders – have to be purified and
protected from tangible relations with possible bribes and bribers.

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Human Rights

What would you say about the ground and main

assertions of United States Declaration of Independence?

Suggested Answers for “Your Turn”

United States Declaration of Independence was asserted on the violation of
human rights by the United Kingdom. The king of the United Kingdom
was blamed with very cruel enforcements. “He is, at this Time, transporting
large Armies of foreign Mercenaries to compleat the Works of Death, Desolation,
and Tyranny already begun with circumstances of Cruelty and Perfidy, scarcely
paralleled in the most barbarous Ages, and totally unworthy of the Head of a
civilized Nation.” (United States Declaration of Independence, 1776) United
States Declaration of Independence was ground on these kind of fundamental
human rights abuses. Another significant expression of this document was the
article: “He has affected to render the Military independent of and superior to the
your turn 2 Civil power.” (United States Declaration of Independence, 1776) This article
also exemplifies the liberal influence on the theory of human rights. On the
4th of July in 1776, with these articles, United States of America was declared
as de facto. Even though this article might have been seen as a declaration of
independence, United States Declaration of Independence was more than the
establishment of a state. Since, with this declaration as well as the Virginia
Declaration of Rights, deliberations on human rights moved to another stage
which was absolutely unfamiliar with previous ones. As of this declaration, all
human rights documents have started with the quote “born equally” which
comprises the main idea of respecting and protecting human rights

How can you describe the problem with the terms “Man”
and “Citizen” in French Declaration of the Rights of Man
and Citizens?

Citizenship was the main challenging term for the French Declaration of the
Rights of Man and Citizens. “The rights belong to “man” and “citizen” marking
a close relationship between humanity and politics; the difference between the
natural rights of man and the political rights of the citizen is left unclear; the
“Supreme Being” witnesses only and does not legislate or guide the Declaration,
which is the act of the representatives of the people acting as the mouthpiece of
Rousseau’s volonté générale.” (Douzinas, C. 2000). As C. Douzinas stated above,
your turn 3 the difference between the terms “man” and “citizen” might have given rise to
complexity in understanding human rights, especially if this entanglement
was stated in the legal documents. The protection of these rights can only
be secured by these articles. Ultimately, these rights should be supra-political
and the conflict between the “man” and “citizen” identification in these
declarations might have mutilated the idea of human rights. Apart from
political disputes, human beings that is the subject of human rights cannot be
identified as a citizen. The only description of this individual is the human.

83
 Basic Documents of Human Rights

What is the main difference of the UDHR from

the other human rights documents?
Suggested Answers for “Your Turn”

The Universal Declaration of Human Rights has influenced a broader spectrum

of societies than any previous documents of human rights. The previous
human rights documents have failed to cover all concerns of the societies.
your turn 4 The Universal Declaration of Human Rights has been a significant agreement
of the wide range participation which focuses on maintaining the peace after
the World War II. When the committee with its president Eleanor Roosevelt
started off working on this declaration, its aim was to protect the individual
human rights and human values. After it had been declared by the UN, the
Universal Declaration of Human Rights has become a pivotal document on
Human Rights. If we check out all single articles of this declaration, we notice
that it was prepared in the spirit of the natural law thought, while many of the
modern articles are some examples of positivism.

References
Cairo Declaration - Africa-Europe Summit under the Ishay, M. R. (2007). The Human Rights Reader. New
Aegis of the OAU and the EU York: Routledge Press.
Davidson, I. (2016). The French Revolution from Jellinek, G. (1901). The Declaration of the Rights of
Enlightenment to Tyranny. London:Profile Books. Man and of Citizens A Contribution to Modern
Constitutional History. New York: Henry Hold
Declaration on the Human Rights of Individuals
and Company.
Who are not Nationals of the Country in which
They Live Kuçuradi, İ. (1995). Human Rights Instruments
Questioned in the Light of the Idea of Human
Declaration on the Protection of All Persons from
Rights. In The Idea and Documents of Human
Enforced Disappearance
Rights. Ankara.:Philosophical Society of Turkey.
Douzinas, C. (2000). The End of Human Rights.
O’Byrne, J. D. (2003). Human Rights An Introduction.
Oregon:Hart Publishing.
Essex: Longman Pearson Education.
Hart, H. L. A. (1983). Essays in Jurisprudence and
Sol, Credence (2016). Exploring the Magna Carta and
Philosophy. Oxford: Clarendon Press.
Governmental Immunity Doctrines: The View
Hayden, P. (2001). The Philosophy of Human Rights. from the United States. In E. Gibson-Morgan, &
St. Paul: Paragon House. A. Chommeloux (Eds.), The Rights and Aspirations
Ignatieff, Mıchael (2001). “I. Human Rights as of the Magna Carta. Cham: Springer International
Politics”, Human Rights as Politics and Idolatry Publishing.
(Princeton: Princeton University Press). The Guiding Principles on Internal Displacement
Ishay, M. R. (2004). The History of Human Rights from Universal Declaration on the Human Genome and
Ancient Times to the Globalization Era. Berkeley: Human Rights (UNESCO)
University of California Press.

84
Human Rights

Declarations, Acts and Covenants The Universal Declaration of Human Rights (1948)
The Code of Hammurabi. Retrieved August 22, The European Convention on Human Rights (1950)
2019 from https://avalon.law.yale.edu/ancient/
International Convention on the Elimination of All
hamframe.asp
Forms of Racial Discrimination (1965)
Magna Carta Libertatum (1215)
International Covenant on Civil and Political Rights
The English Bill of Rights (1689) (1966)
Virginia Declaration of Human Rights (1776) International Covenant on Economic, Social and
Cultural Rights (1966)
United States Declaration of Independence (1776)
French Declaration of the Rights of Man and Citizens
(1789)

85
 Collective Protection of Human
Chapter 4 Rights and World Politics
After completing this chapter, you will be able to:
Learning Outcomes

Identify the changes in the security Describe and evaluate the meanings and

1 2
understanding and how this impacted focus of humanitarian intervention and the
the approach towards the use of force in responsibility to protect, and distinguish
humanitarian matters in international relations between the two notions

3 4
Describe and evaluate the scope and tools Evaluate how the mechanics of the Security
of the responsibility to protect within the Council influences the implementation of
framework of the United Nations norms of collective protection of human rights

Chapter Outline
Introduction Key Terms
A Widening Security Understanding at the Close of Human Security
the Twentieth Century Humanitarian Intervention
From Humanitarian Intervention to the Responsibility to Protect
Responsibility to Protect: a Conceptual Turn? Sovereignty as Responsibility
The Responsibility to Protect Under the United State Sovereignty
Nations Non-intervention
Collective Responsibilities and the Security Council United Nations
as the Main Authority

86
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Human Rights

INTRODUCTION determining influence. The devastation caused

In the current international system, human by the war and the mass atrocities that were
rights matters are no longer protected solely committed, placed human rights at the top of the
by domestic laws. With the increasing number developmental agenda relating to international law
of international conventions on fundamental in the immediate post-war period. In this regard,
rights and freedoms, states have also committed following the establishment of the United Nations
themselves under international law. Along with (UN) in 1945, the Nuremberg and Tokyo trials set
the changing character of conflicts, as human a precedent by prosecuting Nazi and Japanese war
rights have become more universalised, mass criminals who committed mass atrocities (Schabas,
violations of human rights have emerged as a 2004, 5-8). At the beginning of the Nuremberg
major concern for the international community. In trials, the prosecutor accused Nazi war criminals
this vein, this chapter focuses on the conceptions with “genocide”. While the term was not used at
of humanitarian intervention (also known as the the later stages of the trials, and the final conviction
“right to intervene”) and the Responsibility to was based on “crimes against humanity”, the UN
Protect (R2P) as well as their implementations in General Assembly took further steps to create new
the contemporary international political system. law to address future cases (Schabas, 2004, 7).
As Chandler (2009, 109) suggests, “human
rights claims conflate an ethical or moral claim
Genocide is defined under Article II of the
with a legal and political one. The discourse of
Genocide Convention as follows:
the ‘human’ belongs to the sphere of abstract
“In the present Convention, genocide means
universal ethics, while that of ‘right’ belongs to
any of the following acts committed with intent
the framework of a concretely constituted legal
to destroy, in whole or in part, a national,
and political sphere”. It is in such an intertwined
ethnical, racial or religious group, as such:
structure where matters pertaining to the collective
a. Killing members of the group;
protection of human rights are discussed and dealt
b. Causing serious bodily or mental harm
with. As will be demonstrated in the following
to members of the group;
sections, the changing political conjuncture not
c. Deliberately inflicting on the group
only affects the reaction to mass violations of
conditions of life calculated to bring
human rights, but also the construction of new
about its physical destruction in whole or
norms to ensure a timely and decisive international
in part;
response.
d. Imposing measures intended to prevent
births within the group;
A WIDENING SECURITY e. Forcibly transferring children of the
UNDERSTANDING AT THE group to another group” (UN, 1948).
CLOSE OF THE TWENTIETH
CENTURY
In 1948, two milestones took place a day apart.
Prior to the Second World War, there were
On 9 December 1948, the UN General Assembly
two main political strands contesting for the
adopted the “Convention on the Prevention and
institutionalisation of human rights: one was
Punishment of the Crime of Genocide”, which
based on socialism while the other was based on
codified the crime of genocide and became the
the liberal understanding that provided the basis
earliest human rights treaty agreed by the UN
for the establishment of the League of Nations.
General Assembly (UNOGPR2P, n.d.). The next
Nevertheless, with the outbreak of the Second
day, the General Assembly ratified the “Universal
World War and the subsequent political and
Declaration of Human Rights” (UDHR).
ideological developments, neither could have a

87
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Collective Protection of Human Rights and World Politics

All these developments were in harmony with

the commitment made to human rights under the
UN Charter—as stressed in the Preamble, Article
1(3) and Article 55, as well as Article 13 that tasked
the General Assembly with “initiat[ing] studies
and mak[ing] recommendations for the purpose of
[…] assisting in the realization of human rights and
fundamental freedoms for all without distinction
as to race, sex, language or religion” (UN, 1945).

Article 1(3) of the UN Charter

“The Purposes of the United Nations are to
achieve international co-operation in solving
international problems of an economic,
social, cultural, or humanitarian character,
and in promoting and encouraging
respect for human rights and for
fundamental freedoms for all without
distinction as to race, sex, language, or
religion” (emphasis added, UN, 1945).

Figure 4.1 The Universal Declaration of Human Rights Article 55(c) of the UN Charter
Source: https://www.un.org/en/universal-declaration- “The United Nations shall promote […]
human-rights/ universal respect for, and observance of,
human rights and fundamental freedoms for all
While the UDHR was a soft law document without distinction as to race, sex, language, or
lacking binding effect over the state parties, it led religion” (emphasis added, UN, 1945).
to the conclusion of the Twin Covenants—i.e.
International Covenant on Civil and Political
Rights, and International Covenant on Social, The Cold War Years
Economic and Cultural Rights—in 1966, which Notwithstanding the positive steps taken
placed the notion of universal human rights in the as to the universalisation of human rights and
realm of hard law. fundamental freedoms under the roof of the UN,
as the Cold War progressed, new areas of debate
emerged with the mass atrocities that were being
committed in different parts of the world. As
internet can be understood from Article 1(1) of the UN
Genocide Convention Charter, the primary purpose of the UN is “to
https://www.un.org/en/genocideprevention/ maintain international peace and security” (UN,
genocide-convention.shtml 1945). To this end, the principles of sovereignty,
equality and non-interference in the domestic
Universal Declaration of Human Rights affairs of states (as enshrined under Article 2 of the
https://www.un.org/en/universal-declaration- UN Charter, consecutively in Paragraphs 1 and 7)
human-rights/. along with the prohibition of the threat and use of
force (as established under Article 2(4) of the UN
Twin Covenants
Charter) were adopted as acting principles. With
https://www.ohchr.org/en/professionalinterest/
pages/ccpr.aspx and https://www.ohchr.org/EN/ reference to international practice, it is possible to
ProfessionalInterest/Pages/CESCR.aspx. observe that during the Cold War years, the UN
Security Council strictly upheld the sovereignty of

88
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Human Rights

states on grounds of these principles even in the civil war that broke out with the self-determination
face of mass atrocity crimes that were committed, attempt in East Pakistan was followed by mass
while the use of veto by the permanent members atrocities by the Pakistani Army, and had resulted
was a critical factor hampering a healthy decision- in around ten million refugees from East Pakistan.
making process in the Council. Considering this a national security issue, India
In this regard, based on state practice although argued that the mass movement of refugees into
some scholars claim that there were exemplary its territory constituted a “refugee aggression”. As
practices of what is contemporarily regarded as an additional but minor point, India also raised
humanitarian intervention, it is not possible to the need to help the Bengali people who were
argue that this was an internationally recognised subjected to mass atrocities and indicated their
understanding. In the literature, there are three Cold aim as to end human suffering (ICISS, 2001b,
War era cases that scholars refer to as precedents 54-55). While humanitarian justifications along
of contemporary understanding of humanitarian with the self-defence argument were not enough
interventions wherein external military force was to warrant a Security Council authorisation for
used to intervene in states experiencing mass the use of force, the condemnation of India’s
violations of human rights. These are the cases unilateral action was blocked with the Soviet veto
of India’s intervention in East Pakistan in 1971, (Gözen Ercan, 2016, 43). In the case of Vietnam, a
Vietnam’s intervention in Cambodia in 1978, and border dispute broke out as a result of the ongoing
Tanzania’s intervention in Uganda in 1979. human rights abuses in Cambodia (Ramsbotham
and Woodhouse, 1996, 55; ICISS, 2001, 58).
In these three cases, the intervening states
Invoking its right to self-defence on grounds of
based their unilateral uses of military force on
the “cross-border attacks” of Cambodia, Vietnam
the inherent right of self-defence as established
attacked its neighbour and successfully invaded
under Chapter VII of the UN Charter, specifically
Phnom Penh (ICISS, 2001b, 58). Finally, putting
Article 51. Their main argument was that the
an end to the mass violations of human rights, the
internal situation in their neighbouring countries
oppressive Khemer Rouge regime of Cambodia
constituted a threat to their security and territorial
was overthrown. Yet, Vietnam claimed that this
integrity (Gözen Ercan, 2016, 43-45).
was not a result of its use of force, but rather the
success of the Cambodian people revolting against
the regime (ICISS, 2001b, 58). While Vietnam
Article 51 of the UN Charter
did not attempt to justify its military intervention
“Nothing in the present Charter shall impair
on grounds of mass violations of human rights,
the inherent right of individual or collective
those members of the UN Security Council and
self-defence if an armed attack occurs against
NATO that considered the positive humanitarian
a Member of the United Nations, until
outcomes of Vietnam’s action still refrained from
the Security Council has taken measures
justifying the use of force on such grounds.
necessary to maintain international peace
Eventually, the UN Security Council voted for
and security. Measures taken by Members
a decision requiring the withdrawal of foreign
in the exercise of this right of self-defence
troops. As in the case of India, the Soviet Union
shall be immediately reported to the Security
vetoed the decision against Vietnam (ICISS, 2001,
Council and shall not in any way affect the
59-60). An important aspect of the follow-up UN
authority and responsibility of the Security
General Assembly meeting was that member states
Council under the present Charter to take
questioned if it would be possible to accept mass
at any time such action as it deems necessary
violations of human rights as a legitimate reason
in order to maintain or restore international
for external intervention, and a majority decided
peace and security” (UN, 1945).
that external intervention is in contravention to
the UN Charter no matter what its humanitarian
For instance, in justifying its use of force in the outcomes are (ICISS, 2001b, 60-61). Unlike
territory of Pakistan, India put forth as its primary India’s and Vietnam’s interventions, Tanzania’s use
reasoning the 3 December attack from Pakistan. The of military force was met with little protest at the

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Collective Protection of Human Rights and World Politics

international platform as most states agreed with the As Oppenheim (1995, 443) suggests,
invocation of the right to self-defence considering the unilateral character of the Cold War era
Uganda’s action amounting to aggression on the interventions was a determining factor in weakening
territory of Tanzania (ICISS, 2001b, 63). Similar to the idea of a lawful humanitarian intervention.
the case of Vietnam, Tanzania’s main argument was Furthermore, in the early post-Charter period
that there were two ongoing wars: while Tanzania as the preservation of international peace and
was fighting against Uganda to protect its territorial security was the utmost priority, the international
integrity, Ugandan people were fighting to topple a community, and specifically the Security Council,
dictator who had been committing mass violations opted for a restrictionist interpretation of the
of human rights (ICISS, 2001b, 62). Therefore, provisions of the UN Charter and had not been
at no stage of its intervention, Tanzania claimed to eager to legitimate unauthorised humanitarian
undertake a humanitarian intervention despite the interventions (Wheeler, 2000, 286).
fact its actions helped to stop the atrocities in the end.
important
In the 1980s, some states supported claims of
so-called humanitarian interventions in the cases
The approaches to the legality and legitimacy of
of the intervention of the United States (US) first
humanitarian interventions can be classified into
in Granada in 1983 and then in Panama in 1989.
two main groups as the restrictionist approach
While the use of military force by the US could not
and the counter-restrictionist approach (which
be condemned by the UN Security Council due to
covers the natural law tradition as well as the
the US’s veto (in the case of Panama, the United
international community approach). On the
Kingdom (UK) and France also cast veto), its claims
one hand, restrictionists consider humanitarian
to stop mass atrocities did not receive recognition
intervention a violation of international law,
from the international community, except for
mainly “a violation of the territorial integrity
those states that intervened alongside the US. All
and political independence of the state”. On the
in all, during the Cold War era, no instance of use
other hand, counter-restrictionists argue that
of military force, whether based on humanitarian
humanitarian interventions are permissible under
justifications or not, was granted authorisation from
customary international law and the provisions
the UN Security Council, and all instances were
of the UN Charter promoting and protecting
considered as “flagrant violation[s] of international
human rights. Moreover, they also emphasise that
law” that breached paragraphs 4 and 7 of Article 2 of
when a humanitarian intervention is undertaken
the UN Charter (Murphy, 1996, 111).
as a collective conduct, it “expresses the will of the
international community” (Duke, 1994, 33-35).

Article 2(4) of the UN Charter

“All Members shall refrain in their Nevertheless, with the demise of the bipolar
international relations from the threat or use system that was composed of two rival blocks, the
of force against the territorial integrity or UN Security Council began to interpret the limits of
political independence of any state, or in any its authority under Chapter VII of the UN Charter
other manner inconsistent with the Purposes more liberally. Such change in attitude was also a result
of the United Nations” (UN, 1945). of the widening security understanding that came
with the conceptual and theoretical transformation of
Article 2(7) of the UN Charter wars, which brought into focus intrastate wars, and
Principle of non-intervention: “Nothing
made interstate wars no longer the sole concern.
contained in the present Charter shall authorize
the United Nations to intervene in matters which
are essentially within the domestic jurisdiction of The 1990s
any state or shall require the Members to submit
In International Relations, security is
such matters to settlement under the present
Charter; but this principle shall not prejudice traditionally perceived as the security of the nation-
the application of enforcement measures under state. Nevertheless, in the post-Charter period
Chapter Vll” (UN, 1945). with the developments taking place in the realm

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of human rights, such state-centric approach began Compared to the Cold War era, under the mandate of
to transform and was supplemented by additional Chapter VII of the UN Charter (especially Articles 39
security approaches, one of which is human security. and 42), the Security Council authorised five of the
In its 1994 Human Development Report, the UN nine interventions that were carried out collectively
Development Programme (UNDP) placed the in order to stop mass atrocities. Yet again, the veto
focus on the people-centred approach of human was the main factor that paralysed the Council
security, and basically defined it as “freedom from in adopting decisions from time to time. In the
fear and want” (King and Murray, 2001-02, 585) example of the North Atlantic Treaty Organization’s
in relation to the main components of economic, (NATO) intervention in Kosovo, although the
food, health, environmental, personal, community Security Council referred to the situation as a “threat
and political security (Kaldor, 2008, 182). to peace and security in the region” in its resolutions
(see, Resolution 1199 of 23 September 1998 and
Resolution 1203 of 24 October 1998), a decision to
warrant a collective international response under the
internet UN mandate could not be delivered due to Russia’s
1994 Human Development Report veto. Alternatively, NATO independently adopted
https://www.un-ilibrary.org/economic-and- its decision for coercive action and carried it out
social-development/human-development-report- without Security Council sanctioning. The absence
1994_87e94501-en. of authorisation was rather caused by political factors
rather than a change of attitude on the part of the
Security Council as it adopted a decision allowing for
In 1995, the UN Commission on Global
the use of force in East Timor the same year (Gözen
Governance “argued that recent episodes of
Ercan, 2016, 52).
humanitarian intervention in the Balkans, Africa
and elsewhere by collective security entities (i.e.
NATO and the UN) necessitated a widening of
the security concept to recognize the ‘unrelenting Article 39 of the UN Charter
human costs of violent conflicts’ within boundaries” “The Security Council shall determine the existence
of any threat to the peace, breach of the peace, or act
(Thomas and Tow, 2002, 178).
of aggression and shall make recommendations, or
decide what measures shall be taken in accordance
with Articles 41 and 42, to maintain or restore
Human security international peace and security” (UN, 1945).
According to the Commission on Human
Security (2003, 4), the term refers to Article 41 of the UN Charter
“protecting fundamental freedoms— “The Security Council may decide what measures not
freedoms that are the essence of life[;] … involving the use of armed force are to be employed
to give effect to its decisions, and it may call upon the
protecting people from critical (severe)
Members of the United Nations to apply such measures.
and pervasive (widespread) threats and These may include complete or partial interruption
situations[;] …using processes that build of economic relations and of rail, sea, air, postal,
on people’s strengths and aspirations[;] … telegraphic, radio, and other means of communication,
creating political, social, environmental, and the severance of diplomatic relations” (UN, 1945).
economic, military and cultural systems that
together give people the building blocks of Article 42 of the UN Charter
survival, livelihood and dignity”. “Should the Security Council consider that measures
provided for in Article 41 would be inadequate
or have proved to be inadequate, it may take such
In the 1990s, several cases led to scholarly and action by air, sea, or land forces as may be necessary to
political debates on the legality and legitimacy of maintain or restore international peace and security.
humanitarian interventions, among which were Such action may include demonstrations, blockade,
the cases of Liberia, Northern Iraq, the Former and other operations by air, sea, or land forces of
Yugoslavia, Somalia, Rwanda, Haiti, Sierra Leone, Members of the United Nations” (UN, 1945).
Kosovo and East Timor (ICISS, 2001b, 79).

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In the earlier cases of the 1990s, we can see the initial examples of the flexibility in the Security Council’s
attitude regarding the interpretation of the limits of its mandate. On 3 December 1992, in Resolution 794
the Council stated that “the magnitude of the human tragedy caused by the conflict in Somalia, further
exacerbated by the obstacles being created to the distribution of humanitarian assistance, constitutes a threat
to international peace and security” (UNSC, 1992). Similarly, in 1994, the Security Council established “that
the magnitude of the humanitarian crisis in Rwanda constitutes a threat to peace and security in the region,”
and authorised the military operation by the coalition of the willing “using all necessary means to achieve the
humanitarian objectives set out […] in resolution 925 (1994)” (UNSC, 1994). Just a month later, using a
similar language, the Council authorised the use of force in the case of Haiti (see, Resolution 940).
In this vein, in the 1990s, we see that the Security Council began to consider situations of mass atrocities
as a threat to regional and/or international peace and security, and had been more willing to authorise military
interventions. One major difference with the previous period in this regard was the collective nature of the
interventions. While the Cold War era interventions were unilateral actions mainly justified by the interveners
on grounds of the inherent right of self-defence, military interventions of the 1990s were based on humanitarian
claims and were carried out by either coalitions of the willing or regional
organisations such as NATO and the Economic Community of West
African States Cease-fire Monitoring Group (ECOMOG). What
was common to both periods was that, the uses of force that were not 1
authorised by the Security Council were not accepted as legal. In the post- What are the main differences
Cold War era, although states claimed that they had a right to intervene in between the examples of
situations of mass atrocities and humanitarian justifications were granted the so-called humanitarian
international recognition, it is hard to say that a “right to intervene” was interventions in the Cold War
established under international law. As the most controversial example
era and the 1990s in terms of the
of the 1990s, NATO’s Kosovo intervention ignited the debates on the
international response?
legality and legitimacy of humanitarian interventions and challenged the
understanding that there exists a “right to intervene”.

FROM HUMANITARIAN INTERVENTION TO THE RESPONSIBILITY

TO PROTECT: A CONCEPTUAL TURN?
As Nicholas J. Wheeler (2000, 286) argues, “norms have clearly
changed since the debates in the UN over India’s, Vietnam’s and
Tanzania’s use of force in the 1970s, and Kofi Annan is right to
believe that there is a ‘developing international norm’ in support
of intervention. However, this normative change is subject to the
very important caveat that the society of states shows little or no
enthusiasm for legitimating acts of humanitarian intervention not
authorized by the Security Council”. Hence, it can be observed
that humanitarian crises of the late 20th century have brought
to attention the tension between state sovereignty and collective
protection of human rights.
In the face of the persisting challenges, in his address
to the General Assembly regarding his annual report of
1999, then UN Secretary-General Kofi Annan underlined
the issue of “find[ing] common ground in upholding the
principles of the Charter, and acting in defence of common
humanity” (UNOGPR2P, n.d.b.). The next year, in the 2000
Millennium Report he challenged the member states asking:
Figure 4.2 Former UN Secretary-General Kofi
“if humanitarian intervention is, indeed, an unacceptable
Annan
assault on sovereignty, how should we respond to a Rwanda,
to a Srebrenica, to gross and systematic violation of human Source: UN News & Media. https://www.
rights that offend every precept of our common humanity?” unmultimedia.org/photo/detail.jsp?id=528/5280
(UNOGPR2P, n.d.b.). 3&key=1&query=kofi%20annan&lang=&sf=

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Soon after, with the initiative of the Canadian have interpreted humanitarian intervention as
Ministry of Foreign Affairs a brand-new commission a “right to intervene”, which meant that they
entitled International Commission on Intervention could intervene if and whenever they wanted.
and State Sovereignty (ICISS) was formed to take up Such approach is highly problematic from human
the challenge of finding an answer to human-made security and international law perspectives. First,
disasters. The final output and propositions of the the acceptance of a right to intervene does not
Commission—which comprised of international assure that there will be a timely response to mass
members representative of different regions of atrocities. When humanitarian intervention is
the world—were presented in the “Report on the perceived as a right, it means that states are not
Responsibility to Protect” in December 2001. obliged to take action but can or may do so if they
want to. This, in return, as it was experienced in
Rwanda in the 1990s, may result in inaction even
when an intervention is obviously necessary to
protect populations. Moreover, it does not include
in its toolkit measures for enabling prevention or
post-intervention reconstruction. Second, from a
legal perspective, the interveners are not obliged
to obtain the Security Council’s authorisation as
humanitarian interventions can be carried out by
a variety of actors (such as but not limited to a
willing state, a coalition of states, a regional and/or
international organisation) without an obligation
to acquire consent or authorisation. Hence, as it
was the case in the Cold War era examples, it makes
unilateral interventions much easier and abuses of
the doctrine more likely. Overall, such shortcomings
constitute a challenge to the sovereignty, territorial
integrity and political independence of the targeted
state, as well as to the prohibition of threat and use
of force (ICISS, 2001a, 16).

important

Under the UN Charter, there are two exceptions

to the prohibition of the threat and use of
Figure 4.3 Report of the ICISS on the Responsibility to force. These are the UN Security Council’s
Protect authorisation on grounds of Chapter VII of the
Source: Google Books. At https://books.google. UN Charter based on Articles 39 and 42, and
com.tr/books/about/The_Responsibility_to_Protect. the inherent right of individual or collective self-
html?id=31qFeSkSb5IC&redir_esc=y defence as enshrined under Article 51 of the UN
Charter. Furthermore, in the case of intervention
by invitation, the consent of the legitimate
From Humanitarian Intervention to authorities of the state constitutes a circumstance
the Responsibility to Protect precluding wrongfulness.
In its report, the ICISS introduced the
concept of the Responsibility to Protect, which
is commonly abbreviated as “R2P” (and also as Considering these problematic aspects, in
“RtoP” in the literature). The main aim of the order to be able to tackle the humanitarian
Commission was to shift the terms of the debate challenges of the century, the ICISS aimed to
from the existence of a “right to intervene” towards change the terms of the debate from a right to a
establishing a “responsibility to protect”. Especially responsibility. Understanding the nature of such
in the post-Cold War era, pro-intervention states shift requires a more detailed analysis of what
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humanitarian intervention and R2P entail of. important

When we look at the definition of humanitarian
intervention more closely, we see that it refers to
Please note that humanitarian intervention and
an external use of military force with the aim of
humanitarian aid are not the same concepts
stopping mass atrocities already happening on
and cannot be used interchangeably. The latter as
the territory of a third state. It can be undertaken
an action is peaceful in character, and it is not in
unilaterally or collectively, with or without a
conflict with the notion of state sovereignty as its
Security Council authorisation, or the consent of
deployment is based on the consent of the host
the state that is subjected to the intervention. It
state. On the other hand, humanitarian intervention
is such absence of consent and/or authorisation
is a forceful measure that can be undertaken with or
that makes humanitarian interventions legally
(most commonly) without the consent of the host
controversial. Moreover, it is up to the states and/
state (Griffiths and O’Callaghan, 2002, 145-147).
or the international community whether to act
It is also important to note that humanitarian
upon instances of mass atrocities following their
intervention is not a synonym for peacemaking
occurrence or escalation.
or peacekeeping, which are conducts involving
measures short of use of force and essentially carried
out by UN-authorised missions (or missions of
Humanitarian intervention
regional organisations).
“the use of military means ‘across state
borders’ by a state, a group of states, or an
international and/or regional organisation
(Abiew, 1998, 18) in order to prevent or A Conceptual Turn?
halt ‘widespread and grave violations of the Developed on an understanding of pursuing
fundamental human rights of individuals humanitarian objectives, both humanitarian
other than [… the intervener(s)’s] own intervention and R2P tackle with the problem of
citizens’, (Holzgrefe, 2003, 18) with or grave violations of human rights. Nevertheless, R2P
without the consent of the target state that as a conceptual whole is beyond a doctrine simply
is subjected to the use of force in its own attempting to govern the act of humanitarian
territory as a result of the intervention” intervention. According to the proposition of the
(Gözen Ercan, 2016, 18-19). ICISS, R2P consists of three main components: the
responsibility to prevent, the responsibility to react,
Nevertheless, it is important to note that and the responsibility to rebuild. To begin with,
humanitarian interventions are different from R2P is not only about halting mass atrocities. It
other sorts of military interventions and aggression. primarily aims to prevent humanitarian crises from
Therefore, its outright dismissal as a violation of state happening, whereas humanitarian intervention
sovereignty does not serve justice to the doctrine addresses the issue upon or after occurrence. The
and its ultimate goal of responding to humanitarian objective of prevention is reflected in the ICISS’s
crises. As counter-restrictionist scholars argue, reconceptualisation of the understanding of state
though interveners may also have self-interested sovereignty, which is a primary point of departure
motives for action, when carried out with the for the responsibility to protect understanding
right intentions, the use of force in humanitarian from that of humanitarian intervention. The
intervention is not directed against the sovereignty, ICISS (2001a, p. VIII), posits that sovereign states
territorial integrity and political independence of are to protect their populations “from avoidable
the state, since the ultimate aim is just to stop the catastrophe—from mass murder and rape, from
ongoing flagrant mass violations of human rights starvation—but that when they are unwilling or
without further interference in the internal affairs of unable to do so, […] responsibility must be borne
the state (Gözen Ercan, 2016, 18). Accordingly, it by the broader community of states”. Accordingly,
is the purpose of the intervention that differentiates the Commission grounds R2P on two main
humanitarian interventions from other sorts of principles:
interventions involving the use of force.

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“A. State sovereignty implies responsibility, and the operationalised in three different ways: through
primary responsibility for the protection of its people prevention, reaction and/or rebuilding. Under
lies with the state itself. the responsibility to prevent, the primary
B. Where a population is suffering serious harm, responsibility lies with the state. Secondly, besides
as a result of internal war, insurgency, repression or states’ individual responsibility, the international
state failure, and the state in question is unwilling community is deemed responsible to take the
or unable to halt or avert it, the principle of non- necessary measures to prevent mass atrocity crimes
intervention yields to the international responsibility from happening. The first step, in this regard,
to protect” (ICISS, 2001a, p. XI). is to assist states in fulfilling their individual
responsibility towards their population. As a further
Through these principles, the ICISS first step, peaceful methods can be employed to devise
attempts to transform national sovereignty from a an early response to a potential humanitarian crisis.
principle which traditionally means that states are When prevention fails, the international
“untouchable” in their internal affairs (Robertson, community is assumed to have a responsibility
2004, 119) into one that holds states responsible to react. Accordingly, peaceful measures are to
for the protection of their peoples from mass/ be adopted at an early stage with the aim to stop
grave violations of human rights, hence interprets the atrocities as soon as possible. In the current
“sovereignty as responsibility” (ICISS, 2001a, 13). framework, humanitarian interventions can be
carried out under this responsibility, but only as a
important last resort, namely when peaceful and less coercive
measures fail, and are subjected to the limitations
“Sovereignty as responsibility” understanding of the R2P framework in terms of the scope of
was first introduced in the 1990s by Francis invocation and the right authority.
Deng and his colleagues. Based on this, the
important
ICISS (2001a, p. 13) argues that “sovereignty
as responsibility” also implies that national
authorities have the responsibility to According to the ICISS (2001a, 47)
protect their populations and that they are the “right authority” has the right “to
accountable for their acts of commission and determine, in any particular case, whether a
omission”. military intervention for human protection
purposes should go ahead”. In this vein,
the Commission posits that R2P should be
Secondly, Paragraph B reflects the aim to shift carried out by the UN, and in particular
the terms of the debate from a right to intervene the Security Council. When and if there
to assuming an international responsibility by is a deadlock in the Security Council, then
referring to the responsibility of the international the issue may be transferred to the General
community in the case of the failure of an individual Assembly. The Commission also talks about
state. Such failure may either be the result of the possibility of collective intervention
intentional policies of the state authorities towards by regional or sub-regional organisations
a certain group or a population—which refers to (ICISS, 2001a, 53).
the unwillingness of the state—or the result of
the inability of the authorities to stop a certain
group from attempting or committing atrocity The ICISS (2001a, 29) reminds that
crimes against another group or population within intervention “directly interferes with the capacity of
the country. In this regard, the second ground a domestic authority to operate on its own territory.
principle of R2P requires an international response It effectively displaces the domestic authority
to emerging or escalating humanitarian crises. and aims (at least in the short-term) to address
As noted previously, according to the directly the particular problem or threat that has
conceptualisation of the ICISS, R2P can be arisen”. Therefore, within the R2P framework,
the humanitarian use of military force is included

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only as a complementary measure to be adopted claims of Western states (Bellamy, 2005; Chandler,
under grave circumstances and after exhausting 2004). While this partially had to do with the
other means. This is yet another point of difference timing of the report’s release—which was only
separating R2P from the contemporary notion three months after the 9/11 attacks—the invasion
of humanitarian intervention. Moreover, the of Iraq by the US and its allies also contributed
Commission also recognises that “humanitarian to such scepticism because upon their failure
considerations have been invoked to justify to convince the Security Council to authorise a
intervention, it is obvious that the doctrine gives military intervention in Iraq, they also invoked
room for abuse” (ICISS, 2001b, 67). Therefore, in R2P as one of their later justification attempts
order to prevent potential abuses of the coercive for their unauthorised action (Gözen Ercan,
tools of the framework, the ICISS (2001a, 32- 2016, 58). With incidents that fuelled suspicion
37) suggests threshold criteria as well as other against R2P on the one hand, on the other hand,
precautionary criteria to be considered for deciding there was the escalating case of Darfur where the
on an intervention under six main titles, which international community remained reluctant to
are “right authority, just cause, right intention, take action. In light of these developments, the UN
last resort, proportional means and reasonable Secretary-General Kofi Annan brought R2P into
prospects”. the agenda of the General Assembly, and led the
The third difference arises from the way for the consideration of R2P under the roof
responsibility to rebuild, which is primarily seen as of the UN to achieve the desired support for this
a complementary stage that is to follow in the case norm/framework.
of the realisation of a military intervention under
the responsibility to react. The ICISS (2001a, 39)
notes that the responsibility to rebuild is about the
“commitment to helping to build a durable peace, 2
and promoting good governance and sustainable Is it possible to consider humanitarian
development”. The primary aim, in this regard, is intervention and R2P the two sides
to contribute to the post-conflict reconstruction of the same coin? Discuss why/why
process of the country following the military not?
intervention.
In light of this brief overview of the ICISS’s
conceptualisation, it can be observed that R2P is
a framework that is built on the primary objective THE RESPONSIBILITY TO
of prevention and the idea of early response, which PROTECT UNDER THE UNITED
are complemented by a notion of responsibility on NATIONS
the part of the international community in order At a time when the humanitarian crisis in
to ensure that inaction and/or irresponsible action Darfur was escalating, Kofi Annan took an
is/are not the rule but rather a rare exception. initiative for R2P’s recognition as well as to ensure
With the emphasis placed on the existence of a its implementation by introducing it in the 2004
responsibility, not only of the sovereign state but “Report of the Secretary-General’s High-level
also the international community, R2P aims to Panel on Threats, Challenges and Change” entitled
minimise the need for intervention too. “A More Secure World: our shared responsibility”.
Although the ICISS tried to clearly demarcate He introduced R2P in Part 3, under the title
R2P from humanitarian intervention, states had of “Collective Security and the Use of Force”,
their suspicions about and criticisms against this which focused on matters related to Chapter
new conceptualisation when it was first introduced VII of the UN Charter and internal threats as
in December 2001 (Gözen Ercan, 2016, 57). well as R2P. In this part, Annan referred to the
Those who were sceptical about R2P—especially inefficiencies of the Security Council and noted
the responsibility to react component—considered that mass atrocity situations—which ought not to
it a Trojan Horse in service of the neo-imperialist be shielded by the principle of non-interference

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in the domestic affairs—can well constitute a their individual capacities, to pledge themselves
threat to international security. In this vein, he to refrain from the use of the veto in cases of
referred to R2P as an emerging norm that can be genocide and large-scale human rights abuses”
exercised under the Security Council in cases of (UNGA, 2004, 82).
mass atrocities (UNGA, 2004), and considered As a further step, the next year in March, Annan
it as part of the collective security understanding endorsed R2P in the “Report on UN Reform: In
(Stahn, 2007, 105). Larger Freedom” and remarked:

“We must also move towards embracing and

Paragraph 201 introduces R2P as follows: acting on the ‘responsibility to protect’ potential or
“[…] There is a growing recognition that the actual victims of massive atrocities. The time has come
issue is not the “right to intervene” of any for Governments to be held to account, both to their
State, but the “responsibility to protect” of citizens and to each other, for respect of the dignity
every State when it comes to people suffering of the individual, to which they too often pay only
from avoidable catastrophe–mass murder and lip service. We must move from an era of legislation
rape, ethnic cleansing by forcible expulsion to an era of implementation. Our declared principles
and terror, and deliberate starvation and and our common interests demand no less” (UNGA,
exposure to disease. And there is a growing 2005a, 34–35).
acceptance that while sovereign Governments
have the primary responsibility to protect While he was assertive in urging the Member
their own citizens from such catastrophes, States to adopt and implement R2P, Annan
when they are unable or unwilling to do so aimed to further clarify the limits of R2P vis-à-vis
that responsibility should be taken up by the humanitarian intervention. In the 2005 report,
wider international community—with it R2P was introduced under the title of “the Rule
spanning a continuum involving prevention, of Law”, in connection with the “freedom to live
response to violence, if necessary, and in dignity” while the criteria for intervention were
rebuilding shattered societies. The primary dropped and the scope for invoking R2P was
focus should be on assisting the cessation of narrowed down (Gözen Ercan, 2016, 62). The
violence through mediation and other tools contours of such limitation became clear just a
and the protection of people through such couple months later.
measures as the dispatch of humanitarian,
human rights and police missions. Force, if it
needs to be used, should be deployed as a last
A New Era in Collective Protection
resort” (UNGA, 2004). of Human Rights Under the UN?
Following Annan’s initial efforts for further
Mentioning the controversial aspects of the clarification of what R2P is and why it should
possibility to use force under the R2P framework, be embraced by the UN, a separate section was
Annan also suggested the adoption of criteria reserved for R2P in the World Summit Outcome
similar to that of the ICISS for the decision to Document of October 2005 (A/RES/60/1). The
intervene. Last but not least, drawing lessons from member states of the General Assembly voted for
past experiences wherein the Security Council the adoption of the Document and unanimously
came to a deadlock due to the absence of political accepted the responsibility to protect under
will, Annan urged “the permanent members, in Paragraphs 138 and 139.

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Accordingly, at the state level sovereignty

as responsibility understanding was embraced,
Two paragraphs of the 2005 World
while at the international level the international
Summit Outcome Document on R2P:
community was deemed responsible for the
“138. Each individual State has the
protection of populations when states are unable.
responsibility to protect its populations from
Under the separate heading of the “Responsibility
genocide, war crimes, ethnic cleansing
to Protect Populations from Genocide, War Crimes,
and crimes against humanity. This
Ethnic Cleansing and Crimes Against Humanity,”
responsibility entails the prevention of such
Paragraph 138 defined states’ own responsibility
crimes, including their incitement, through
to protect their populations from the four grave
appropriate and necessary means. We accept
crimes of genocide, war crimes, ethnic cleansing
that responsibility and will act in accordance
and crimes against humanity” (hereinafter, mass
with it. The international community
atrocity crimes), and includes the prevention of
should, as appropriate, encourage and help
these crimes as well as their incitement (UNGA,
States to exercise this responsibility and
2005b). While the international community’s
support the United Nations in establishing
responsibility to assist states in fulfilling their
an early warning capability.
individual responsibility was referred to in
139. The international community,
Paragraph 138, Paragraph 139 urged for collective
through the United Nations, also has the
action on a case-by-case basis. Such action is to
responsibility to use appropriate diplomatic,
be undertaken with the mandate of the Security
humanitarian and other peaceful means, in
Council, first through means pertaining to Chapter
accordance with Chapters VI and VIII of
VI and Chapter VIII of the UN Charter. The
the Charter, to help to protect populations
Paragraph also noted that in grave circumstances
from genocide, war crimes, ethnic cleansing
the use of force can be carried out only as a last
and crimes against humanity. In this context,
resort by the sanctioning of the Security Council
we are prepared to take collective action,
in a timely and decisive manner, through under the mandate of Chapter VII.
the Security Council, in accordance With reference to the report of the ICISS, it can
with the Charter, including Chapter VII, be observed that these two paragraphs are based on
on a case-by-case basis and in cooperation two of the three responsibilities of R2P, namely
with relevant regional organizations as the responsibility to prevent and the responsibility
appropriate, should peaceful means be to react. The section on R2P does not make an
inadequate and national authorities are explicit or implicit reference to the “responsibility
manifestly failing to protect their populations to rebuild”, hence excludes this component from
from genocide, war crimes, ethnic cleansing the R2P framework. Nonetheless, peace-building
and crimes against humanity. We stress the is separately considered through paragraphs 97 to
need for the General Assembly to continue 105 under the framework of the peace-building
consideration of the responsibility to protect commission to be established as an advisory
populations from genocide, war crimes, intergovernmental body by the General Assembly
ethnic cleansing and crimes against humanity (Gözen Ercan, 2016, 62).
and its implications, bearing in mind the In this regard, the main limitations and clarifications
principles of the Charter and international imposed on R2P that led to the milestone consensus
law. We also intend to commit ourselves, as of the member states in adopting the World Summit
necessary and appropriate, to helping States Outcome Document can be summarised as follows.
build capacity to protect their populations First, rather than making a reference to broad terms
from genocide, war crimes, ethnic cleansing such as mass violations of human rights, the scope
and crimes against humanity and to assisting of R2P was clarified on grounds of the four mass
those which are under stress before crises and atrocity crimes, three of which—except for ethnic
conflicts break out” (UNGA, 2005b). cleansing—are legally defined under international
law (in conventions such as the Geneva Conventions
and the Genocide Convention). Second, the Security

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Council was determined as the sole authority in provisions of paragraphs 138 and 139 of the 2005
terms of sanctioning R2P-related actions under World Summit Outcome Document regarding the
Chapters VI, VII and VIII of the UN Charter. In this responsibility to protect populations from genocide,
way, the justification of unilateral and unauthorised war crimes, ethnic cleansing and crimes against
actions through invoking R2P were aimed to be humanity”. Resolution 1706 (2006) also reaffirmed
prevented, while veto once again arose as a potential inter alia the provisions of Paragraphs 138 and
stumbling block. Last but not least, on the one hand, 139 of the 2005 United Nations World Summit
states’ responsibility towards their population was Outcome Document (Gözen Ercan, 2016, 65).
established through the notion of state sovereignty Nevertheless, as the first test case that
by reinterpreting sovereignty as responsibility, challenged the commitment made on paper to
and grounded on the existing international legal R2P, Darfur showed once again that inaction could
framework and conventions, hence creating a binding prevail. Therefore, on 25 September 2007 the new
responsibility. On the other hand, based on the Secretary-General Ban Ki-moon during his address
demands raised during the negotiations of the final to the General Assembly stated that he “will strive
document, international responsibility was defined to translate the concept of our Responsibility to
more cautiously, in a way to avoid the establishment of Protect from words into deeds, to ensure timely
a legal obligation/duty on the part of the international action so that populations do not face genocide,
community (Gözen Ercan, 2016, 63-64). ethnic cleansing and crimes against humanity”
While R2P cannot be considered as a legal (UNMCPR, 2007). In order to do so, he prepared
norm/rule, it is still possible to argue that it has the very first comprehensive report on R2P under
found a place within the UN machinery as evinced the UN (Report A/63/677, dated 12 January 2009)
by the references in Security Council resolutions. focusing on implementation, with the aim “to
For instance, the unanimously adopted Resolution situate the responsibility to protect squarely under
1674 (2006), concerning the protection of civilians the UN roof and within [the] Charter, where it
in armed conflict, in Paragraph 4 reaffirmed “the belongs” (UNSG, 2009).

Figure 4.4 Former UN Secretary-General Ban Ki-moon introducing R2P to the UN General Assembly on 21 July
2009
Source: UN News & Media https://www.unmultimedia.org/photo/detail.jsp?id=404/404551&key=2&query=Form
er%20UN%20Secretary-General%20Ban%20Ki-moon%20introducing%20R2P%20to%20the%20UN&lang=&sf=

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A Three Pillar Strategy for People’s Republic of Korea, Guinea, Kenya,

Implementing R2P Kyrgyzstan, Libya, Mali, Nigeria, South Sudan, Sri
Lanka, Yemen, Zimbabwe, and most recently Syria
In the report, based on the consensus of 2005,
and Iraq have influenced the main theme of the
Ban focused on devising a three-pillar strategy
Secretary-General’s reports. Nevertheless, the main
directed towards tackling issues related to R2P’s
factor of R2P’s implementation in various cases, as
implementation. The three-pillar strategy took
well as its overall acceptance have been determined
up on the two responsibilities—prevention and
by the presence or absence of states’ political will.
reaction—that were reflected in Paragraphs
138 and 139 of the World Summit Outcome
Document. Accordingly, in line with Paragraph important
138, the first pillar focuses on “state responsibility”,
while the second is concerned about “international After the unanimous adoption of R2P
assistance and capacity-building”. On the other with the 2005 World Summit Outcome
hand, the third pillar aims for a “timely and decisive Document, in order to clarify the means
response” as enshrined under Paragraph 139. of implementation, the former and the
current UN Secretary-Generals have
published annual reports on R2P under
Pillar one is about states’ responsibility the following titles: “implementing the
to protect their populations from the responsibility to protect” (2009); “early
commission and incitement of the four warning and assessment” (2010); “The Role
atrocity crimes, which is summed up with of Regional and Subregional Arrangements
the notion of sovereignty as responsibility. in Implementing the Responsibility to
Protect” (2011); “Responsibility to Protect:
Pillar two is about the international Timely and Decisive Response” (2012);
assistance to be provided to states to enable “Responsibility to Protect: State responsibility
them in fulfilling their responsibility to and prevention” (2013); “Fulfilling our
protect their populations. collective responsibility: International
assistance and the responsibility to protect”
Pillar three is about devising a collective, (2014); “A vital and enduring commitment:
“timely and decisive response” in the case of Implementing the responsibility to protect”
the failure of a state, which can be delivered (2015); “Mobilizing collective action: the
through measures ranging from peaceful to next decade of the responsibility to protect”
coercive. Within this pillar, the use of force (2016); “Implementing the responsibility
can be utilised only as a last resort with the to protect: accountability for prevention”
authorisation of the Security Council under (2017); and “Responsibility to Protect from
the mandate of Chapter VII of the UN early warning to early action” (2018).
Charter.

With his report in 2009, Ban engaged the

member states in the first dialogue on the practice
of R2P. With emerging and ongoing humanitarian
crises in the backdrop, the debates continued in the 3
form of informal dialogues each year with the annual Is it possible to consider the
reports of the UN Secretary-General. Among unanimous adoption of R2P in 2005
many humanitarian crises, the situations in Burma, a new era in collective protection of
Central African Republic, Côte d’Ivoire, Darfur, human rights?
Democratic Republic of Congo, the Democratic

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COLLECTIVE take R2P as a legal commitment (Gözen Ercan,

RESPONSIBILITIES AND THE 2016, 81). And the responses to emerging and/or
ongoing crises support such observation since in
SECURITY COUNCIL AS THE
each case where there was reluctance to take action,
MAIN AUTHORITY states have argued that they need to uphold the
While the clarification of its scope and measures sovereignty of the concerned state and reiterated
helped to place R2P in the agenda of the General the principle of non-intervention.
Assembly, as well as in the language of the Security
Since 2005, various cases have put to test the
Council resolutions, it has not been enough to
limits of R2P’s implementation. Darfur being
clearly delineate it from humanitarian intervention,
the first test case showed that the international
and thus to eliminate the concerns of several
community could still remain silent despite the
states about possible abuses of R2P. As mentioned
grim experiences of the 1990s. There were also
previously, while some states of the global south
cases of misapplication of R2P, as in Russia’s claim
have considered R2P as a version of humanitarian
to undertake its responsibility to protect in the case
intervention and approached it with caution, some
of South Ossetia in 2008. There were examples of
others wanted to avoid the acceptance of a legal
successful implementation of the responsibility to
duty to act in the face of mass atrocity crimes.
prevent such as in the cases of Kenya and Guinea.
Regardless of the reiterated commitment to “no
Moreover, there were controversial examples of
more Rwandas”, there seems to be a tendency to
the responsibility to react, such as the decision to
approach R2P from a mainly national interest and
conduct a military intervention in Libya. Although
sovereignty-based perspective. For instance, in the
the Security Council authorised the military
drafting of the two paragraphs of the World Summit
action with Resolution 1973, the way the military
Outcome Document, as Reinold (2010, 67) reveals,
operation was conducted and the regime change
the US pushed for a responsibility understanding
that followed made this a highly debated one.
that has a “more general and moral character” as it
Lack of action in many other cases as well as the
objected to the idea “that either the UN as a whole,
blocking of a Security Council decision with the
or the Security Council, or individual states, have
use of the veto in R2P crises have been the rule
an obligation to intervene under international law”.
rather than the exception in the implementation of
Due to the opposition of the US, the meaning in
R2P in general. When we look at the case of Syria
Paragraph 139 was changed from having “a duty to
for instance, we see that Russia and China have
act” to being prepared to take action, which thus
generously cast veto in decisions concerning any
decreased the potential binding influence of R2P on
sort of action in the country, whether peaceful or
the international community.
coercive. On the contrary, in the case of Libya and
Côte d’Ivore, the very Security Council adopted
R2P’s Implementation under the decisions authorising the use of force. In the latter
UN case, the decision was adopted unanimously,
and the same Russia that later vetoed various
Right after its unanimous adoption under
draft resolutions on Syria on the grounds that
Paragraphs 138 and 139, although its proponents
the measures suggested would be an interference
have considered R2P an emerging legal norm
in the internal affairs of Syria and a breach of its
(Evans, 2006), there has not been enough practical
sovereignty, did not object to the employment of
evidence to prove such optimistic assumption
the use of force on Côte d’Ivore (Gözen Ercan,
right. As the General Assembly follow-up debates
2016, 95-98).
on R2P reveal, states are not necessarily eager to

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Figure 4.5 Security Council Considers the Situation in Syria

Source: UN News & Media. At https://www.unmultimedia.org/photo/detail.jsp?id=782/782519&key=9&query=syria
&lang=&sf=

The Stumbling Blocks

One basic observation that follows from the Code of Conduct
R2P practices of the Security Council in the In October 2013, in his address at the 68th
aftermath of the adoption of the World Summit Session of the General Assembly French
Outcome Document is that among the member President Francois Hollande stated that “the
states selectivity prevails over legal and humanitarian most serious threat of all was inaction; the
concerns, and the veto power of the permanent worst decision was no decision; and the worst
members of the UN hampers the adoption of danger was to see no danger. Every time the
early, timely and decisive action. Therefore, with United Nations did not act, peace suffered”.
each and every new unresolved crisis, we see that Reflecting on the case of Syria, Hollande
the question of UN reform, and specifically the considered the veto as the core of the problem,
Security Council, as well as the adoption of code of and urged the permanent members to adopt
conduct arise as recurring themes of debate. “a code of good conduct”, which meant that
From a legal point of view, it is important that on a voluntary basis the permanent members
R2P action is undertaken upon the authorisation would commit themselves to not to cast the
of the Security Council so that the action is veto while considering mass atrocity crime
legitimated. However, from the perspective of situations (Gözen Ercan, 2016, 122).
implementation, the Security Council being the
sole authority decreases the actual impact of R2P
as a norm since the decision-making process of
the Council is purely political and most often no
4
decision can be taken due to the veto cast when
the permanent members are motivated by their How may the political structure of
national interests in considering a specific case. In the Security Council impact the
this regard, the lack of political will is what is the decisions on collective protection
greatest handicap before the collective protection of human rights such as R2P crises?
of human rights. Discuss with examples.

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Human Rights

Identify the changes in the security understanding and

LO 1 how this impacted the approach towards the use of force
in humanitarian matters in international relations

In its traditional sense, security is most commonly understood as the national security of the state. In
the Cold War years, the Security Council opted for a strict interpretation of the provisions of the UN
Charter in order to achieve the goal of the preservation of international peace and security. Therefore, the
uses of force during this period, regardless of their positive humanitarian outcomes did not and could
not receive authorisation from the Security Council. Moreover, the veto of the permanent members of
the Council not only affected the authorisation of the unilateral interventions but also the sanctioning

Summary
of acts in contravention of the UN Charter. After the end of the Cold War, as a result of the widening
security understanding, human security also gained importance. In the 1990s, collective responses to cases
of mass violations of human rights were experienced, and there were various examples of UN authorised
interventions unlike the Cold War era.

Describe and evaluate the meanings and focus of

LO 2 humanitarian intervention and the responsibility to
protect, and distinguish between the two notions

In 2000, to take up on the challenge raised at the UN General Assembly by the Secretary-General Kofi
Annan, the ICISS was established as an independent commission, and it produced the Report on the
Responsibility to Protect in order to shift the terms of the debate on the right to intervene towards
the assumption of a responsibility to protect. In this vein, dwelling on the question of if and when to
intervene in cases of mass atrocities, three responsibilities were defined under R2P as the responsibility
to prevent, the responsibility to react and the responsibility to rebuild. In this new conceptualisation,
humanitarian intervention is included under the responsibility to react as a last measure. Given that
a humanitarian intervention may or may not be undertaken as a response to already occurring mass
atrocities, the responsibility to protect understanding aims to make sure that an international response is
not optional but a responsibility of the international community in the case of the state’s failure to protect
its population. Also, diverging from the practices of humanitarian intervention, R2P primarily aims to
prevent the occurrence of mass atrocities first.

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Describe and evaluate the scope and tools of the

LO 3 responsibility to protect within the framework of the
United Nations

R2P was introduced into the agenda of the General Assembly in 2004 by then Secretary-General Kofi
Annan. On the way to its adoption with the 2005 World Summit Outcome Document, the limits and
contents of R2P were redefined and some restrictions were imposed. Accordingly, different from the
ICISS’s report, as defined under Paragraphs 138 and 139, R2P can only be invoked in cases of genocide,
war crimes, ethnic cleansing and crimes against humanity. Moreover, the measures to respond to emerging
and escalating situations are also defined under Chapters VI and VIII as well as Chapter VII of the
Summary

UN Charter, with priority given to prevention and peaceful measures. In this vein, R2P under the UN
comprises of the responsibility to prevent and the responsibility to react, but not the responsibility to
rebuild. If and when the use of force is in question, it can only be carried out under the authority
of the Security Council. All in all, these changes in scope and limitations have served to the aim of
preventing abuses and further clarifying the what R2P entails of. On the one hand, they served well to
achieve consensus for the adoption of R2P by the members of the General Assembly. On the other hand,
by limiting action to Security Council sanctioning, veto has once more surfaced as a stumbling block
especially in cases where the permanent members of the Security Council are motivated by factors other
than humanitarian concerns.

Evaluate how the mechanics of the Security Council

LO 4 influences the implementation of norms of collective
protection of human rights

The Security Council’s political structure effects the decisions regarding the realisation of collective
protection of human rights. After the adoption of R2P under the World Summit Outcome Document,
it is not possible to argue that an effective R2P strategy was materialised under the UN despite the
ongoing efforts of the Secretary-Generals and the interactive dialogues in the General Assembly for timely
and decisive implementation. Among the member states selectivity prevails over legal and humanitarian
concerns, and the veto power of the permanent members of the UN hampers the adoption of early, timely
and decisive action. Therefore, with each and every new unresolved crisis, we see that the questions of UN
reform, and specifically the Security Council, as well as the adoption of code of conduct arise as recurring
themes of debate. From a legal point of view, although it is important that R2P action is undertaken
upon the authorisation of the Security Council so that the action is legitimated, from the perspective of
implementation the Security Council being the sole authority decreases the actual impact of R2P as a
norm since the decision-making process is purely political and most often no decision is taken due to veto.

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1 Which of the following bodies can authorise the 5 Which of the following is true?
use of force based on the mandate of Chapter VII?
A. The responsibility to protect is a legal rule.
A. United Nations General Assembly
B. The right to intervene is a legal exception to the
B. United Nations Secretary-General
prohibition of the use of force.

Test Yourself
C. United Nations Security Council
C. The United Nations Security Council can
D.International Commission on Intervention and
State Sovereignty authorize the use of force under R2P.
E. All of the above D.Genocide and crimes against peace are reasons
to invoke R2P.
E. Sovereignty as responsibility covers only the
2 Which of the following statements about protection of the citizens of the concerned state.
R2P is false?
A. R2P refers to the responsibility to prosecute.
B. R2P refers to the responsibility to protect.
6 Which of the following cannot be considered
C. R2P was first introduced by the International as one of the aims of the ICISS Report on the
Commission on Intervention and State Responsibility to Protect?
Sovereignty. A. Creating a conceptual framework for
D.The responsibility to protect belongs to the humanitarian uses of force.
international community when a state is B. Ensuring protection of populations from mass
unwilling or unable to protect its population.
atrocities.
E. According to R2P states are untouchable in
C. Changing the terms of the debate from the
their internal affairs.
existence of a right to intervene towards
assuming a responsibility to protect populations.
3 Which of the following statements about D.Responding to human-made disasters.
humanitarian intervention is false?
E. Legalising the right to intervene as an exception
A. It is classically known as the right to intervene. to the prohibition of the threat and use of force.
B. It is a part of the responsibility to prevent.
C. It is a part of the responsibility to react.
D.It is not a legal exception to the prohibition of
7 Which of the following is not one of the
the threat and use of force. crimes mentioned in Paragraph 138 of the 2005
E. The Security Council can authorize legal World Summit Outcome Document?
humanitarian interventions. A. Crimes against peace
B. Ethnic cleansing
4 Which of the following is the first and C. War crimes
foremost responsibility of individual states under D.Crimes against humanity
R2P? E. Genocide
A. The responsibility to react
B. The responsibility to rebuild
C. The responsibility to prevent
D.The responsibility to refer cases to the ICC
E. None of the above

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8 Which of the following cannot be said for 10 Which of the following statements about
R2P and humanitarian intervention? R2P is true?
A. Humanitarian intervention takes places after A. Paragraph 138 of the 2005 World Summit
mass atrocities are committed whereas R2P also Outcome Document is about the international
Test Yourself

aims to prevent them. community’s responsibility to take timely and

B. R2P is legal rule that legalises humanitarian decisive action under the mandate of the UN
interventions. Security Council.
C. While humanitarian intervention can be B. R2P aims to stop mass atrocity crimes and does
not contain preventive measures.
undertaken by a variety of actors with or
C. Even if authorised by the UN Security
without authorisation, in the case of R2P as
Council, humanitarian military interventions
defined under Paragraphs 138 and 139 of the
undertaken as part of the R2P framework
World Summit Outcome Document, the use
would be considered a crime against peace.
of force can only be adopted after a Security
Council resolution granting authorisation. D Pillar 3 of R2P comprises not only of coercive
measures but also peaceful ones including those
D R2P’s scope is limited to four atrocity crimes
enlisted in Chapter VI of the UN Charter.
while no such limitation is defined for
humanitarian intervention. E. Sovereignty as responsibility means that the
state should protect civilians.
E. In the current framework of R2P, humanitarian
intervention falls under Pillar 3.

9 Which of the following cannot be considered

as one of the weaknesses of R2P?
A. The permanent members of the Security Council
can block a decision regarding an R2P crisis
with the veto and prevent timely and decisive
action.
B. In the current international political system,
sovereignty as responsibility understanding is
not yet powerful enough to overcome traditional
notion of state sovereignty in decision-making.
C. The inclusion of the use of force as a possible
measure under R2P, constitutes reluctance for
states in embracing the notion.
D As R2P is not a legal rule or norm, it cannot
ensure collective action when needed, and
therefore its implementation is dependent on
states’ will.
E. R2P’s inclusion in the official agenda of the UN
General Assembly in 2018.

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Human Rights

If your answer is wrong, please review the

1. C If your answer is wrong, please review the 6. E “From Humanitarian Intervention to the
“A Widening Security Understanding at the
Responsibility to Protect: A Conceptual
Close of the Twentieth Century” section.
Turn?” section.

If your answer is wrong, please review the

Answer Key for “Test Yourself”

2. A 7. A If your answer is wrong, please review the
“From Humanitarian Intervention to the
“The Responsibility to Protect under the
Responsibility to Protect: A Conceptual
United Nations” section.
Turn?” section.

If your answer is wrong, please review the

3. B 8. B If your answer is wrong, please review the
“From Humanitarian Intervention to the
“The Responsibility to Protect under the
Responsibility to Protect: A Conceptual
United Nations” section.
Turn?” section.

If your answer is wrong, please review

4. C If your answer is wrong, please review the 9. E the “Collective Responsibilities and the
“The Responsibility to Protect under the
Security Council as the Main Authority”
United Nations” section.
section.

If your answer is wrong, please review

5. C If your answer is wrong, please review the 10. D the “Collective Responsibilities and the
“The Responsibility to Protect under the
Security Council as the Main Authority”
United Nations” section.
section.

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What are the main differences between the examples of

the so-called humanitarian interventions in the Cold War
era and the 1990s in terms of the international response?
Suggested Answers for “Your Turn”

Despite the fact that the interventions of the Cold War era had positive
humanitarian outcomes, they were motivated by national security interests
and grounded on the inherent right of self-defence. Moreover, they were
unilateral actions individually undertaken by the intervening state, in response
to an alleged aggression from the neighbouring state, which was going
through an internal turmoil. Based on the political conjuncture of the era, as
well as the restrictionist interpretation of the Security Council, none of these
interventions were legally authorised. Despite the lack of authorisation, none
your turn 1 of the intervening states were sanctioned since the Security Council came at
a deadlock due to the use of the veto. On the other hand, the interventions
of the 1990s were not responses to incidents happening on a neighbouring
state. The interveners indicated their aim as to stop ongoing mass violations of
human rights and undertook collective military action. Under the mandate of
Chapter VII of the UN Charter, the Security Council authorised most of these
interventions considering the situations as threats to international or regional
peace and security. In this regard, it is possible to observe an increasing impact
of the human security understanding on the Security Council’s interpretation
of its mandate and determining situations as threats to peace.

Is it possible to consider humanitarian intervention and

R2P the two sides of the same coin? Discuss why/why
not?

After R2P was introduced, there were criticisms that R2P and humanitarian
intervention are the two sides of the same coin. Against the backdrop of the
war on terror, R2P was perceived as a way to justify the right to intervene
and that suspicion was fuelled with the invasion of Iraq. Nevertheless, as a
framework R2P is much larger than humanitarian intervention because it is
based on three different responsibilities that complement each other, which
are the responsibilities to prevent, react, and rebuild. While humanitarian
intervention is a response to already occurring mass violations of human
rights, thus happens after the fact, R2P aims first and foremost to prevent the
emergence of mass atrocity crimes. Accordingly, R2P defines responsibility
at two levels, the first being the responsibility of the sovereign state towards
its population, and the second being the responsibility of the international
your turn 2 community towards populations at risk. Moreover, it rejects the existence of a
right to intervene but rather argues for the existence of a responsibility in order
to ensure a response to mass violations of human rights. Among many others,
these can be considered as the most striking difference with humanitarian
intervention, not only in terms of the general approach towards reaction
to mass atrocity crimes but also in terms of the measures used to achieve
the desired humanitarian result. Moreover, when mass atrocities cannot be
prevented, the responsibility to react can be achieved through early peaceful
measures and/or measures short of use force. Another important difference, in
this regard, is that the use of force under R2P is only a last resort, whereas the
only measure of humanitarian intervention is the use of force. Additionally,
R2P comprises of the responsibility to rebuild, which is another component
missing in humanitarian intervention.

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Human Rights

Is it possible to consider the unanimous adoption of

R2P in 2005 a new era in collective protection of human
rights?

In 2005, member states of the UN General Assembly voted unanimously for

the adoption of the World Summit Outcome Document. Under Paragraphs

Suggested Answers for “Your Turn”

138 and 139, the responsibility to protect understanding was adopted, and this
was a milestone in the sense that sovereignty as responsibility understanding
was accepted for the first time under the roof of the UN while the international
community also embraced a responsibility to protect populations from
genocide, war crimes, ethnic cleansing and crimes against humanity. While
this was an important step in the recognition of the importance and necessity
your turn 3 of collective protection of human rights, in legal terms, R2P did not define
a new norm or rule to change the existing mechanisms. Accordingly, in the
case of state failure, the decision to adopt peaceful and coercive measures were
placed under the mandate of the Security Council. While the assignment of
a responsibility to protect to the international community was an important
change of perspective compared to the understanding of the right to intervene,
lack of a legal obligation/duty defining this responsibility diminished the
expected influence of R2P. Additionally, it can be argued that the existence of
the veto right further curbed the potential impact of R2P.

How may the political structure of the Security Council

impact the decisions on collective protection of human
rights such as R2P crises? Discuss with examples.

The Security Council is a major political organ of the United Nations that can
take legally binding decisions, the mandate of which is defined under Chapter
VII of the UN Charter. It is composed of fifteen member states, ten of which
are non-permanent members and five are permanent members wielding the
veto power. The casting of a single veto is enough to block a decision from
being adopted in the Security Council. In this vein, in matters such as R2P
your turn 4 crises, due to the absence of a legal obligation on the part of the international
community to uphold its responsibility to protect a population that is being
subjected to mass atrocity crimes, there is no guarantee that a decision will
be adopted. To date, experiences based on state practice, such as the cases of
Syria, Myanmar and Darfur show that inaction can easily be fuelled either by
indifference or veto in the Security Council.

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Sovereignty versus Humanitarian Intervention. Rethinking Human Security. Political Science
International Relations, 12, 25-48. Quarterly, 116(4), 585–610.
Evans, G. (2006). From Humanitarian Intervention Murphy, S. D. (1996). Humanitarian Intervention:
to the Responsibility to Protect. Keynote Address The United Nations in an Evolving World Order.
to Symposium on Humanitarian Intervention. Philadelphia: University of Pennsylvania Press.
Madison: University of Wisconsin. Retrieved
Pattison, J. (2010). Humanitarian Intervention and
from http://www.gevans.org/speeches/speech211.
the Responsibility to Protect: Who Should Intervene.
html.
Oxford: Oxford University Press.
Evans, Gareth (2008). The Responsibility to Protect:
Ramsbotham, O., & Woodhouse, T. (1996).
Ending Mass Atrocity Crimes Once and for All
Humanitarian Intervention in Contemporary Conflict:
(Washington: Brookings).
A Reconceptualization. Oxford: Polity Press.

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Robertson, David (2004). A Dictionary of Human United Nations Office on Genocide Prevention and
Rights, Second Edition (London: Europa the Responsibility to Protect (UNOGPR2P)
Publications): 119. (n.d.a). The Genocide Convention. Retrieved
from https://www.un.org/en/genocideprevention/
Schabas, W. (2004). An Introduction to the Criminal
genocide-convention.shtml.
Court. Cambridge: Cambridge University Press.
United Nations Office on Genocide Prevention and
Simma, Bruno (1999). “NATO, the UN and the
the Responsibility to Protect (UNOGPR2P)
Use of Force: Legal Aspects”, European Journal of
(n.d.b). Responsibility to Protect. Retrieved from
International Law, 10: 1-22.
https://www.un.org/en/genocideprevention/.
Stahn, C. (2007). Responsibility to Protect: Political
United Nations Secretary-General (UNSG) (2009).
Rhetoric or Emerging Legal Norm?. The American
Remarks to the General Assembly on the Responsibility
Journal of International Law, 101(1), 990-1020.
to Protect (RtoP). Retrieved from https://www.
Thomas, N., & W. T. Tow (2002). The Utility of un.org/sg/en/content/sg/speeches/2009-07-21/
Human Security: Sovereignty and Humanitarian remarks-general-assembly-responsibility-protect-
Intervention. Security Dialogue, 33(2), 177–192. rtop.
United Nations (UN) (1945). Charter of the United United Nations Security Council (UNSC) (1992).
Nations. Retrieved from https://www.un.org/en/ Resolution 794. Retrieved from https://undocs.
charter-united-nations/. org/S/RES/794(1992).
United Nations (UN) (1948). Convention on the United Nations Security Council (UNSC) (1994).
Prohibition and Punishment of the Crime of Resolution 925. Retrieved from https://undocs.
Genocide. Retrieved from https://www.un.org/en/ org/S/RES/925(1994).
genocideprevention/genocide.shtml.
United Nations Security Council (UNSC) (2006),
United Nations General Assembly (UNGA) (2004). Resolution 1674. Retrieved from https://undocs.
Report of the Secretary General’s Report High-level org/S/RES/1674(2006).
Panel on Threats, Challenges and Change.
United Nations Security Council (UNSC) (2006),
United Nations General Assembly (UNGA). (2005a, Resolution 1706. Retrieved from https://undocs.
March 21). Fifty-ninth Session, In larger Freedom: org/S/RES/1706(2006).
Towards Development, Security and Human Rights
Wheeler, N. J. (2000). Saving Strangers: Humanitarian
for all. Report of the Secretary-General, A/59/2005.
Intervention in International Society. Great Britain:
United Nations General Assembly (UNGA). (2005b, Oxford University Press.
October 24). Resolution Adopted by the General
Assembly on 16 September 2005, ‘60/1. 2005
World Summit Outcome’, A/Res/60/1.
United Nations Meetings Coverage and Press
Releases (UNMCPR) (2007). Secretary-General,
in Address to General Assembly, Lays out Vision
of Stronger, More Flexible, Efficient, Accountable
United Nations, SG/SM/11182, 25 September
2007. Retrieved from http://www.un.org/press/
en/2007/sgsm11182.doc.htm.

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 Protection of Human Rights in the
Chapter 5 Framework of the United Nations
After completing this chapter, you will be able to:
Learning Outcomes

1 2
Describe the framework of the Charter of the
United Nations and bodies working for the Explain core human rights conventions and
promotion and protection of human rights their protection mechanisms

3 Distinguish between the convention

mechanisms and Charter-based mechanisms

Key Terms
Human Rights and Fundamental Freedoms
Purposes of the UN
Promotion and Protection of Human Rights
‘Core’ Human Rights Conventions
Chapter Outline International Bill of Rights
Introduction
Universal Declaration of Human Rights
United Nations Charter Framework
International Covenants
Supervisory System of Conventions
Generations of Human Rights
Charter-Based Mechanisms
Commission on Human Rights
Human Rights Council
Special Procedures
1503 Procedure
Universal Periodic Review

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Human Rights

INTRODUCTION
After the Second World War, the United Nations (UN) made the respect for human rights and
fundamental freedoms one of the rocks that the new world organization was built upon. Preamble of the
Charter speaks of reaffirming the “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”.

Figure 5.1 United Nations General Assembly building

Article 1/3 of the UN Charter declares that mechanisms in time. Special procedures established
one of the purposes of the UN is “to achieve by the Commission on Human Rights (replaced
international co-operation...in promoting and by the Human Rights Council in 2006) provided
encouraging respect for human rights and for a second supervisory mechanism for all members of
fundamental freedoms for all without distinction as the UN.
to race, sex, language, or religion”. In this Chapter, first, relevant articles of the UN
There are six other references to human rights Charter and the conventions made by the UN are
in the Charter, but it does not provide a definition going to be examined. Then, attention is going to
of the term or enumerate these rights. There be given to the Charter-based supervisory bodies
was neither any reference to implementation and mechanisms.
or enforcement, nor to the right of petition or a
court. This was not an accident. Great powers
who prepared Dumbarton Oaks Proposal were
UNITED NATIONS CHARTER
busy with the Security Council and its powers. FRAMEWORK
The human rights rhetoric was deliberately left There are several bodies entrusted with the task
without enforcement mechanisms. This vacuum of promoting human rights by the UN Charter.
was filled by the General Assembly in a short time. Several more were also established during its 75
Since then, an international code of human rights years history. The main pillars of the UN human
was developed under the roof of the organization. rights machinery are the General Assembly, the
The issue of human rights has emerged more and human rights treaties’ monitoring bodies, the
more as one of the subjects to which member states Human Rights Council (Commission on Human
give greater attention and striking institutional and Rights before 2006), and the Secretariat.
procedural changes has occurred since 1945. The Economic and Social Council (ECOSOC),
First job of the UN was preparing a catalogue of which was the other main organ beside the General
the rights. But it was not enough. Secondly, it needed Assembly, entrusted with the promotion of
to make them binding on the states, and thirdly it human rights lost most of its relevance when the
needed to provide supervisory mechanisms. Treaties Commission on Human Rights was abolished in
containing binding commitments were concluded, 2006 and a new sub-organ, Human Rights Council
and all of them have gained binding supervisory was established under the General Assembly.

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 Protection of Human Rights in the Framework of the United Nations

On the other hand, the Secretariat’s relevance action in co-operation with the Organization
was heightened when the position of the High for the achievement of the purposes set forth in
Commissioner for Human Rights was created in Article 55.
1993 under the Secretariat. Articles 62 and 68 are under the Chapter X
devoted to the ECOSOC. Article 62/2 provides
Charter’s Framework that the ECOSOC may make recommendations
for the purpose of promoting respect for, and
After determining the promotion of human
observance of, human rights and fundamental
rights as one of the organization’s purposes in
freedoms for all. Article 68 is the basis of the
Article 1/3, UN Charter gives place to human
Commission of Human Rights since it gives the
rights in its articles 13, 55, 56, 62, 68, and 76.
ECOSOC the power to set up commissions for the
Article 13 gives the General Assembly the task promotion of human rights.
of initiating studies and making recommendations
Article 76 is placed under Chapter XII titled
forassisting in the realization of human rights and
“International Trusteeship System”. It makes the
fundamental freedoms for all without distinction
purposes of the UN as an organization provided
as to race, sex, language, or religion.
in Article 1, also the purposes of the trusteeship
Articles 55 and 56 go under the heading system.
of “International Economic and Social Co-
It can be discerned from the relevant articles that
Operation”. Article 55 states that the UN will
the Charter’s main concern was the discrimination
promote universal respect for, and observance
based on race, sex, language or religion. This
of, human rights and fundamental freedoms
concern was also reflected in the Preamble in the
for all without distinction as to race, sex,
formula of the “faith in the equal rights of men
language, or religion. According to Article 56,
and women”.
all Members promise to take joint and separate

Figure 5.2 Discrimination

Two main organs of the UN, General Assembly and the ECOSOC were given the task of promoting
human rights generally. Early General Assembly resolutions addressed alleged violations of human rights
in several East European countries. Among the earliest acts of the ECOSOC was to create the Commission
on Human Rights as well as on the status of women and to approve the establishment of sub-commissions
on the prevention of discrimination, protection of minorities and on freedom of press (Hannum, 1995:
322). However, first job they had to do was preparing a catalogue of rights.

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Human Rights

The International Bill of Rights: Universal Declaration of Human Rights and

International Covenants
General Assembly approved the ECOSOC’s proposal for the Commission on Human Rights to
prepare an international bill of rights (GA Res. 43(I), Dec. 11,1946). Universal Declaration was adopted
two years later, at 10 December 1948 by the General Assembly with 48 votes and 8 abstentions. The
abstaining states were Byelorussian SSR, Czechoslovakia, Poland, Saudi Arabia, South Africa, Ukrainian
SSR, Yugoslavia, and USSR.
Since General Assembly cannot take binding decisions for the member states, but only recommendations
according the Article 10 of the Charter, Declaration is not a binding document. Some of its provisions,
for example the reference to a
right to asylum, could hardly
be said to represent legal rules.
On the other hand, some of it
constitutes general principles of
law. Its greatest significance is
that it provides an authoritative
guide to the interpretation of
the relevant Charter provisions
(Brownlie, 1993, 570). Moreover,
it propounds the principles upon
which binding conventions were
based and rights which were
going to be provided with binding
power. In addition, many rights it
presented have become customary
international law and binding on
all states. It is such an important
document that the date it was Figure 5.3 Postage stamp of India in commemoration of the 15th
accepted by the General Assembly anniversary of the Universal Declaration of Human Rights, also honoring
is still celebrated as the Human Commission’s Chair, Mrs. Eleanor Roosevelt
Rights Day all over the world.
Rights covered by the Declaration are mostly of the
first generation, namely civil and political rights. Besides
them, it covers some second generation economic, internet
social and cultural rights like right to leisure, right to a You can see the Declaration at https://www.
standard of living, right to education, etc. It was right to un.org/en/universal-declaration-human-
own property, which has caused extensive debates and rights/
abstention of the Soviet Union and its allies.
After the adoption of the Declaration, the Commission continued its work to prepare a covenant on
human rights including measures of implementation. Nevertheless, it proved to be impossible to reconcile
the West and the East over the appropriate implementation measures for civil and political rights on the
one hand and economic, social and cultural rights on the other. At the end, the General Assembly in 1952
authorized the drafting of two covenants instead of one. In 1960, Leland Goodrich wrote that “For the
time being and for the foreseeable future, the role of the United Nations in promoting respect for human
rights will need to be a more limited one” (Goodrich, 1960, 259). Five years later, it is observed that since
members took an obligation to advance human rights, they agreed that they might discuss violations and
even appoint committees of investigation (Eichelberger, 1965, 83).
Two covenants were signed in 1966: International Covenant on Civil and Political Rights (ICCPR),
and International Covenant on Economic, Social and Cultural Rights (ICESCR). The Secretary-

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 Protection of Human Rights in the Framework of the United Nations

General said that it is not surprising that the the right to recognition as a person before the
drafting of the two covenants has taken so long, law and to equality before the law; freedom
since they cover almost the whole of the relations of thought, conscience, religion, opinion,
between the individual and society (Eichelberger, expression, association, and peaceful assembly;
1965, 76). They entered into force ten years later, the prohibition of discrimination; the right of
in 1976. minorities to enjoy their own culture.
These two covenants remain the most Rights included in the ICESPR, inter alia:
comprehensive conventions adopted yet. Both the right to work and to have the opportunity to
begin with a common article that sets forth the choose work freely; the right to just and favorable
right of self-determination for all peoples. It conditions of work including equal pay for equal
also includes the right to dispose of their natural work, safe working conditions, and equality of
resources freely. This common article was the opportunity; the right to form and join trade
center of a most heated argument. Many Western unions; the right to receive social security; the
states also belonging to rich North debated right to an adequate standard of living; the right
whether the Covenants were a proper place for this to education; and the right to participate in
right, since individuals use the human rights per se, cultural life.
on the other hand, the right of self-determination Both covenants oblige parties to submit periodic
is a groups’ right. Nevertheless, majority of the reports on the measures they have adopted to
member states were the newly-independent states ensure the relevant rights. For the ICESCR, these
from colonialism and they argued that if there is reports were to be examined by the ECOSOC
no self-determination there would not be human itself. Nevertheless, it proved to be impossible after
rights as well, since individuals would be deprived unsuccessful attempts of the body, and ended with
of the most basic human need and right. Latter the creation of an expert committee in 1986 to
states’ argumentation won this debate and the review reports.
right of self-determination has taken its place in
ICCPR created a special body of independent
both covenants.
experts consisting of 18-members elected by
Although covenants were prepared together the state parties to oversee its implementation.
and adopted together, they differ in the legal This special body is called the Human Rights
obligations they have created for states. ICCPR Committee. It reviews the periodic reports,
creates a supervisory mechanism to oversee prepares an annual report to the General Assembly
the implementation of the covenant. ICESCR including a summary of discussion of the state
establishes the legal obligation to take steps “with a reports, and adopts “general comments” on
view to achieving progressively the full realization various provisions of the covenant. An Optional
of the rights recognized”, but not a supervisory Protocol gives the Committee the competence to
mechanism. It was added later by an additional receive and consider individual communications
protocol. alleging violations of the covenant. Since the
Rights included in the ICCPR, inter alia: Committee is not a court it does not have the
the right to life and to protection against the authority to issue judgments, but only the power
arbitrary deprivation of life; freedom from torture to forward its views to the state and individual
or cruel, inhuman, or degrading treatment or concerned. Still, this power made it possible for
punishment; freedom from slavery; the right to the Committee to interpret related articles of the
liberty and security of person; the prohibition covenant in a variety of situations. Moreover, its
against arbitrary arrest or detention the right to views are generally accepted by the concerned
a fair and public trial; the right of detainees to states, a situation showing the value of its
be treated with dignity; the prohibition against opinions, even though they do not constitute
imprisonment for debt; freedom of movement binding precedent (Hannum, 1995, 330).
and residence including the right to leave any Universal Declaration and International
country; protection for aliens lawfully within Covenants together make the International Bill of
a state’s territory against arbitrary expulsion; Rights.
the prohibition against retroactive punishment;

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Human Rights

Other Conventions 1989 Convention on the Rights of the

The UN system includes fifteen conventions Child is the most universally ratified human
related to the protection of human rights in total, rights convention. It describes child as “every
nine of them as ‘core’. Two of the nine are 1966 human being below the age of eighteen years”.
International Covenants. Others are below. According to Article 3, in all actions concerning
children, whether undertaken by public or
1965 International Convention on the
private social welfare institutions, courts of law,
Elimination of All Forms of Racial Discrimination
administrative authorities or legislative bodies,
describes racial discrimination in its Article
the best interests of the child shall be a primary
1 as “any distinction, exclusion, restriction or
consideration.
preference based on races, colour, descent or
national or ethnic origin which has the purpose or 1990 International Convention on the
effect of nullifying or impairing the recognition Protection of the Rights of All Migrant Workers
enjoyment or exercise, on an equal footing, of and Members of Their Families defines the
human rights and fundamental freedoms in the term “migrant worker” as a person who is to
political, economic, social cultural or any other be engaged, is engaged or has been engaged
field of public life”. in a remunerated activity in a State of which
he or she is not a national. The Convention is
1979 Convention on the Elimination of All
applicable to all migrant workers and members
Forms of Discrimination against Women specifies
of their families without distinction of any kind
measures for the advancement and empowerment
such as sex, race, colour, language, religion or
of women in private and public life, particularly
conviction, political or other opinion, national,
in the areas of education, employment, health,
ethnic or social origin, nationality, age, economic
marriage and family. It is often described as
position, property, marital status, birth or other
an international bill of rights for women. The
status.
Convention defines discrimination against women
as “...any distinction, exclusion or restriction made 2006 Convention on the Rights of Persons
on the basis of sex which has the effect or purpose of with Disabilities states that persons with
impairing or nullifying the recognition, enjoyment disabilities include those who have long-
or exercise by women, irrespective of their marital term physical, mental, intellectual or sensory
status, on a basis of equality of men and women, impairments which in interaction with various
of human rights and fundamental freedoms in the barriers may hinder their full and effective
political, economic, social, cultural, civil or any participation in society on an equal basis with
other field.” others. According to Article 5, states shall prohibit
all discrimination on the basis of disability and
1984 Convention against Torture and Other
guarantee to persons with disabilities equal and
Cruel, Inhuman or Degrading Treatment or
effective legal protection against discrimination
Punishment defines torture as “any act by which
on all grounds.
severe pain or suffering, whether physical or
mental, is intentionally inflicted on a person for
such purposes as obtaining from him or a third
person information or a confession, punishing him
for an act he or a third person has committed or is
suspected of having committed, or intimidating or
coercing him or a third person, or for any reason
based on discrimination of any kind, when such
pain or suffering is inflicted by or at the instigation
of or with the consent or acquiescence of a public
official or other person acting in an official
capacity”.

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 Protection of Human Rights in the Framework of the United Nations

Figure 5.4 Barriers at work for disabled

2006 International Convention for the Security Council has limited competence
Protection of All Persons from Enforced in this area. It decided that serious and repeated
Disappearance defines the term as “”enforced violations of human rights may constitute threats
disappearance” is considered to be the arrest, against peace under Article 39 and made this
detention, abduction or any other form of determination on several occasions, although it did
deprivation of liberty by agents of the State or not decide for sanctions on every occasion. Another
by persons or groups of persons acting with the aspect of human rights issues which concern the
authorization, support or acquiescence of the Security Council is in the context of the post-
State, followed by a refusal to acknowledge the conflict UN peacebuilding support activities.
deprivation of liberty or by concealment of the Many United Nations peacekeeping operations
fate or whereabouts of the disappeared person, and political and peacebuilding missions also
which place such a person outside the protection cover human rights-related mandates aimed at
of the law.” According to Article 5, the widespread contributing to the protection and promotion of
or systematic practice of enforced disappearance human rights through both immediate and long-
constitutes a crime against humanity as defined in term action; empowering the population to assert
applicable international law and shall attract the and claim their human rights; and enabling State
consequences provided for under such applicable and other national institutions to implement their
international law. human rights obligations and uphold the rule of
law (https://www.un.org/en/sections/what-we-do/
protect-human-rights/index.html).
Main Bodies and Foremost
ECOSOC is the main organ which had
Subsidiary Bodies
principal responsibility for the work aimed
General Assembly has adopted and opened for promoting and protecting human rights. The
signature international conventions prepared by Commission on Human Rights was established
the Commission on Human Rights and/or Human under the ECOSOC and member states were
Rights Council. It also adopted declarations of it chosen by it. Although the Human Rights Council
as well as Universal Declaration of Human Rights. established under the General Assembly, the
Besides that, it created several subsidiary organs ECOSOC’s mandate working for the protection
to help it in the domain of human rights. The of human rights still continues. The Committee
General Assembly’s Third Committee (Social, on Economic, Social and Cultural Rights which
Humanitarian and Cultural) examines a range of works for the application of the CESCR and The
issues, including human rights questions.

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Human Rights

Commission on Women’s Condition are just two was comprised of 53 member states elected by the
examples of it. The UN Permanent Forum on ECOSOC for five years.
Indigenous Issues which is a sub-organ of the The Commission drafted the Covenants,
ECOSOC has a mandate to discuss indigenous and several other conventions. It prepared
issues including human rights. recommendations and declarations adopted both
The Trusteeship Council has suspended its by the ECOSOC and the General Assembly.
activities due to independence of all countries Its work has taken basically two forms: standard
under the trusteeship system. When it was setting, and monitoring and enforcement. In
functional, encouraging respect for human rights order to achieve its goals, the Commission has set
in these countries was one of the objectives of the up special working groups composed of experts.
system it used to supervise. During its lifetime, it achieved a lot of standard
The International Court of Justice has setting, and also tackled some delicate political
contributed to the promotion of human rights by issues such as racial discrimination and women’s
interpreting international norms by means of its rights.
judgments. It is also designated as body of peaceful One of the major criticisms against the
settlement of disputes under some conventions, Commission was that its membership was made up
although the number of cases is low. of undemocratic and repressive states at times. Some
The Secretariat is composed of the Secretary- of these states were even elected as chair and used
General and its staff. One of the Deputy their positions to prevent any examination of their
Secretary-Generals is responsible for human rights own record. Another issue was that some members’
activities. The Office of High Commissioner for blockage of any action of the Commission on the
Human Rights has been set up in 1993 by the human rights situation in a ‘friendly’ state (Matiya,
General Assembly resolution 48/141. The High- 2010, 316). Such high level of politicization and
Commissioner has the rank of deputy secretary- selective handling of the human rights issues caused
general. The ‘Human Rights Up Front’ Initiative comments of the Commission’s lost integrity.
is an initiative by the UN Secretary-General to High Level Panel on Threats, Challenges and
ensure the UN system takes early and effective Change’s report (Doc. A/59/2005) recommended
action, to prevent or respond to serious and large- the review of principal organs. Secretary-General
scale violations of human rights or international Kofi Annan who set up the Panel in 2003 called
humanitarian law. for the abolition of the Commission and set up of a
In sum, the General Assembly and the smaller Human Rights Council under the General
ECOSOC make recommendations to member Assembly instead of the ECOSOC which will have
states of the UN and other actors. The Office membership restricted to countries that will abide
of the High Commissioner for Human Rights by the highest human rights standards.
interacts with and provides support to these bodies As a result, the Commission on Human Rights
and mechanisms. The Security Council deals with was replaced with the Human Rights Council
grave human rights violations, especially in the in 2006 in accordance to the General Assembly
conflict areas. The Secretary-General appoints resolution 60/251. New Council was also moved
special representatives against major human rights to a higher position in the hierarchy of bodies and
violations. organs of the UN and established as a subsidiary
organ of the General Assembly instead of the
ECOSOC.
The Commission on Human Rights to
The establishment of the Council has increased
the Human Rights Council
the review power of the UN significantly
The Commission on Human Rights was (Tomuschat 2016, 24). Composed of 47 states,
an instructed subsidiary body elected by the the Human Rights Council has also a new tool in
ECOSOC. It has started its work together with the shape of the Universal Periodic Review, and an
the foundation of the UN. Article 68 stipulates Advisory Committee which would provide expertise
that the Economic and Social Council shall set up on different thematic issues. Members election
commission for the promotion human rights. It

119
 Protection of Human Rights in the Framework of the United Nations

must take into account whether a candidate state able to exercise good offices, conduct investigations,
ratified the human rights treaties, its observance make appeals, and provide technical advice (Gaer,
of democracy, its contribution to the protection 2014, 282). Nevertheless, by 1993, many of these
of human rights if a previous member returning functions were assigned to special rapporteurs and
to the Council, etc. Members can be suspended treaty bodies. This situation created calls for a post
from the Council by a two-thirds majority of the who could coordinate them and provide strategic
General Assembly. direction. He/she should also have a mandate
independent enough from political bodies so
important that he/she could start examination without their
authorization first.
There are many committees, commissions,
councils, working groups, etc. with the
purpose of promoting human rights. This
abundance of bodies creates confusion about
how a certain body is called. All bodies
established under conventions are called
‘committee’. The ECOSOC’s subsidiary
body was ‘The Commission’. The General
Assembly’s subsidiary body is ‘The Council’.
Working groups are mainly established under
these principal subsidiary bodies. Still, giving
name to these bodies is made in a haphazard
way, and there is not any certain rule about it.

The Council took over the special procedures

and complaint procedure mechanism of the
defunct Commission as well. It meets three times a
year, ten weeks in total compared to the six weeks
of the Commission. It can also convene a special
session.
Figure 5.5 Michelle Bachelet assumed her functions
as the United Nations High Commissioner for Human
Rights on September 1, 2018
internet
Source: https://www.ohchr.org/SiteCollectionImages/
You can find annual report of the Council at
AboutUs/HC-Bachelet-bio.jpg
https://www.ohchr.org/EN/HRBodies/HRC/
Pages/Documents.aspx Resolution 48/141 mandated that the new
UNHCHR be the UN official with principal
responsibility for UN human rights activities
The UN High Commissioner for under the direction and authority of the Secretary-
Human Rights (UNHCHR) General, play an active role in preventing
the continuation of human rights violations
UNHCHR was a post created in 1994 fulfilling
throughout the world, coordinate human rights
a long-hoped expectation. General Assembly
promotion and protection activities throughout
Resolution 48/141 mandated this position in
the UN system, and rationalize, adapt, strengthen
1993. The appointment is made by the General
and streamline the UN machinery in the field of
Assembly for a four-year term.
human rights. High Commissioners carry out
Advocates of it called for a position who could many key activities like developing standards, and
look into individual complaints and country conducting and coordinating visits and reports
situations, and report publicly. He/she should be

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Human Rights

by expert mechanisms. The OHCHR prepares accepting and considering individual complaints if
summaries of information about each state for the relevant convention or an optional protocol provide
Universal Periodic Review procedure. There are 14 this competence. Even though these committees do
country offices with a mandate of human rights not have the competence of a court they continue
observation, protection, technical cooperation to receive individual complaints. The committees
activities and public reporting. These countries created by the conventions consist an important
are Burundi, Cambodia, Chad, Colombia, part of it. They do not take instructions from UN
Guatemala, Guinea, Honduras, Republic of Korea, bodies, but they report to the General Assembly and
Mauritania, Mexico, State of Palestine, Tunisia, interact with the UN Secretariat.
Uganda, Yemen.
Committees
important
As stated above, all core conventions have
a committee to supervise the convention’s
UNHCHR’s country offices should not application. All of them are charged with the
be confused with the country mandates responsibility to receive and review state reports.
established by the Human Rights Council They can formulate general recommendations,
under the special procedures. observations, or comments.
There are three main procedures for bringing
complaints of violations of the provisions of the
Other than responsibilities given to it by the human rights treaties before the human rights treaty
General Assembly’s resolution, there has been great bodies: individual communications; state-to-state
expectations from the High Commissioners. They complaints; and inquiries. Whether they could
have to manage a substantial staff which has grown receive state complaints and individual complaints
from 100 persons to over 1000. They have to show depend on the provisions of the related convention.
independence, exercise a self-activating mandate, However, whether it is made in an optional protocol
but also be accountable both to the victims and the adopted together with the original convention
governments (Graer, 2014, 282). or sometime later than that, all of them have this
option for the state parties willing to accept it.
These committees are:
• 1966 Human Rights Committee (CCPR),
1 • 1985 The Committee on Economic, Social
Of which UN-sponsored core human rights and Cultural Rights (CESCR),
convention is Turkey a party? • 1965 The Committee on the Elimination
of Racial Discrimination (CERD),
• 1979 The Committee on the Elimination of
Discrimination Against Women (CEDAW),
SUPERVISORY SYSTEM OF
CONVENTIONS • 1984 Committee Against Torture (CAT),
Member states are supervised with the aim • 1989 Committee on the Rights of the
of human rights protection by using two main Child (CRC),
approaches. First is the mechanism brought by the • 2004 Committee on Migrant Workers
conventions. Under all of the conventions, state (CMW),
parties are obliged to submit periodic reports. They • 2006 Committee on the Rights of Persons
also endow state parties with the right of complaining with Disabilities (CRPD),
against another state party. All of them have a • 2006 Committee on Enforced
specific committee with the purpose of reviewing Disappearances (CED),
reports, providing general comments on the rights,
• 2007 The Subcommittee on Prevention of
accepting and considering state complaints, and
Torture (SPT).

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 Protection of Human Rights in the Framework of the United Nations

effective reporting and the road which led to the

Universal Periodical Review eventually.
According to one point of view, these committees
internet do not form a system, they were established as
You can learn more about these committees autonomous and separate. Event tough it would
easily by watching simple but illustrative be true when conventions were made, such a
videos prepared by the Office of the High view is not tenable any longer. General Assembly
Commissioner for Human Rights Resolution 66/254 which was adopted in 2012 tells
https://www.ohchr.org/EN/HRBodies/Pages/ us that the treaty bodies make a single system and
TreatyBodies.aspx started an evaluation process on how to strengthen
and enhance the effective functioning of it. It was
decided that chairpersons of the committees would
Their power to transmit general comments gather annually with this goal. Next evaluation of
has become a subject of important discussion in the measures will be made in 2020.
1980. The Covenant on Civil and Political Rights
This resolution is an outcome of the debate
gives the Human Rights Committee authority to
following the Dublin Statement on the Process
transmit its general comments as it may consider
of Strengthening of the United Nations Human
appropriate to the state parties and the ECOSOC.
Rights Treaty Body System (Dublin Statement,
Clear support for an active committee came from
2009). Dublin Statement is a report of current or
the majority of the states, but states from Eastern
former United Nations human rights treaty body
Europe were a distinct minority. Compromise
members acting in a personal capacity. It describes
reached accepted that the “general comments”
the treaty bodies as one system. It defines the
would be addressed to states, the committee could
problems of it as follows: Escalating levels of non-
comment on the implementation of the Covenant,
submission of the required reports; unawareness
protection of human rights, not only promotion
of the public of the system, inadequate financial
and encouragement of it as stated in Article 1/3,
support of the Secretariat. It also warns about
was a proper subject for the committee, and the
the reform initiatives for taking into account the
Secretariat would be asked to make an analysis
ever-changing environment for and structural
of states’ reports and the pattern of questions by
challenges to the protection of human rights,
members (Forsythe, 1985, 253).
and technological and related developments. Any
reform initiative must proceed in consultation
important among concerned stakeholders, and avoid serving
the marginalization of certain categories of human
UN Charter mentions only the promotion rights such as discrimination against women
and encouragement of the human rights, discrimination on the basis of race, and rights of
but not protection of it. This provision the child, disabled and migrant workers.
sometimes used by the states to argue that The result of the evaluation process is another
UN mechanisms cannot receive individual General Assembly resolution numbered 68/268.
communications, since the UN can only It offers a simplified reporting procedure by which
promote and encourage, but not actively states parties would submit a core document and
protect. This argument long past its validity update it as appropriate, with the aim of expedite
now. the reporting process; encourages the human rights
treaty bodies to collaborate towards the elaboration
of an aligned methodology for their dialogue with
In 1981, the committee publicly criticized the states parties; encourages the human rights
Uruguay, rejected a report from Chile, and treaty bodies to adopt short, focused and concrete
criticized the inadequacies of several other reports. concluding observations; recommends more
It also requested the Secretariat to put pressure efficient and effective use of the meetings of states
on Zaire for its failure to file a report on time. parties, by proposing and organizing discussions
This process can be deemed the beginning of the on matters related to the implementation of each

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Human Rights

treaty. It decided to webcast, as soon as feasible, the Second Optional Protocol that was adopted in
the public meetings of the treaty bodies with the 1989 to the issue of abolition of the death penalty.
aim of enhancing the accessibility and visibility of The Committee also publishes its interpretation
the human rights treaty bodies. It allocated extra of the content of human rights provisions, known
meeting time to the treaty bodies and requested the as general comments on thematic issues or its
Secretary-General to provide the corresponding methods of work.
financial and human resources which is one of the The Committee on Economic, Social and
most acute problems of the committees. It endorses Cultural Rights (CESCR) also has 18 independent
Addis Ababa Guidelines (A/67/222) adopted by experts. It was established under ECOSOC
the chairs of the committees of the guidelines on Resolution 1985/17 of 28 May 1985 to carry out
the independence and impartiality of members of the monitoring functions of the Covenant. In
the human rights treaty bodies. addition to the reporting procedure, the Optional
Protocol which entered into force in 2013 provides
the Committee competence to receive and consider
communications from individuals claiming
that their rights under the Covenant have been
internet violated. The Committee may also, under certain
You can follow the consideration of country circumstances, undertake inquiries on grave or
reports by the treaty bodies alive at https:// systematic violations of any of the economic, social
w w w. o h c h r. o r g / E N / H R B o d i e s / Pa g e s / and cultural rights set forth in the Covenant, and
WebcastsTreatyBodies.aspx consider inter-state complaints.
The Committee on the Elimination of Racial
Discrimination (CERD), in addition to the reporting
It also puts on the OCHCR more responsibilities.
procedure, performs monitoring functions: the
It was to include in the documentation prepared
early-warning procedure, the examination of inter-
for elections of members of human rights treaty
state complaints and the examination of individual
bodies an information note on the current situation
complaints if related state party accepted this
with respect to the composition of the treaty body,
procedure by a declaration. Early-warning procedure
reflecting the balance in terms of geographical
is special to the CERD. In 1993, the Committee
distribution and gender representation, professional
adopted a working paper to guide it in dealing with
background and different legal systems, as well as
possible measures to prevent, as well as to respond
the tenure of current members. Moreover, it was to
more effectively to, violations of the Convention. Early
support the states parties in building the capacity to
warning measures are to be directed at preventing
implement their treaty obligations and to provide
existing problems from escalating into conflicts.
in this regard advisory services, technical assistance
Criteria for early warning measures could include
and capacity-building. It was also to work with
the following situations: lack an adequate legislative
the agencies, funds and programmes of the United
basis for defining and prohibiting all forms of racial
Nations system and United Nations country teams,
discrimination, as provided for in the Convention;
in line with their respective mandates.
inadequate implementation of enforcement
mechanisms, including the lack of recourse
Supervisory Power of the procedures; the presence of a pattern of escalating
Committees racial hatred and violence, or racist propaganda or
The Human Rights Committee is a body of 18 appeals to racial intolerance by persons, groups or
independent experts. Methods of regular reports and organizations, notably by elected or other officials; a
inter-state complaint were stipulated in the original significant pattern of racial discrimination evidenced
covenant. In the First Optional Protocol that was in social and economic indicators, and significant
adopted together with the original covenant gives flows of refugees or displaced persons resulting from
the Committee competence to examine individual a pattern of racial discrimination or encroachment
complaints as well. Its competence is extended by on the lands of minority communities. Decisions,
statements or resolutions are adopted and further

123
 Protection of Human Rights in the Framework of the United Nations

action is taken by the Committee

under these procedures that have
been used since 1993 in relation to
more than 20 States parties.
CEDAW Committee consists of
23 experts on women’s rights from
around the world. In accordance
with the Optional Protocol to
the Convention, the Committee
is mandated to (1) receive
communications from individuals
or groups of individuals submitting
claims of violations of rights
protected under the Convention
to the Committee and (2) initiate
inquiries into situations of grave
or systematic violations of women’s
rights. These procedures are
optional and are only available if the
State concerned has accepted them.
Figure 5.6 Joining hands against racial discrimination
Inter-state complaint procedure is
not available under this convention. Source: https://www.ohchr.org/SiteCollectionImages/Bodies/CERD/
joinedhands.jpg

Figure 5.7 Ratification status of CEDAW

Source: https://www.ohchr.org/SiteCollectionImages/Bodies/CEDAW/StatRatCEDAW.jpg

The Committee against Torture (CAT) is a body of 10 independent experts. In addition to the reporting
procedure, the Convention establishes three other mechanisms through which the Committee performs
its monitoring functions: the Committee may also consider individual complaints or communications
from individuals if related state party accepted this procedure by a declaration, undertake inquiries, and
consider inter-state complaints.
The Optional Protocol to the Convention, which entered into force in June 2006, creates the Subcommittee
on Prevention of Torture (SPT). The SPT has a mandate to visit places where persons are deprived of their
liberty in the States parties. Under the Optional Protocol, States parties shall establish an independent
national preventive mechanisms for the prevention of torture at the domestic level which has also a mandate
to inspect places of detention.

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Human Rights

The Committee on the Rights of the Child to an Optional Protocol (in the case of ICCPR,
(CRC) is a body of 18 Independent experts. It CEDAW, CRPD, ICESCR and CRC) or by
also monitors implementation of two Optional making a declaration to that effect under a specific
Protocols to the Convention, on involvement of article of the Convention (in the case of CERD,
children in armed conflict and on sale of children, CAT, CED and CMW).
child prostitution and child pornography. On 19 For inter-state complaints, CAT, CMW, CED,
December 2011, the UN General Assembly approved ICESCR and CRC (Article 21 CAT, article 74
a third Optional Protocol on a communications CMW, article 32 CED, article 10 of the Optional
procedure (OPIC), which allow individual children Protocol to ICESCR, and article 12 of the Optional
to submit complaints regarding specific violations Protocol (on a communications procedure) to the
of their rights under the Convention and its first Convention on the Rights of the Child) set out
two optional protocols. The Protocol entered into a procedure for the relevant Committee itself to
force in April 2014. The Committee is also able to consider complaints from one State party which
consider individual complaints alleging violations considers that another State party is not giving
of the Convention on the Rights of the Child and effect to the provisions of the Convention. This
its first two optional protocols (OPAC and OPSC) procedure applies only to States parties who have
by States parties to the OPIC, as well as to carry made a declaration accepting the competence of
out inquiries into allegations of grave or systematic the Committee in this regard.
violations of rights under the Convention and
CERD, CCPR and CRC (articles 11-13
its two optional protocols. Inter-state complaint
ICERD, articles 41-43 ICCPR) set out a more
procedure is not available under this convention. The
elaborate procedure for the resolution of disputes
specialized agencies, the United Nations Children’s
between States parties over a State’s fulfilment of
Fund, and other United Nations organs are given a
its obligations under the relevant Convention/
special representation at the consideration of issues
Covenant through the establishment of an ad hoc
within the scope of their mandate.
Conciliation Commission. The procedure normally
The Committee on the Protection of the Rights of applies to all States parties to ICERD, but applies
All Migrant Workers and Members of their Families only to States parties to the ICCPR and CRC which
(CMW) is a body of 14 independent experts. Besides have made a declaration accepting the competence
reporting, The Committee will also be able to of the relevant Committees in this regard.
consider individual complaints or communications
First time in the committees’ history, three
once 10 States parties have accepted this procedure.
inter-state complaints were lodged in 2018 with the
It did not enter into the force yet.
CERD. The inter-state communications received
The Committee on the Rights of Persons with are the following: State of Qatar vs. Kingdom
Disabilities (CRPD) is a body of 18 independent of Saudi Arabia; State of Qatar vs. United Arab
experts. Other than reporting, it can receive Emirates; State of Palestine vs. State of Israel. None
individual complaints and undertake inquiries of the other committees has received any inter-
for the state parties who also become a party of state complaint any time.
the optional protocol adopted together with the
For Inquiry, upon receipt of reliable information
original convention.
on serious, grave or systematic violations by a
The Committee on Enforced Disappearances State party of the conventions they monitor,
(CED) is a body of 10 independent experts. In CAT (article 20 CAT), CEDAW (article 8 of the
addition to the reporting and inter-state complaint Optional Protocol to CEDAW), CRPD (article 6
procedures, the Committee is able to receive Optional Protocol to CRPD), CED (article 33 of
individual communications if related state party CED), CESCR (article 11 of the Optional Protocol
made the necessary declaration under the convention. to ICESCR) and CRC (article 13 of the Optional
In summary, anyone can lodge a individual Protocol (on a communications procedure) to
complaint with a Committee against a State if CRC) may initiate inquiries if they have received
state is a party to the treaty in question, and if the reliable information containing well-founded
Committee has competence to examine individual indications of serious or systematic violations of
complaints, either through ratification or accession the conventions in a state party.

125
 Protection of Human Rights in the Framework of the United Nations

One must keep in mind that, these committees are not courts of law. Although they follow procedures
looking judicial and decide whether there is a violation or not, they cannot decide for the payment of a
compensation. Despite that, in 2011, Argentina agreed to pay compensation and a monthly life pension,
and provided a scholarship to an indigenous girl who was raped and subsequently discriminated against by
authorities on the basis of gender and ethnicity. This decision was in implementation of a decision of the
Human Rights Committee. (UN Chronicle, 2016).
Table 5.1 List of the UN Human Rights Treaties and Protocols
1 Convention on the Prevention and Punishment of the Crime of Genocide. Paris, 9 December 1948
International Convention on the Elimination of All Forms of Racial Discrimination. New York, 7
2
March 1966
Amendment to article 8 of the International Convention on the Elimination of All Forms of Racial
2.a
Discrimination. New York, 15 January 1992
3 International Covenant on Economic, Social and Cultural Rights. New York, 16 December 1966
Optional Protocol to the International Covenant on Economic, Social and Cultural Rights. New
3.a
York, 10 December 2008
4 International Covenant on Civil and Political Rights. New York, 16 December 1966
Optional Protocol to the International Covenant on Civil and Political Rights. New York, 16
5
December 1966
Convention on the non-applicability of statutory limitations to war crimes and crimes against
6
humanity. New York, 26 November 1968
International Convention on the Suppression and Punishment of the Crime of Apartheid. New
7
York, 30 November 1973
Convention on the Elimination of All Forms of Discrimination against Women. New York, 18
8
December 1979
Amendment to article 20, paragraph 1 of the Convention on the Elimination of All Forms of
8.a
Discrimination against Women. New York, 22 December 1995
Optional Protocol to the Convention on the Elimination of All Forms of Discrimination against
8.b
Women. New York, 6 October 1999
Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.
9
New York, 10 December 1984
Amendments to articles 17 (7) and 18 (5) of the Convention against Torture and Other Cruel,
9.a
Inhuman or Degrading Treatment or Punishment . New York, 8 September 1992
Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading
9.b
Treatment or Punishment. New York, 18 December 2002
10 International Convention against Apartheid in Sports. New York, 10 December 1985
11 Convention on the Rights of the Child. New York, 20 November 1989
Amendment to article 43 (2) of the Convention on the Rights of the Child. New York, 12 December
11.a
1995
Optional Protocol to the Convention on the Rights of the Child on the involvement of children in
11.b
armed conflict. New York, 25 May 2000
Optional Protocol to the Convention on the Rights of the Child on the sale of children, child
11.c
prostitution and child pornography. New York, 25 May 2000
Optional Protocol to the Convention on the Rights of the Child on a communications procedure.
11.d
New York, 19 December 2011
Second Optional Protocol to the International Covenant on Civil and Political Rights, aiming at the
12
abolition of the death penalty. New York, 15 December 1989
International Convention on the Protection of the Rights of All Migrant Workers and Members of
13
their Families, New York, 18 December 1990
Agreement establishing the Fund for the Development of the Indigenous Peoples of Latin America
14
and the Caribbean. Madrid, 24 July 1992
15 Convention on the Rights of Persons with Disabilities. New York, 13 December 2006
Optional Protocol to the Convention on the Rights of Persons with Disabilities. New York, 13
15.a
December 2006
International Convention for the Protection of All Persons from Enforced Disappearance, New York,
16.
20 December 2006
Source: https://treaties.un.org/pages/Treaties.aspx?id=4&subid=A&lang=en

126
Human Rights

the ECOSOC had passed a resolution stating that

the Commission had “no power to take any action
2
in regard to any complaints concerning human
rights” (ECOSOC Resolution 75 (V) (1947)).
What is Turkey’s reporting status under
conventions?
This ‘no power to act’ attitude continued for the
next twenty years. In the early days of the UN,
the Commission on Human Rights was focused
on elaborating human rights standards. The post-
CHARTER-BASED MECHANISMS
war ‘no power to act’ consensus was not seriously
Charter-based supervisory mechanisms are challenged until 1965, when a group of newly-
based on the Article 1/3 of the UN Charter independent states from Africa, the Middle East and
mentioned above. Let’s assume that one member Asia started to press the UN to respond to human
state of the UN has never become a party to any rights violations associated with colonialism, racism
of the UN’s human rights conventions. Would this and apartheid. The Commission was faced with a
state be immune to any supervision on an issue number of individual petitions from South Africa
which is determined by the Charter’s first article and came under considerable pressure to deal with
as one of the purposes of the organization? The them. In June of that year, the UN Committee
answer is clearly negative. The result of it is the on Decolonization called on the Commission ‘to
special procedures developed by the ECOSOC consider individual petitions concerning human
and its Commission on Human Rights, which are rights violations in the territories under Portuguese
continued by the Human Rights Council since Administration, South Africa and South Rhodesia
2006. This type of supervision was expanded in (Limon and Power, 2014).
2006 by the addition of the Universal Periodical
The authorisation to create necessary tools was
Review.
provided by the ECOSOC in resolution 1164
(XLI) and by the General Assembly in resolution
Special Procedures of the 2144 A (XXI), which invited the Commission ‘to
Commission/Council give urgent consideration to ways and means of
Any member state can be examined under improving the capacity of the UN to put a stop
special procedures even though it has never to violations of human rights wherever they may
been a party to any convention made under the occur.’
auspice of the UN. They are created according to First mandate going under this heading was
the implied powers of the UN whose purposes established in 1967, an Ad Hoc Group of Experts
include the protection of human rights. Under on South Africa. The Commission departed from
implied powers, an international organization previous practice and established the ad-hoc working
can create necessary means to achieve its purpose, group of experts mentioned above to investigate
even though a certain means is not mentioned in the situation of human rights in Southern Africa.
its founding treaty. The ad-hoc working group can be considered as
In the beginning, true to the word of the the first Special Procedure of the Commission on
UN Charter Article 1/3 which refers to only Human Rights. The special procedures mechanism
promotion and encouragement of human rights, was thus born.

127
 Protection of Human Rights in the Framework of the United Nations

Figure 5.8 Reconstructed apartheid bench in front of the High Court building in Cape Town, South Africa

Then, to confirm its general and permanent specific to them by the Commission. First special
prerogative to deal with human rights violations procedure with a country mandate was established
the Commission asked the ECOSOC to include in 1979 for Chile.
‘the power to recommend and adopt general and During the second half of the 1970s, the
specific measures to deal with violation of human phenomenon of disappearances was particularly
rights’ in its terms of reference. This request associated with Argentina. At the Commission’s
was significant because it led to the ECOSOC 1979 session, a draft resolution was introduced
resolution 1235 started procedure which is by Western states concerning the practice of
commonly known as 1235 Procedure and also disappearances. This mentioned Argentina by name
constituted the legal basis for the establishment of and proposed the establishment of a mechanism
future special procedures. with more or less similar competences to the Ad
Under 1235 Procedure, the Commission Hoc Working Group on Chile. But, fearful of being
focused solely on racial discrimination and ‘shamed’ in the international arena, Argentina
colonialism. After 1970, its focus shifted to launched a massive diplomatic offensive. At the
political developments in Latin America. In 1975, Commission’s 1980 session, Western arguments
the Commission established an ad-hoc working that disappearances were not limited to Chile, a
group to inquire into the situation of human weakening of Non-Aligned Movement support
rights in Chile. In 1979, this working group was for Argentina and the effects of the enlargement of
replaced by a special rapporteur and two experts the Commission from 32 to 43 members combined
to study the fate of the disappeared in Chile. together and moved the Commission towards
This led to the establishment of the first thematic establishing a new special procedure. However,
special procedure in 1980: the Working Group on by arguing that the creation of a country-specific
Enforced Disappearances to deal with the question mechanism would be discriminatory, Argentina
of enforced disappearances throughout the world eventually succeeded in channeling Commission
(CHR resolution 20 (XXXVI)). action towards the adoption of a mechanism with
This development showed that although first the first thematic mandate: the Working Group
two of them were dealing with specific issues, on enforced or involuntary disappearances (Limon
the special procedures were not considered as and Power, 2014, 7).

128
Human Rights

about state noncooperation, 74 (17%) centred

on secretariat support and the management of
resources and 20 (5%) on implementation and
internet
follow-up. Unsurprisingly, the negotiations failed
You can read about this part of history of
to agree on any significant changes to the status
Argentina at https://www.history.com/news/
quo (Limon and Power, 2014, 16).
mothers-plaza-de-mayo-disappeared-children-
dirty-war-argentina Member states do not have to accept mandate
holders into its country, but it cannot stop the
mission from carrying out its mandate either. If
After that, special procedures has entered a a good working relationship can be established,
phase of auto-development. In 1980, there were it would also be reported as a contributing factor
only 4 mandates. By 1990, the number had to an amelioration of its position. Even when
grown to 14, and in 2000 had increased to 34. cooperation is denied, careful work can be done
By the time the Commission on Human Rights to provide impartial factual information (Higgins,
was replaced by the Human Rights Council in 1998, 107).
2006, there were 40 special procedure mandates. As of July 2019, there are 12 country mandates
Since then, the rapid growth in the number of and 44 thematic mandates on a wide range of
mandates has continued, and in May 2014, the topics.
number of active special procedure mandates Since then, system of independent experts has
reached 50 for the first time (Limon and Power, grown in an ad hoc fashion (Piccone, 2014, 288).
2014, 8). Thematic mandates have shown a In 1990, there were six thematic mandates covering
steady growth. enforced disappearances, extrajudicial, summary
In 1993, Special Procedures began convening or arbitrary executions, religious intolerance,
annual meetings, which allowed them to work mercenaries, torture and sale of children. They
together to further systematise the mechanism. now cover all regions and rights: civil, cultural,
In 1999, they adopted a Manual of Operations economic, political, and social.
aiming to provide guidance to mandate- As the UNHCHR stated, “The Special
holders. At their 12th annual meeting in 2005, Procedures of the Human Rights Council
they established a five person Coordination are independent human rights experts with
Committee. mandates to report and advise on human rights
General Assembly resolution 60/251 from a thematic or country-specific perspective”
establishing the Human Rights Council also (https://www.ohchr.org/EN/HRBodies/SP/Pages/
stipulated that the new body should ‘review Introduction.aspx).
its work and functioning five years after its Special procedures are either an individual or a
establishment.’ In principle this offered another working group composed of five members, one from
opportunity for states to consider the challenges each of the five United Nations regional groupings.
facing the special procedures system so that it They are appointed by the Human Rights Council
might better respond to its original 1967 mandate and serve in their personal capacities. They are not
to study situations which reveal a consistent United Nations staff members and do not receive
pattern of violations of human rights. However, in financial remuneration. The independent status of
practice the 2011 review achieved nothing more the mandate-holders is crucial for them to be able
than a further crystallisation of opposing state to fulfil their functions in impartiality. A mandate-
visions of what the mechanism is and what it is holder’s tenure in a given function, whether it is
there to do. Of the 437 state proposals put forward a thematic or country mandate, is limited to a
on the question of special procedure reform, maximum of six years.
154 (35%) presented (conflicting) views on the Generally, in the process of carrying out their
question of independence and accountability, 31 mandates, special procedures may undertake
(7%) focused on the ‘proliferation’ of mandates, in-person country visits to assess human rights
75 (17%) focused on what to do (or not to do) violations; communicate directly with States

129
 Protection of Human Rights in the Framework of the United Nations

on alleged human rights violation by sending

urgent appeals or letters of allegation; make
recommendations to States for preventing,
ending, or remedying violations; convene
expert consultations; conduct thematic studies;
raise awareness of human rights issues; provide
advice for adherence to human rights standards;
receive information from individuals and civil
society; engage in advocacy, and contribute
to the overall development of human rights
standards.
As of January 2018, 170 States have been visited
by at least one special procedure mandate holder,
while 23 States have never been visited. Over 100
countries have extended standing invitations to all
thematic special procedures.
At their annual meeting in 2005, Special
Procedures mandate-holders established
a Coordination Committee to facilitate
coordination amongst mandate-holders and act as
a bridge between them and OHCHR, the broader
UN human rights framework, and stakeholders. Figure 5.9 All special procedures mandate holders and
The Code of Conduct adopted by the Council their contact information are open to the public
in 2007 and the Manual of Operations adopted
Source: https://www.ohchr.org/Documents/HRBodies/
by Special Procedures mandate holders during
SP/VisualDirectoryNovember2018_en.pdf
their Annual Meeting in 2008 provide guidelines
on the working methods of Special Procedures.
Mandate-holders also established an Internal The 1503 Procedure
Advisory Procedure to review practices and The ECOSOC also created the 1235
working methods. The procedure was devised Procedure, which should not be confused with the
to enhance the independence and effectiveness 1503 Procedure. The 1235 Procedure allowed the
of Special procedures and cooperation by States, Commission on Human Rights to create an ad hoc
and to contribute to self-regulation of the special working group of its own members to conduct
procedures system and individual mandate investigations concerning systematic and grave
holders. human rights violations, and first of its kind as
In its resolution 5/1 and 16/21, the Human stated earlier. Nevertheless, that procedure used in
Rights Council clarified the parameters related to a limited way, focusing only on the issues related to
the selection and appointment of special procedures racial discrimination and colonialism.
mandate-holders: Candidates can be nominated In 1970, the ECOSOC allowed the
by Governments, the Regional Groups operating Commission to examine communications and
within the United Nations system, international replies of governments if they appear to reveal a
organizations or their offices, non-governmental consistent pattern of gross violations of human
organizations, other human rights bodies and rights (https://www.ohchr.org/EN/HRBodies/
individuals. Petitions/Pages/1503Procedure.aspx#_ftn16).
Commonly referred as 1503 procedure, it was
considered as a major step forward. Governments
concerned were somewhat compelled to do
something about them, as no country wished to
be put under spotlight for violating human rights
(Matiya, 2010, 315).

130
Human Rights

The procedure was substantially amended The Council has a variety of options for dealing
in 2000 by the ECOSOC to make it more with situations that come before it. It may elect to
efficient. Any individual or group claiming to be keep a situation under review in the light of any
the victim of such human rights violations may further information received or it may keep it
submit a complaint, as may any other person under review and appoint an independent expert.
or group with direct and reliable knowledge Alternatively, it may discontinue the matter under
of such violations. Where an NGO submits a the 1503 procedure and take it up instead under a
complaint, it must be acting in good faith and in public procedure, or discontinue the matter when
accordance with recognized principles of human no further consideration is necessary.
rights. The organization should also have reliable The 1503 procedure has advantages and
direct evidence of the situation it is describing. A disadvantages for a complainant. The pluses of
complaint cannot be anonymous. the 1503 procedure are that a complaint can be
Before complaining under 1503 procedure, all submitted against any country without needing to
local remedies must be exhausted and complaint check whether it has ratified a particular treaty or
must be made in a reasonable time after exhaustion. limited its obligations under the instrument. Once
It also should not be under consideration in any a complaint is submitted, complainant does not
other procedure in the UN system and should have to respond again at a later point with further
not use abusive or insulting language. Lastly, no information, the initial complaint is sufficient.
complaint should be politically motivated or run With the 1503 procedure, it is possible for a
counter to the principles of the United Nations. complaint to reach the highest level of the United
The Secretariat screens all complaints. If it Nations human rights machinery. It may thus
is not rejected as manifestly ill-founded by the result in very significant pressure being brought
Secretariat acting jointly with the Chairperson to bear upon a State to change laws, policies or
of the Working Group on Communications, practices that infringe internationally guaranteed
it makes to the next stage of the process in human rights. Possible drawbacks of the procedure
which it will be forwarded to the Government are that complainant will not be informed of
concerned for comment. Government replies the decisions taken at the various stages of the
remain confidential. The Working Group on process or the reasons for them. Nor will he/she be
Communications examines complaints and any informed of the relevant Government’s responses.
replies received from Governments with a view to Also the procedure can be protracted and there is
bringing to the attention of the Working Group on no provision for urgent measures of protection.
Situations. The proceedings of the Working Group Although the names of the states examined under
are confidential. the 1503 procedure is publicly announced, its
reports are kept private.
The Working Group on Situations decides
whether the situation referred to it appears to reveal
a consistent pattern of gross and reliably attested The Universal Periodic Review
violations of human rights and fundamental The Universal Periodic Review was set up
freedoms. This procedure is conducted on the in 2006 together with the establishment of the
basis of written material only, so that neither Human Rights Council. It is a State-driven process
Governments nor complainants appear before any which provides the opportunity for each State to
working group. declare what actions they have taken to improve
The Human Rights Council considers the the human rights situations in their countries and
situations referred to it by the Working Group on to fulfil their human rights obligations (https://
Situations. Representatives of the Governments www.ohchr.org/en/hrbodies/upr/pages/uprmain.
concerned are invited to address the Commission aspx).
and answer questions. At a subsequent meeting, the The examination proceeds on a four-year cycle.
Commission considers its final decision, again in All member states of the UN are obliged to submit
closed session. Representatives of the Government their report for the examination of other member
concerned may also be present at this point. states. The final stage of it is a three-hour meeting.

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 Protection of Human Rights in the Framework of the United Nations

Before that, report of the state is transmitted to it. The final outcome of the review is the pledges
the member states. Their comments and questions or commitments of the reviewed state to the
are also transmitted to the reporting state. NGOs recommendations made. Most important of them
and national human rights institutions can submit are the pledges to ratify certain conventions on
reports to the Universal Periodic Review process human rights and to strengthen their cooperation
for the first time. with special procedures.
Three-hour meeting is made upon this
background and is enough for raising essential
shortcomings without becoming an interrogation
(Tomuschat, 2016, 24). The review is carried
3
out by all members sitting as a working group,
not as plenary and having a dialogue with the Which 12 states are under country mandates
reviewed state (Matiya, 2010, 319). There is not examination? Choose one of them and explain
a report of the Council prepared at the end of why this state is on the list.

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Human Rights

Describe the framework of the Charter of the

LO 1 United Nations and bodies working for the
promotion and protection of human rights.

UN Charter refers to human rights in seven places. First one is in Article 1 determining the purposes of
the organization and making the promotion of human rights as one of the purposes. Other references
are related to the main bodies’ powers and tasks. UN Charter gives almost all main bodies a task to
promote human rights all over the world according to their area of responsibility. Leading position was
given to the ECOSOC by entrusting it with the principal subsidiary body, The Commission on Human

Summary
Rights. Nevertheless, the General Assembly asserted itself as the leading main body on issues related to the
protection of human rights. Already subordinate to the General Assembly, the ECOSOC has retained the
Commission until 2006, and then lost most of its power on this issue to the most comprehensive body of
the UN with the establishment of the Human Rights Council under the General Assembly. Conventions
prepared by the Commission and adopted by the General Assembly also have their own committees
supervising the implementation of their particular convention. Another subsidiary body which must be
mentioned is the High Commissioner of Human Rights. There are many others working and helping
with the fulfilment of this purpose of the organization, but the post of the HCHR is the one long-wished
for until its creation in 1993. Most important function of it looks like the coordination it provides to the
scattered mechanism of the UN on this issue.

Explain core human rights

LO 2 conventions and their protection
mechanisms.

There are 15 conventions in the UN system, 9 of them are called ‘core’. 1965 Convention on Racial
Discrimination is the oldest. Two International Covenants (Convention on Civil and Political Rights,
and convention on Economic, Social and Cultural Rights) came one year after it. Then, the Commission
started to deal with several specific issues and delivered conventions on them: 1979 Convention on the
Elimination of Discrimination against Women, 1984 Convention against Torture, 1989 Convention
on the Rights of the Child, 1990 Convention of the Rights of All Migrant Workers, 2006 Convention
on Persons with Disabilities 2006 Convention on Enforced Disappearances. With the abolishing of the
Commission in 2006 and establishment of the Human Rights Council, it seems that its function of standard
setting was also finished. All these conventions have a committee supervising the implementation of their
respective convention. All of them receive periodic reports, they can receive state complaints (only three
by now in the framework of the Convention on Racial Discrimination), and they can receive individual
communications if related state party accepted it beforehand. They can also issue general comments on
several articles of their convention and explain to the parties how committee interprets them.

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 Protection of Human Rights in the Framework of the United Nations

Distinguish between the

LO 3 convention mechanisms and
Charter-based mechanisms.

Convention mechanisms are established by the related convention. They are binding only on state parties
of the said convention, and no one else. If a state is not a party to a certain convention, it means that
this state does not have any legal obligation under it. On the other hand, Charter-based mechanisms
are established by the bodies of the UN, either main or subsidiary, according to the Article 1/3 of the
Charter. Since the promotion and encouragement of human rights is one of the purposes of the UN, all
Summary

members must be accountable. If an international organization does not have the necessary means to
achieve its purposes, then organization’s bodies can create these means to achieve it. It is called implied
powers. The Commission on Human Rights stated it had no power to take any action in regard to any
complaints concerning human rights in 1947, this attitude has changed after twenty years and it departed
from previous practice by establishing an ad hoc working group to investigate the situation in Southern
Africa in 1967. Another Charter-based mechanism is the Universal Periodic Review established in 2009.
It is not accepted as a special procedure, but certainly one of the Charter-based mechanism in which every
member state of the UN submit a general report on the situation of human rights in its country in a 4-year
cycle, and express its pledges and commitments at the end of it.

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Human Rights

1 Which one is not given in the Article 1/3 as 4 Which one is true about the Human Rights
one of the basis of distinction? Council?
A. Race A. It was established under the Secretariat.
B. Sex B. It consists of 53 member states.

Test Yourself
C. Language C. Member states are chosen by the ECOSOC.
D. Ethnic origin D. It was established in 1947.
E. Religion E. It reviews all member states under the Universal
Periodic Review.
2 Which documents is The International Bill of
Rights consisting of? 5 Which supervisory mechanism is common
A. Universal Declaration of Human Rights, to all conventions?
International Covenant on Civil and Political A. Early-warning
Rights, International Covenant on Economic, B. Periodic reporting
Social and Cultural Rights
C. Individual communications
B. International Covenant on Civil and Political
D. State complaints
Rights, International Covenant on Economic,
Social and Cultural Rights E. Country visits
C. Universal Declaration of Human Rights,
International Covenant on Civil and Political 6 Which one is wrong about the committees
Rights of conventions?
D. Universal Declaration of Human Rights,
A. All core conventions have its own committee
International Covenant on Economic, Social
working for it.
and Cultural Rights
B. All committees make a single system.
E. Universal Declaration of Human Rights
C. They can decide for the payment of a
compensation if there is a violation.
3 Which convention is not one of the ‘core’ D. The committees can transmit general comments
human rights conventions? to the state parties.
A. 1948 Convention on the Prevention and E. Members of the committees have to be
Punishment of the Crime of Genocide independent and impartial.
B. 1965 International Convention on
the Elimination of All Forms of Racial 7 Which one is the first special procedure?
Discrimination
C. 1979 Convention on the Elimination of All A. 1235 Procedure
Forms of Discrimination against Women B. 1503 Procedure
D. 1984 Convention against Torture and Other C. Ad Hoc Group of Experts on South Africa
Cruel, Inhuman or Degrading Treatment or D. Working Group on Enforced Disappearances
Punishment E. Ad Hoc Working Group to inquire situations of
E. 1990 International Convention on the human rights in Chile
Protection of the Rights of All Migrant Workers
and Members of Their Families

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 Protection of Human Rights in the Framework of the United Nations

8 Which one is not true for the special 10 Which one established together with the
procedure mandate holders? Human Rights Council in 2006?
A. Mandate holders are not paid UN staff A. 1235 Procedure
members. B. 1503 Procedure
Test Yourself

B. Country mandate holders must be approved by C. High Commissioner of Human Rights

the related state. D. Universal Periodic Review
C. Special mandates can be an individual or a E. Human Rights Committee
working group.
D. Mandate holders are appointed by the Human
Rights Council.
E. Mandate holders tenure is limited to a
maximum of six years.

9 Which one is wrong about the 1503

Procedure?
A. Applications are screened by the Human Rights
Council’s Advisory Committee.
B. All local remedies must be exhausted before the
application.
C. A complaint can be made against any member
state of the UN.
D. Complainant is not informed of the relevant
state’s responses.
E. Reports of the procedure are kept private.

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Human Rights

If your answer is wrong, please review

1. D If your answer is wrong, please review the 6. C
the “Supervisory System of Conventions”
“Introduction” section.
section.

Answer Key for “Test Yourself”

If your answer is wrong, please review the
2. A 7. C If your answer is wrong, please review the
“United Nations Charter Framework”
“Charter-Based Mechanisms” section.
section.

If your answer is wrong, please review the

3. A 8. B If your answer is wrong, please review the
“United Nations Charter Framework”
“Charter-Based Mechanisms” section.
section.

If your answer is wrong, please review the

4. E 9. A If your answer is wrong, please review the
“United Nations Charter Framework”
“Charter-Based Mechanisms” section.
section.

If your answer is wrong, please review

5. B the “Supervisory System of Conventions”
10. D If your answer is wrong, please review the
“Charter-Based Mechanisms” section.
section.

Suggested Answers for “Your Turn”

To Which UN-sponsored core human rights conventions
is Turkey party?

International Covenant on Civil and Political Rights (ICCPR) 1966 and its
two Optional Protocols on the Right of Individual Communications and on
the Death Penalty
International Covenant on Economic, Social and Cultural Rights (ICESCR)
1966 and its Optional Protocol establishing the ICESCR Committee 2008
Convention on the Elimination of all forms of Racial Discrimination (CERD)
1966
Convention on the Elimination of all forms of Discrimination Against
Women (CEDAW) 1979 and its Optional Protocol on the Right of Individual
your turn 1 or Group Communications
Convention Against Torture and other Cruel, Inhuman or Degrading
Treatment or Punishment (CAT) 1984 and its Optional Protocol establishing
the National Preventive Mechanism 2008
Convention on the Rights of the Child (CRC) 1989 and its three Optional
Protocols on Sale of Children, Child Prostitution and Child Pornography
and on Involvement of Children in Armed Conflicts and on Individual
Complaints
Convention on the Protection of All Migrant Workers and Members of their
Families (CMW) 1990
Convention on the Rights of Persons with Disabilities (CRPD) 2008

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 Protection of Human Rights in the Framework of the United Nations

What is Turkey’s reporting status under conventions?

Suggested Answers for “Your Turn”

Like many member states, Turkey is also late in the reporting process under
the conventions. This has always been one of the major grievances about the
supervisory mechanism of the conventions. Although many changes made
to resolve this problem, there is always a backlog of reports waiting to be
your turn 2 examined and states submitting their report late. Turkey is also late under the
ICCPR, the ICESCR and the CRC submitting its periodic report. Report
submitted under the CRPD is waiting for review. Under the ICERD, the
CEDAW, the CAT and the CMW, its reports were reviewed in the previous
cycle, in the period of 2015-2016.

Which 12 states are under country mandates

examination? Choose one of them and explain why this
state is on the list.

Belarus, Central African Republic, Eritrea, Iran, Kampuchea, North Korea,

Mali, Myanmar, Palestine, Somalia, Sudan, Syria.
I choose Belarus.
Human rights situation in Belarus has never been very good since its
independence from the Soviet Union. In 1994, Aleksandr Lukashenko
elected as president. Reports about corruption, broadening of the powers of
the president, going exile of the opposition leader, Minsk Spring in 1996,
dissolution of the parliament at the end of 1996, etc. all contributed to the
deterioration of the country’s human rights record. In 1999, there had been
several disappearances of top opposition figures. Belarus has a “devastating”
record on human rights which has worsened over two decades as the president
has consolidated his grip on absolute power, as stated in the report of the
Special Rapporteur on human rights in Belarus in 2017.
The Human Rights Council describes situation in Belarus of a structural and
your turn 3 endemic nature. There were systematic restrictions on human rights, especially
in the case of the freedoms of association, of assembly, and of opinion and
expression, as well as the guarantees of due process and fair trial. Government’s
lack of response to the questions about cases of enforced disappearance of
political opponents and denial of access to the Special Rapporteur on the
situation of human rights in Belarus also created grave concern. Moreover,
most international observers regarded the polling in parliamentary elections
on 23 September 2012 as inconsistent with basic standards for competitive,
free and fair elections.
As a result of these concerns, the Council called upon Belarus to carry out
a comprehensive review of relevant legislation and policies, to carry out a
comprehensive reform of justice sector, release all political prisoners. What
caused the establishment of this country mandate was the denial of Belarus
to accept several special procedure mandate holders and Office of the High
Commissioner of Human Rights into the country. As a result of Belarus’
attitude of not to cooperate, it created a country mandate in 2012.

138
Human Rights

References
Arosemana, G. (2017). A Rational Reconstruction of Matiya, J. (2010). Repositioning the Internatinal
United Nations Human Rights Law. Ratio Juris, Human Rights Protection System: the UN
30(3), 372-386. Human Rights Council. Commonwealth Law
Bulletin, 36(2), 313-324.
Brownlie, I. (1993). Principles of Public International
Law (4th ed.). Oxford: Clarendon Press. The Evolving Role of the United Nations in Securing
Human Rights. (2016). UN Chronicle, LIII/4.
Dublin Statement on the Process of Strengthening of the
United Nations Human Rights Treaty Body System, Piccone, T. (2014). Human Rights Special Procedures:
19 November 2009, https://www.refworld.org/ Determinants of Influence. ASIL Proceedings,
docid/4d54e8cc2.html (reached at 07.28.2019). 288-291.
Eichelberger, C. M. (1965). UN, The First Twenty Shikhelman, V. (2018). Access to Justice in the United
Years. New York: Harper and Row. Nations Human Rights Committee. Michigan
Journal of International Law, 39(3), 453-532.
Forsythe, D. P. (1985). The United Nations and
Human Rights, 1945-1985. Political Science Stewart, N. F. (2008). International Protection of
Quarterly 100(2): 249-269. Human Rights: The United Nations System.
International Journal of Human Rights, 12(1), 89-
Gaer, F. D. (2014). The Effectiveness of the United
105.
Nations Human Rights Protection Machinery:
The UN High Comissioner For Human Rights. Sunga, R.A. (2016). Litigation and Alternative
ASIL Proceedings, 281-284. Dispute Resolution of the United Nations Human
Rights Treaty Bodies. Ateneo Law Journal, 61(2),
Goodrich, L. (1960). The United Nations. London:
699-720.
Stevens and Sons.
Tomuschat, C. (2016). Protection of Human Rights
Hannum, H. (1995). Human Rights. In O. Schachter,
Under Universal International Law. UN Chronicle,
& C. C. Joyner (Eds), United Nations Legal Order
4, 23-25.
(pp. 319-348). ASIL. New York.
https://www.ohchr.org/EN/HRBodies/Petitions/
Higgins, R. (1998). Problems and Process: International
Pages/1503Procedure.aspx#_ftn16 (reached at
Law and How We Use It. Oxford: Clarendon Press.
07.28.2019)
Joseph, S., Jenkin, E. (2019). The United Nations
Human Rights Council: Is the United States
Right to Leave This Club? American University
International Law Review, 35(1), 75-131.
Limon, M., & Power, H. (2014). History of the
United Nations Special Procedures Mechanism,
Origins, Evolution and Reform. Versoix,
Switzerland: Universal Rights Group. Retrieved
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rights.org/wp-content/uploads/2015/02/URG_
HUNSP_28.01.2015_spread.pdf

Internet Sites
http://www.un.org
https://www.ohchr.org

139
 Regional Protection of Human
Rights: African and American
Chapter 6 Mechanisms
After completing this chapter, you will be able to:
Learning Outcomes

1 Identify the human rights protection system on

African Continent 2 Describe “The Court on Human and Peoples’
Rights”

3 Identify the human rights protection system on

American Continent 4 Explain the basic features of the American
Convention on Human Rights

Chapter Outline
Introduction Key Terms
The Protection of Human Rights on the African Human Rights
Continent The African Charter
The African Court on Human and Peoples’ Rights Generations of Human Rights
The Protection of Human Rights on American People’s’ Rights
Continent American Convention on Human Rights
The Inter-American Court of Human Rights

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Human Rights

INTRODUCTION some regulations on the obligations of persons. The

In this chapter, the important issue of regional main reason for this rather unusual regulation is
protection of human rights will be discussed. the African understanding of human rights which
Needless to say, regional organizations and those is the backbone of the Charter. According to this,
human rights related legal texts aiming a regional rights and obligations are two inseparable spheres
protection of human rights play a significant role of the same reality. In the light of this distinct
in the furthering of human rights cause. However, understanding one should be taken by the surprise
European entanglement with human rights shall be by this rather innovative approach, which was
tackled elsewhere and in this chapter, the main area strikingly not adopted on the American Continent
of inquiry will be Africa and America, respectively. (Buergenthal, 1995, 235).
A special system was created by the African
Charter with a view to protecting and championing
the idea of human rights. At the beginning this
system was envisioned to be functioning within
the structure of the Organization of African
Unity (OAU). However, this organization was
then disbanded and African Union would be its
replacement. The African Union from the very first
moments of its existence was hoped by many to be
a more active body that OAU ever was.

The Organization of African Unity

Figure 6.1 1960’s was an era of decolonization. Many
peoples having suffered from the rampant
THE PROTECTION OF HUMAN imperialism and colonialism were keen on the
idea of establishing their own states. OAU was
RIGHTS ON THE AFRICAN
the political outcome of this larger trend and was
CONTINENT founded in 1963 by those recently-established
The African Charter of Human and Peoples’ African States. Addis Ababa was the seat of OAU. As
Rights (The African Charter) is the foremost legal noted by Bozkurt, “OAU’s foundational objectives
instrument when one is determined to elaborate this were; among others, a peace-oriented and blocs-
issue on an African setting. The African Charter has free politics on international fora, development
been instrumental in the creation of a mechanism to of solidarity and cooperation among the African
uphold and protect human rights. In addition to this nations, safeguarding of the independence of the
important legal text there some other instruments. member-states, to eliminate each and every kind
While the main focus of this inquiry will be on The of colonizational practices and policies as well as
African Charter, I shall endeavor to handle the other their remnants, to coordinate and to harmonize
documents as well, albeit shortly. the policies of the Member-States in those areas of
The African Charter was adopted in 1981 by economy, diplomacy, education, health, welfare,
the then operative The Organization of African science and defence, in accordance with the UN
Unity. The Charter entered into effect in 1986 Charter and The Universal Declaration of Human
(Buergenthal, 1995, 228). The Charter displays Rights” (Bozkurt, 2006, 114). In 2002, the OAU
some distinctive features that are lacking in other was annulled and African Union was established.
similar human-rights-related conventions. That The Commission established by the African
the Charter stipulates not only human rights but Charter and in the same manner entrusted with
also peoples’ rights is one the most striking of these human-rights-related tasks continued to discharge
distinctive features. In addition, the Charter has its responsibilities within the AU.

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Regional Protection of Human Rights: African and American Mechanisms

Human Rights Enshrined in the of religion and conscience may be subjected to

African Charter measures of restriction.
The Charter consists of economic, social,
cultural rights as well as those civil and political
rights. One of the distinctive feature of the Charter
is that it includes some those rights that are
called “third generation human rights”, which are
specifically dubbed by the Charter as “the peoples’
rights”.
According to the first Article of the African
Charter, States parties thereto pledge to recognize
the rights, duties and freedoms set forth therein and
undertake to take all measures related to legislation
or of other nature, with a view to increasing the
effectivity of the Charter (Robertson & Merrills, p. Figure 6.2
249). The second Article comes up with a serious
non-discrimination clause. According to this On a closer scrutiny, this section has such
Article “(e)very individual shall be entitled to the regulations which are almost identical to the
enjoyment of the rights and freedoms recognized regulations of the European Convention of Human
and guaranteed in the present Charter without Rights, which are dominantly in the realm of civil
distinction of any kind such as race, ethnic group, and political rights. With this marked however,
colour, sex, language, religion, political or any there is a thorny issue in this respect, which is
other opinion, national and social origin, fortune, the problem of suspension of or derivation from
birth or other status.” rights and freedoms of a specific legal text. Here,
the African Charter does not have any designated
Article that solely aims to regulate the suspension
The Civil and Political Rights
or limitation of human rights. What is meant by
Enshrined in the African Charter this is that the Charter does not include a specific
The civil and political rights are to be found regulation to this end and consequently it is utterly
between the third and the sixteenth Articles of devoid of any general suspension or derivation
the Charter. Article 3 foresees the equality before grounds, which might have been applicable for all
the law principle. Article 4 explicitly states that the enshrined rights in the wake of predetermined
“Human beings are inviolable. Every human being emergencies or hardships like war, national
shall be entitled to respect for his life and the emergency or national security. The lack of such
integrity of his person. No one may be arbitrarily a restraining regulation seems, at the first glance,
deprived of this right”, whereas Article 5 stresses the like a positive development in favor of human
human dignity. Article 5 also prohibits all kinds of rights enjoyment of which shall not be hampered
exploitation, degrading and inhuman punishments by general derivation clauses. However, a further
and treatments. Article 6 of the Charter bans scrutiny leads to alarming outcomes. Innate to
arbitrary detention and arrest. Right to fair trial and almost each and every rights enshrined in the
that ever-significant presumption of innocence are Charter is an ambivalent language which may by
among the rights and freedoms touched upon by design or inadvertently pave the way for limiting
the 7th Article of the Charter. Freedom of religion interpretations and/or enforcement.
and conscience, right to assembly and right to
One of these Articles that may give rise to
property are among other classical rights enshrined
a rather restrictive implementation of the legal
in the mentioned section of the Charter. Article 8
undertakings in the Charter is Article 9 according
expressis verbis deals with the freedom of religion
to which, “every individual shall have the right to
and conscience. Only in such cases where the law
receive information. Every individual shall have
and order urge so, the enjoyment of the freedoms
the right to express and disseminate his opinions

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Human Rights

within the law.” This Article limits the freedom The Social and Political Rights
of expression and dissemination of opinions by a Enshrined in the African Charter
simple reference to law, which at the end of the Article 17 of the African Charter explicitly
day may mean that the legislature has the means to refers to the right to education and right to a free
curb this freedom to a great extent when it deems participation in the cultural life of her community.
necessary. In addition to this, there is another Article 18 describes the family as the “natural
deficient part in this regulation, which is the total unit and basis of society”. In harmony with this
lack of any attempt to delineate a minimum level view of the family, the Article defines a number
of human rights that this law should observe of legal obligations for the State Party. The very
to uphold and preserve as a minimum, even in first one of these is a blanket task of protecting
those times where state might deem it an absolute the family. As a natural outcome of this wide task,
necessity to restrict this freedom (Hannum, 165- the State is entrusted with the undertaking to take
167; Robertson & Merrills, s. 249-251). Since care of its physical health and moral. The family
no limitation was imposed upon the authority which is prescribed to be the alleged “custodian
the government has in deviating from its legal or morals and traditional values recognized by
obligations emanating from the chapter, the States the community” has been given the right to ask
Parties may at will violate human rights, solely by for the assistance of the State. The protection of
enacting basic codes, which may be violating these family is complemented in the same article by the
rules excessively. envisioned protection of women, children, the
Needless to say, it is nothing but something elderly and the disabled.
totally cherishable to witness the concrete legal Article 19 highlights the in an African setting
formalizations of rights and freedom in international important and sensitive matter of Peoples’ Equality.
legal material. However, naïve or benign utterances This equality is an equality on a communitarian
of lofty human rights propositions will at times fail level among different groups of peoples and
to guarantee respect for human rights, especially should not be confused with personal equality.
when that regime concerned is facing a contra- Domination of a group of people by another group
liberties regime with ulterior motives vis-à-vis is an unjustifiable act in the eyes of the drafters of
political opponents and the like. the Charter. The Peoples may also “freely dispose of
Article 11 has an interesting regulation in this their wealth and natural resources (Article 21); and
regard. According to this Article: “Every individual have the right to a general satisfactory environment
shall have the right to assemble freely with others. favourable to their development (Article 24)”
The exercise of this right shall be subject only (W.H.O., p. 1).
to necessary restrictions provided for by law in Article 22 of the African Charter states that
particular those enacted in the interest of national “All peoples shall have the right to their economic,
security, the Safety, health, ethics and rights and social and cultural development with due regard
freedom of others.” The right to assembly can only to their freedom and identity and in the equal
be restricted if and when that restriction is called enjoyment of the common heritage of mankind”.
upon by the real vicissitudes happening in that
society. However, as can be seen, the Charter this Article 23 recognizes that “(a)ll peoples shall
time comes up with a short list of grounds which have the right to national and international peace
may be the kick-starter of that probable restrictions and security”. Therefore, right to peace has been
to be imposed upon the freedom of assembly. It recognized not only on a national level but also
should however not be forgotten that the changes on an international level. The peace and security
observed in the circumstances as regards safety or are defined rather expansively in this Article, for
health among others have to make the imposition it does not solely refer to the text of the United
of a restriction on assembly rights necessary. This is Nations Charter. It surely refers to it and goes even
called “necessity” in legal terminology. beyond that. The right to peace and security has to
be in conformity with “principles of solidarity and

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Regional Protection of Human Rights: African and American Mechanisms

friendly relations implicitly affirmed by the Charter good, which is the social needs. With that said,
of the United Nations and reaffirmed by that of limits to serve, “physical and intellectual abilities”
the Organization of African Unity shall govern should be drawn, so that the justice and equity in
relations between States”. In conclusion, even the the distribution of these burdens will be just and
implied principles have to be observed in interstate equitable.
relations, which is a creative and progressive usage However, the rather protective and
of legal sources. communitarian tone of this Article 29 should
not be dismissed quite easily. One should keep in
The Duties Enshrined in the African mind that this treaty is an African product. Africa
suffered from colonialism and it is only natural
Charter
that the bitter experiences of the past are mirrored
One of the distinctive features of the African in this law-making example.
Charter is that it has defined some concrete duties
for the nationals of the States Parties to itself.
Article 27 defines the duty of an individual towards The Implementation of the African
one’s “family and society, the State and other legally Charter and the Review of the
recognized communities and the international Implementation
community”. The second paragraph of the said It is not the sole objective of the human rights
Article highlights a logical but often neglected treaties to establish lofty legal rules that deal with
aspect of the enjoyment of rights by persons and/ thorny issues that may arise especially within the
or groups of persons, which is the due regard wider context of governments that have no respect
that must be observed on a continuous basis for for real persons and their inherent and unalienable
the rights of the other member of the society that rights. What really counts is the improvement of
one is in. According to the paragraph “the rights living standards of persons in real life situations.
of others”, “collective security”, “morality” and Human rights regimes have one explicit objective
“common interest” are, if one may put it this may, and that is the betterment of treatments individuals
natural boundaries to the rights enshrined in the and groups of individuals face when dealing with
Charter. the actions, omissions and transactions of those
Article 29 has an even wider list of duties meted authorities holding power. This is the root cause
out. From a pro-human rights stance, this list is that great significance is attached to the proper
a worrying one, not that it includes elements that implementation and actual observation of human
are inherently detrimental for the human rights rights rules. The African Charter is not an exception
cause. What is worrying is that the general and in this regard and created a system that enables the
rather sloppy language used in the definition of surveying of its own implementation. Charter labels
some so-called duties may be a tool in the hands as “the measures of safeguard” those precautions
of someone with a mind-set to abuse them. In created within its review system. Article 30 foresees
order to give an example, we should maybe take the establishment of a Commission by stating that
a look at the second duty defined in this Article. “an African Commission on Human and Peoples’
According to this; the individual must observe the Rights, hereinafter called “the Commission”,
duty “to serve his national community by placing shall be established … to promote human and
his physical and intellectual abilities at its service”. peoples’ rights and ensure their protection in
As can be seen, there is prima facie nothing wrong Africa”. Another review system was later added to
with this definition. However, in order to avoid a the Commission by virtue of the Protocol to the
malicious misuse and abuse of this stipulation, the African Charter on Human and Peoples’ Rights on
Court and the Commission are well advised to set the Establishment of an African Court on Human
the limits for this duty. As a matter of fact, citizens and Peoples’ Rights. The mandate of this said Court
would benefit from such a societal situation, is to complement and reinforce the functions of the
where they are invited to serve and they do accept African Commission on Human and Peoples’
this welcome burden for the benefit of a greater Rights, which is referred to as Banjul Commission.

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The Commission
The first actor created for the better execution of the rules available in the African Charter is the so-
called Banjul Commission. The Commission consists of 11 members. These members are elected by the
African Union Assembly. The Assembly considers equitable geographical and gender representation in
electing the members of the Commission. Members of the Commission are elected for a six-year term and
are eligible for reelection (The Commission Website). Given the delicate nature of their task, the members
of the Commission are expected to preserve their independence from their own States. They are expected
to discharge their obligations in their personal capacity and not as representatives of their respective
countries (Robertson & Merrills, p. 260). As the Commission reminds, “(p)reviously, some members of the
Commission held high political offices at the national level, which affects the Commission’s independence.
The AU in April 2005 issued a note verbale to member states prescribing guidelines for nomination of
members to the Commission which excluded senior civil servants and diplomatic representatives”.
The mandate of the Commission stems from the 45th Article of the Charter. The Article offers a
list of the obligations and responsibilities of the Commission. According to this, the functions of the
Commission shall be:
“1. To promote Human and Peoples’ Rights and in particular:
(a) To collect documents, undertake studies and researches on African problems in the field
of human and peoples’ rights, organize seminars, symposia and conferences, disseminate
information, encourage national and local institutions concerned with human and peoples’
rights, and should the case arise, give its views or make recommendations to Governments.
(b) To formulate and lay down, principles and rules aimed at solving legal problems relating to
human and peoples’ rights and fundamental freedoms upon which African Governments may
base their legislations.
(c) Co-operate with other African and international institutions concerned with the promotion
and protection of human and peoples’ rights.
2. Ensure the protection of human and peoples’ rights under conditions laid down by the present
Charter.
3. Interpret all the provisions of the present Charter at the request of a State party, an institution of
the OAU or an African Organization recognized by the OAU.
4. Perform any other tasks which may be entrusted to it by the Assembly of Heads of State and
Government.”
important

The OAU is now a defunct international organization. It was succeeded by the African Union. The original
legal text of Article 45 still refers to OAU but all these remarks should be interpreted as relevant to AU.

As mentioned in the Article given above, the tasks of the Commission may be roughly classified in
two. Firstly, the Commission has a task of promoting the idea and the cause of human rights, which has
an information-sharing and way-paving nature. Secondly, the Commission is entrusted with the task of
reviewing whether the rules have been observed properly and whether human rights have been respected in
due manner. This second aspect of legal scrutiny which displays a protective quality and nature in relation
to human rights is strikingly reminiscent of the functions of the European Court of Human Rights,
notwithstanding some considerable differences in practice (Robertson & Merrills, 260).
Informative and promotional tasks of the Commission as delineated by Article 45 includes, among others,
to collect documents, undertake studies and researches on African problems in the field of human and
peoples’ rights. The Commission is further asked to organize seminars, symposia and conferences. These

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and similar activities will help the Commission to in turn will erase ambiguity surrounding that
tackle its obligation to disseminate information as specific rule, paving the way for a more coherent
to human rights. implementation on the continent.
The Commission may have an important However, the most important function of the
legislative influence in terms of human rights on a commission is the actual protection of human
national level. This is a very important yet generally rights via miscellaneous ways. The protection of
neglected function of the Commission. If it human and peoples’ rights is effected through
succeeds in this task, then a uniform or at the very Commission’s “communication procedure, friendly
least similar understanding of human rights will be settlement of disputes, state reporting (including
spread on the African Continent, which logically consideration of NGOs’ shadow reports), urgent
will lead to a better human rights environment appeals and other activities of special rapporteurs
in accordance with the letter and the spirit of the and working groups and missions” (Official
African Charter. The Commission can formulate Website). Here, the Commission has the obligation
and lay down, such principles and rules capable of to take part in quasi-adjudicative processes. The
solving emergent legal problems relating to human Commission handles those cases, in which there
and peoples’ rights and fundamental freedoms is a claim about an action or omission, which
upon which African Governments may base their may or may not form a violation of the African
legislations. This whole process will help the creation Charter. The first kind of activities are that of
of national institutions and processes well equipped States’ Communications, that are to be submitted
and informed regarding human rights rules and in accordance with Articles 47-49 of the Charter.
their corresponding implementation. This function In addition to States’ communications, individual
of the Commission, it is fair to claim is a function communications will also be considered. However,
progressive and preventive in nature. It is clearly the term individual should not be understood in
progressive, for this function has a clear potential to a restricted sense. Since the vernacular is in such
improve the human rights situation on a continental a fashion so as not to define and designate real
scale, for it directly nourishes the national acceptance persons only, it would be fairer interpretation to
of and adherence to human rights as are enshrined see this right and authority to be extended to group
in the African Charter. It is undoubtedly preventive, of persons and even legal persons.
for national authorities will be reminded of their
human-rights related undertakings as well their
States’ Communications
societal significance, which, in turn will reduce
the number of human rights violations almost Article 47 of the Charter sets forth that “if
always committed by the indifference, ignorance a State party to the present Charter has good
and at times sheer intent of the said authorities. reasons to believe that another State party to
What is a logical outcome of this legislative task is this Charter has violated the provisions of the
the cooperation duty of the Commission with the Charter, it may draw, by written communication,
Parties to the Charter with a view to promoting and the attention of that State to the matter. This
protecting the human rights. communication shall also be addressed to
the Secretary General of the OAU and to the
The Commission has the authority to present
Chairman of the Commission.
an interpretation of the rules in the African Charter
in case States Parties to the Charter or African Within three months of the receipt of
Union submit a request to this end. From e legal the communication, the State to which the
standpoint, the interpretations of the Commission communication is addressed shall give the enquiring
may create better conditions for a uniform State, written explanation or statement elucidating
application of legal rules therein. The Commission the matter. This should include as much as possible
by way of interpretations will make clear what relevant information relating to the laws and rules
is really to be understood in a given rule, which of procedure applied and applicable, and the
redress already given or course of action available”.

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important In this report, the Commission makes known its

recommendations about all kinds of precautions it
deems necessary for the settlement of the dispute
Acc. To Art. 47 Within three months of the
or the rectification of the breach.
receipt of the communication, the State to
which the communication is addressed shall This whole process devoid of some of basic
give the enquiring State, written explanation properties of an adjudication mechanism. By
or statement elucidating the matter. submitting its findings as to the object of the
communication, the task of the Commission is
completed. This process has undeniably its own
merits but it is too optimistic an expectation to
“If within three months from the date on
expect from the Commission the level of efficiency
which the original communication is received
that one observe in the judicial review by the
by the State to which it is addressed, the issue is
European Court of Human Rights.
not settled to the satisfaction of the two States
involved through bilateral negotiation or by any
important
other peaceful procedure, either State shall have
the right to submit the matter to the Commission
through the Chairman and shall notify the other The Commission can only deal with a matter
States involved” (Art. 48). In the absence of an submitted to it after making sure that all local
inquiry of one of the parties, the Commission will remedies, if they exist, have been exhausted,
not have an automatically recognized jurisdiction unless it is obvious to the Commission that
to probe into the dispute between them, unless, of the procedure of achieving these remedies
course, one of the parties has directly applied to the would be unduly prolonged. (Art 50, African
Commission following Article 49. The Article 49 Charter)
of the African Charter kicks in when “a State party
to the present Charter considers that another State
party has violated the provisions of the Charter”. Individual Communications
In this case, this State party may opt “to refer the There are other actors allowed to submit a
matter directly to the Commission by addressing a communication to the Commission by the 55th
communication to the Chairman, to the Secretary Article of the African Charter. The Charter does not
General of the Organization of African Unity and offer any concrete and exhaustive listings of these
the State concerned”. subjects who have this authority. Since our focus
Once the matter is submitted to the Chairman here is the promotion and protection of human
and it is clearly vivid that the local remedies have rights, it would not be a self-defeating interpretative
been exhausted or it is just impossible to exhaust conclusion to see this stipulation under the light of an
the local remedies without unduly prolonging expansive mindset, which eventually means a higher
the whole process, then the commission will number of actors with the opportunity and capability
embark on its own inquiry into the matter at to submit communications, regardless of whether
hand and start collecting data as to the facts of they are real or legal persons. (Robertson & Merrrills,
the situation. During this information collecting 262). A communication shall be considered by the
period, the Commission may seek the help of the Commission if a simple majority of its members
State Party concerned. States concerned may be so decide. To reach this conclusion of admissibility
represented before it and submit written or oral regarding the communications submitted within the
representation. The Commission has the right to framework of Article 55, the following criteria listed
make use of evidences that it has reached by virtue in the 56th Article must be met.
of its own operation (Buergenthal, 1995, 244). According to Article 56:
Failing of an amicable settlement to the dispute, Communications relating to human and
the Commission is going to prepare a report on peoples’ rights referred to in 55 received by the
the facts of and its own findings as to the case. Commission, shall be considered if they:

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1. Indicate their authors even if the latter Otherwise, there may perfectly be some instances
request anonymity, where the Communication might be a totally
2. Are compatible with the Charter of the justified request on behalf of the person concerned
Organization of African Unity or with the and the Commission will be unjustifiably kept
present Charter, devoid of an invaluable opportunity to consider
a case of human rights violations. In this respect,
3. Are not written in disparaging or insulting
there must be an ad hoc differentiation between
language directed against the State
communications based on weak evidences and
concerned and its institutions or to the
those where there is an impossibility of collecting
Organization of African Unity,
evidence owing to the nature of the case at hand.
4. Are not based exclusively on news
discriminated through the mass media,
5. Are sent after exhausting local remedies, if
any, unless it is obvious that this procedure
is unduly prolonged, 1
6. Are submitted within a reasonable period Which human rights are regulated by the
from the time local remedies are exhausted African Charter?
or from the date the Commission is seized
of the matter, and
7. Do not deal with cases which have been
settled by these States involved in accordance THE AFRICAN COURT ON HUMAN
with the principles of the Charter of the AND PEOPLES’ RIGHTS
United Nations, or the Charter of the The then-functioning Organization of African
Organization of African Unity or the Unity (OAU) decided to establish a working group
provisions of the present Charter. in 1994, the aim of which was to study the idea
As can be seen, there are some criteria of of the establishment of a Human Rights Court to
admissibility for individual communications. prevent violations of human rights and to augment
If these conditions are not met, then the the protective mechanisms. This group remained
communication shall be denied any further active until 1998. Again in 1998 the OAU adopted
consideration and scrutiny. Anonymous the Protocol to the African Charter on Human
communications and communications written and Peoples’ Rights on the Establishment of an
with disparaging or insulting language shall be African Court on Human and Peoples’ Rights.
denied. Exhaustion of local remedies as a general The Protocol came into force on 25 January 2004.
rule has to observed before the submission of Following its entry into force, the first judges of the
the communications before the Commission. Court was elected in 2006 by the African Union.
Those communications based utterly on hearsay In the following year the Court assumed its work
or media reports cannot and will not be held with its seat in Arusha, Tanzania, which is not the
under further review. In this sense, evidences first seat of the Court however. The Court was
presented in a communication should be more originally established in Addis Ababa, Ethiopia in
encompassing and substantial than contents November 2006, but then moved to Arusha.
provided by media report. Therefore, one cannot “Between 2006 and 2008, the Court dealt
submit her communication exclusively basing this principally with operational and administrative
on her daily journal’s morning edition. However, issues, including the development of the structure
this requisite for a substantially high evidencing of the Court’s Registry, preparation of its budget
criterion must not automatically function as an and drafting of its Interim Rules of Procedure.
absolute obstacle before the review of a human In 2008, during the Court’s Ninth Ordinary
rights related case, especially when the production Session, the Court adopted the Interim Rules of
and submission before the Commission of those Court, pending consultation with the African
other evidence materials than the available media Commission on Human and Peoples’ Rights, in
reports are impossible or extremely burdensome.

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order to harmonize their rules. This harmonization may, however, conduct proceedings in camera as
process was completed in April 2010, and in June may be provided for in the Rules of Procedure. Any
2010, the Court adopted its Final Rules of Court” party to a case shall be entitled to be represented
(The Court’s Official Website). by a legal representative of the party’s choice. Free
legal representation may be provided where the
interests of justice so require.”
The Composition and The
Further, “Any person, witness or representative
Functioning of the Court
of the parties, who appears before the Court, shall
The Court is composed of 11 Judges, who are enjoy protection and all facilities, in accordance
expected by the Protocol to have high moral values, with international law, necessary for the
high professional recognition and experience. It discharging of their functions, tasks and duties
is another expectation of the Protocol that the in relation to the Court.” Only in those cases
nominations should be made from among such a carrying the characteristics specified in the Rules
group of individuals, who are either academically of the Court the proceedings can be conducted in
successful or who have great practice-oriented camera, i.e. all spectators will be excluded from
careers. The Protocol orders the judges of the Court the proceedings.
be elected for a period of six years. These may be re-
In relation to proceedings, Article 43 of the
elected only once. According to the Protocol, “The
Rules of Court mentions that “Cases shall be heard
terms of four judges elected at the first election shall
in open court. However, the Court may, of its own
expire at the end of two years, and the terms of four
accord or at the request of a party, hold its hearings
more judges shall expire at the end of four years.
in camera if, in its opinion, it is in the interest of
The judges whose terms are to expire at the end of
public morality, safety or public order to do so.
the initial periods of two and four years shall be
Whenever the Court orders that any proceedings
chosen by lot to be drawn by the Secretary-General
shall not be conducted in public, the Court shall
of the OAU immediately after the first election
give one or more of the reasons specified… as
has been completed. A judge elected to replace a
the basis of its decision. The parties or their legal
judge whose term of office has not expired shall
representatives shall be permitted to be present
hold office for the remainder of the predecessor’s
and heard in camera”. In the light of this rule, the
term. All judges except the President shall perform
Court has to refer at least to one of the following:
their functions on a part-time basis”. However,
public morality, safety, public order. Safety should
this arrangement may be changed by the Assembly
be understood in a broad sense to include personal
in case it seems such a change called for. In the
and public safety. At the end of the proceedings,
candidacy and election phases of the judges, due
the Court may render decisions that may point
consideration must be given to gender equality,
to violations of human rights. In this case, the
as explicitly and commendably required by the
Court is entitled to decide for any remedy for the
Protocol (Braun/Mulvagh, 41).
violation that occurred including but not limited to
It is the objective of the Court to complement the payment of fair compensation and expenses.”
the protective mandate of the African Commission In cases of extreme gravity and urgency, and when
on Human and Peoples’ Rights and fulfill its necessary to avoid irreparable harm to persons, the
own function with a view to safeguarding human Court shall adopt such provisional measures as it
rights. The Court enjoys jurisdiction in all the cases deems necessary” (Art. 27 of the Protocol).
submitted to it concerning the interpretation and
application of the African Charter, the Protocol
and any other relevant Human Rights instrument important
ratified by the States concerned. According to
this 3rd Article of the Protocol, “In the event of a The Court shall adopt such provisional measures
dispute as to whether the Court has jurisdiction, as it deems necessary a) In cases of extreme
the Court shall decide”. gravity and urgency, and b) when necessary to
Article 10 of the Protocol states that “The Court avoid irreparable harm to persons.
shall conduct its proceedings in public. The Court

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The Court’s main objective is to stop the prior to local remedies’ exhaustion may be found
occurring the violations of human rights, if any admissible, if it is clearly futile to make use of these
and to remedy the ones that have already been local remedies (Braun & Mulvagh, 42-43).
committed. In the case of a violation case, where Barring a decision of inadmissibility of the
there is extreme gravity and urgency and if there application, the Court then will kickstart the phase
is a risk of irreparable harm to persons involved; of considering the case at hand materially, i.e. with
the Court may adopt provisional measures. a view to drafting a binding legal decision. Here,
Provisional measures are not final decisions but both parties have the right to submit evidences
rather measures adopted to make possible the orally or in writing. Protocol stipulates in its 26th
flawless running of affairs during the proceedings Article that “The Court shall hear submissions by
and related Court activities, which, among others, all parties and if deemed necessary, hold an enquiry.
however also serve to protect human rights, for a The States concerned shall assist by providing
provisional measure will hamper the otherwise relevant facilities for the efficient handling of
unattended activities of the concerned member- the case. The Court may receive written and oral
state and its organs and cause in all probability to evidence including expert testimony and shall
suspend their relevant actions or omissions in the make its decision on the basis of such evidence.”
wake of the case’s referral to the Court. During
According to the 45th Article of the Rules of
this whole adjudicative task, “The Court shall
the Court; “(t)he Court may, of its own accord,
apply the provisions of the Charter and any other
or at the request of a party, or the representatives
relevant human rights instruments ratified by the
of the Commission, where applicable, obtain
States concerned” (Art. 7, the Protocol).
any evidence which in its opinion may provide
“The Court may receive cases filed by the clarification of the facts of a case. The Court may,
African Commission of Human and Peoples’ inter alia, decide to hear as a witness or expert or
Rights, State parties to the Protocol or African in any other capacity any person whose evidence,
Intergovernmental Organizations. Non- assertions or statements it deems likely to assist it
Governmental Organizations with observer status in carrying out its task.”
before the African Commission and individuals can
The 45th Article goes to state that “The Court
also institute cases directly before the Court as long
may ask any person or institution of its choice to
as the state against which they are complaining has
obtain information, express an opinion or submit a
deposited the Article 34(6) declaration recognizing
report to it on any specific point”. “The Court may,
the jurisdiction of the Court to accept cases from
at any time during the proceedings, assign one or
individuals and NGOs” (The Court’s Official
more of its Members to conduct an enquiry, carry
Website). Benin, Burkina Faso, Côte d’Ivoire,
out a visit to the scene or take evidence in any other
Gambia, Ghana, Mali, Malawi, Tanzania and
manner.” However, it is not allowed to submit new
Republic of Tunisia are the States parties that are
evidences infinitely. There is a time limit to this.
known to have declared their recognition of the
Article 50 of the Rules of the Court determines that
jurisdiction of the Court in relation with those
no party may file additional evidence following the
future submissions by a) NGO’s with observer
closure of pleadings, except by leave of Court.
status and b) individuals.
The very first thing to do just after the referral
of an application to the Court is to conduct an The Decisions of the Court
admissibility check. The cases that have been found Following the ending of the completion of
lacking in terms of admissibility requirements shall the deliberations phase, the Court has a 90-day
be dismissed and shall no more be a matter of duration to render its decision. The fact that a
further legal scrutiny. The other cases that are now duration was set to determine a deadline for every
deemed admissible will be solved materially. It is case presented, the parties to the Charter and
important to reiterate that the exhaustion of local the Protocol wanted obviously to avoid the bad
remedies is prerequisite for a successful referral of experiences of the Commission-only period of the
a case to the Court. As an exception though, there African Charter. Clearly, the States Parties wanted
may be cases in which applications without or to speed up the process, bearing in mind some of

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the communications before the Commission took unless the Court, in the interest of justice, decides
8 years or even longer to end. otherwise”. “The application shall be filed in the
In preparing this decision, judges who were Registry. It shall state clearly the point or points in
members of the specific panel that was responsible the operative provisions of the judgment on which
for the case will have to take part in deliberations. interpretation is required.”
Other judges will not take part in these
deliberations. The deliberations of the Court shall
be held in camera and shall remain confidential. The
decisions of the Court shall be made by a majority 2
of the Members of the Panel present. In the case of What do you know about the historical
a tied vote, the Presiding Judge shall have a casting stages of the establishment of the African
vote, which means his/her vote will be the decisive Court of Human Rights?
vote to break the tie (Braun & Mulvagh, p. 43).
Members of the Court who heard the case may
deliver a separate or dissenting opinion.
Decisions rendered by the Court (=Judgments) THE PROTECTION OF HUMAN
are final and binding upon the parties to a dispute. RIGHTS ON AMERICAN
If the Court has determined a human rights CONTINENT
violation, then via judgment some measures shall
When the topic is human rights protection in an
be taken to compensate the violation, including
American setting, there come to mind two distinct
pecuniary reparation payments (Braun & Mulvagh,
procedures of protection. The first one is the
p. 43). There is no other and further remedy to
protective mechanism foreseen by the Organization
apply to against these Judgments. Essential parts
of American States Charter. The second one is the
of judgments have been determined by the 61st
procedure related with the American Convention
Article of the Rules of the Court:
on Human Rights. The existence of two “similar”
1. (E)very judgment of the Court shall state procedures to the same objective may get thing
the reasons on which it is based. complicated, especially as regards the decision
2. The judgment shall indicate the names which one these to employ in a given concrete
of Judges who have taken part in the case. However, this situation in a sense is also an
deliberations. enrichment, a pro-human rights position that may
3. The judgment shall be signed by all the present a holistic accomplishment of the lofty ideal
Judges and certified by the Presiding Judge of protection.
and the Registrar. It shall be read in open
Court, due notice having been given to the Organization of American States and
parties.
Human Rights
4. Subject to article 28(3) of the Protocol, the
The Organization of American States (OAS)
judgment of the Court shall be final.
was established by the Charter of OAS signed
5. The judgment of the Court shall be binding in Bogota, Colombia in 30 April 1948. OAS
on the parties. determined as its main objective, to provide
At times, after the final judgment is rendered cooperation and coordination in different areas
parties may experience a confusion as to the real and to become a platform that gets its members
meaning of the judgment or its specific sub-parts. to apply peaceful methods for the settlement
Here an interpretation of the final decision is called of disputes among them (Bozkurt, 2006, 131).
for. Rules of the Court has a regulation for this Article 3 of the Charter of OAS bearing the title of
scenario which tells “any party may, for the purpose “The Principles” affirms the principles of equality
of executing a judgment, apply to the Court for and non-discrimination (among others) on an
interpretation of the judgment within twelve international level. International law is designated
months from the date the judgment was delivered by the Charter as the standard-bearer of intra-

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state relations, and social justice, social security, concerned, the lack of concrete juxtaposition of a
economic cooperation are important factors for human rights list can be understandable, since the
peace and prosperity. The 3rd Article attaches international legal undertaking of the States Parties
significance to armed conflict and its prevention. may vary and thus the binding legal texts and their
According to this; “the American States condemn obligations should be determined on a case-by-case
war of aggression: victory does not give rights. An basis. In addition to this, there is another text that
act of aggression against one American State is an should and will help us in finding out what their
act of aggression against all the other American rights really may amount to. It is the “American
States. Controversies of an international character Declaration of the Rights and Duties of Man”,
arising between two or more American States signed on May 2, 1948, i.e. only two days after
Parties shall be settled by peaceful procedures”. the signing of the Charter. The States Parties to
The Charter of OAS stresses the principle of the OAS Charter may well have found it wiser to
equality. According to this, “The jurisdiction of delegate the important task of identifying the rights
States within the limits of their national territory is to the drafting committee of this declaration.
exercised equally over all the inhabitants, whether The 21st Article of the OAS Charter bans in
nationals or aliens”. What is eye-catching in this explicit terms “military occupation or of other
stipulation is the fact that equality has not only measures of force taken by another State, directly or
been established as a principle among the citizens indirectly, on any grounds whatever” and adds that
of the concerned State Party, but also to those non- “no territorial acquisitions or special advantages
citizens residing or happening to be “within the obtained either by force or by other means of
limits of their national territory”, which should coercion shall be recognized”. The following
also incorporate among others the territorial waters Article sets forth that recourse to the use of force is
of the said country. generally speaking prohibited, except in the case of
Articles 20, 21 and 22 of the Charter of OAS self-defense in accordance with existing treaties or
refer in general terms to peace. The 20th Article in fulfillment thereof.
states that “no State may use or encourage the use The American Declaration of the Rights and
of coercive measures of an economic or political Duties of Man define the protection of human
character in order to force the sovereign will of rights on an international level as “the guiding
another State and obtain from its advantages of principle” of American legal systems (de Schutter,
any kind”. As can be seen, what is here forbidden p. 26). The Declaration consists of different
is the intervention by States Parties in the affairs generations of human rights. It includes such
of the other ones. This regulation is in accordance rights of civil, political, economic, cultural, social
with and augments the preceding Article 17 of as well as cultural rights. Among these rights are
the Article. This one conveys the States Parties the right to life, liberty and personal security; right
the right to “develop its cultural, political, and to equality before law, Right to religious freedom
economic life freely and naturally”. However, this and worship; Right to freedom of investigation,
“act of freely developing” the cultural, political and opinion, expression and dissemination; Right to
economic life should observe the human rights of protection of honor, personal reputation, and
the individuals, which stem from the international private and family life; Right to a family and to
treaties and customs. This is the direct consequence protection thereof; Right to protection for mothers
of this pro-human-rights wording of the Article 17 and children; Right to residence and movement;
that highlights the significance of human rights Right to inviolability of the home; Right to the
by reminding “the rights of the individual and inviolability and transmission of correspondence;
the principles of universal morality”. These rights Right to the preservation of health and to wellbeing.
should function as natural checks and landmarks Interestingly, the Declaration was seen as a
in the development of the political, economic and non-binding text. However, this conception has
cultural realms. However, what these human rights changed drastically in time and human rights
in concrete amount to has not been delineated in the Declaration have been defined concretely
by the Charter. This might at the first sight seem owing much to the letter of the Declaration, which
like a deficit of the Charter. As far as this author is

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in turn has been influential in the wide spreading The American Convention on Human
of a uniform understanding of the scope and the Rights
contents of the rights therein. According to the In November 1969, this Convention was
actual understanding, the declaration is an authentic adopted in San José, Costa Rica, where, the Inter-
interpretation and explication of the individual American Specialized Conference on Human
rights mentioned in the Charter of OAS. This is a Rights was held, in which the representatives of the
sound reasoning for the diplomats and politicians member States of the OAS adopted it. It took a
who drafted the Charter are the very same rather long time for this Convention to enter into
individuals who devised the Declaration only two force. This was only managed in 1978, when a
days following the signing of the former. As a result, member State deposited the eleventh document
the rights enshrined in the Declaration are nothing of ratification. The Convention is defined as the
but the individual rights of the Charter of OAS. most important human rights treaty among the
Thus, the Declaration is instrumental in giving the American States. It had an undeniable influence
Charter, which is originally rather of an inter-state received from The European Convention on
character, a flavor favoring the human rights and Human Rights (de Schutter, 27). By means of the
their upholding, by the undeniable concretization Convention, the Inter-American Court of Human
of the individual rights mentioned there. Rights was also established.
The Convention aims to secure the respect
The Inter-American Human Rights for a high a number of civil and political rights.
Commission By imposing a wide ranging obligation of anti-
In the year 1959, steps were taken to establish discrimination, it has strived to allow each and
an Inter-American Human Rights Commission every individual to enjoy these rights. Further,
(IACHR). This was followed by the conclusion of the Convention defines it an obligation, to take
the legal arrangements providing a mechanism for progressive steps with a view to paving the way
the operation of this IACHR in 1960 and thus the for the enjoyment of those rights enshrined in
IACHR was established. The main objective of the the Charter of OAS (as stipulated and further
Commission was to promote and protect human defined by the Declaration mentioned above). It
rights in the American hemisphere. As noted in its is required by the Convention the States Parties
website, “By 1961, the IACHR had begun to carry not only provide the respect for those human
out on-site visits to observe the general human rights but also to safeguard free and unfettered
rights situation in a country or to investigate specific use of them (Buergenthal, 1995, 195-196). As
situations. Since that time, the IACHR has carried notable, a high threshold of involvement on
out 69 visits to 23 member States. In relation to its behalf of the Parties is expected here. A passive
visits for the observation of the general human rights mode of action just to recognize human rights
situation of a country, the IACHR has published and not arbitrarily to interfere with them is just a
44 special country reports to date”. “In 1965, the minimum of the requirements of the Convention.
IACHR was expressly authorized to examine some In addition, Parties are urged, via positive actions
if not all of those complaints or petitions regarding and transactions, to safeguard and make possible
specific cases of human rights violations (Bozkurt, the unfettered and free enjoyment of these rights.
2006, 133; Buergenthal, 1995, 183). The IACHR The suspension of the rights enshrined in the
has received thousands of petitions, which have Convention is also accepted by the drafters of the
resulted in a very high number of cases”. Up Convention, but as an exception. As it is the case
until 1970, the IACHR enjoyed an autonomous with all the exceptions in human rights law, these
status. By the amendment brought about in 1970, have to be interpreted in a narrow manner, that is
the IACHR was made one of the official organs to say suspension should go as far as it is required
of the OAS. This was not the only step taken in but not any further. It is a generally accepted way
Buenos Aires in 1970. In addition to this, there of legal interpretation to avoid arbitrary and/or
was another decision for the preparation of an excessive restraining of human rights. According
American Human Rights Convention. to Article 27 of the Convention:

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1. “In time of war, public danger, or other times of war and similar emergency situations.
emergency that threatens the independence or Here, the drafters set up a minimum human rights
security of a State Party, it may take measures yardstick which the Parties will be disallowed on
derogating from its obligations under the absolute terms to dispense with.
present Convention to the extent and for The Convention has two different organs. The
the period of time strictly required by the very first one of these is the Commission. Thus,
exigencies of the situation, provided that such the Commission is entrusted with tasks related
measures are not inconsistent with its other to two different organizations, the OAS and the
obligations under international law and do not Convention. The Commission discharges its
involve discrimination on the ground of race, obligations in Washington D.C., where the OAS
color, sex, language, religion, or social origin. is also seated. With that said, should a need arise,
2. The foregoing provision does not authorize the Commission may opt to hold its proceedings
any suspension of the following articles: in another State Party (Bozkurt, 2006, 136). The
Article 3 (Right to Juridical Personality), Commission is made up of seven members elected
Article 4 (Right to Life), Article 5 (Right by the OAS. The Commission has the right and the
to Humane Treatment), Article 6 (Freedom authority to accept applications from States Parties,
from Slavery), Article 9 (Freedom from Ex real persons or groups of real persons and NGO’s.
Post Facto Laws), Article 12 (Freedom According to the Articles 44 and 45, any person
of Conscience and Religion), Article 17 or group of persons, or any nongovernmental entity
(Rights of the Family), Article 18 (Right legally recognized in one or more member states
to a Name), Article 19 (Rights of the of the Organization, may lodge petitions with the
Child), Article 20 (Right to Nationality), Commission containing denunciations or complaints
and Article 23 (Right to Participate in of violation of this Convention by a State Party.
Government), or of the judicial guarantees
Article 45 has the following regulation.
essential for the protection of such rights.
3. Any State Party availing itself of the right “1. Any State Party may, when it deposits its
of suspension shall immediately inform the instrument of ratification of or adherence to this
other States Parties, through the Secretary Convention, or at any later time, declare that it
General of the Organization of American recognizes the competence of the Commission
States, of the provisions the application of to receive and examine communications in
which it has suspended, the reasons that gave which a State Party alleges that another State
rise to the suspension, and the date set for Party has committed a violation of a human
the termination of such suspension.” right set forth in this Convention.
As stipulated above in the 27th Article of the 2. Communications presented by virtue of
Convention, there is a list of human rights which this article may be admitted and examined
cannot be suspended or deviated from even in the only if they are presented by a State Party
wake of “war, public danger, or other emergency that has made a declaration recognizing
that threatens the independence or security of a the aforementioned competence of the
State Party”. These form an untouchable nucleus Commission. The Commission shall not
of a human rights catalogue, which embodies the admit any communication against a State
most basic of liberty area that will be exempt from Party that has not made such a declaration.
all kinds of detrimental governmental activity 3. A declaration concerning recognition of
(Buergenthal, 1995, 197). In addition, all the competence may be made to be valid for an
measures adopted by the governments shall be indefinite time, for a specified period, or for
in conformity with the absolute requirement a specific case.
that “such measures are not inconsistent with its 4. Declarations shall be deposited with the
other obligations under international law and do General Secretariat of the Organization
not involve discrimination on the ground of race, of American States, which shall transmit
color, sex, language, religion, or social origin”. copies thereof to the member states of that
Therefore, discrimination is prohibited even in Organization.”

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If a State becomes a Party to the Convention, this In terms of the Article, “(e)very person has the
automatically paves the way for personal applications right to have his life respected” (Art. 4).
whereas intra-state applications can be made possible In this vein this Article further stipulates that
via the recognition by the States concerned of the this right (to life) shall be protected by law and, in
jurisdiction of the Commission in this respect general, from the moment of conception. No one
(Bozkurt, 2006, 136; Buergenthal, 1995, 199). There shall be arbitrarily deprived of his life. In those
are some prerequisites of admissibility sought after by countries that have not abolished the death penalty, it
the Commission. The first one is the exhaustion of may be imposed only for the most serious crimes and
all local remedies. Article 46 seeks that “the remedies pursuant to a final judgment rendered by a competent
under domestic law have been pursued and exhausted court and in accordance with a law establishing such
in accordance with generally recognized principles punishment, enacted prior to the commission of the
of international law”. In addition; “the petition or crime. The application of such punishment shall not
communication is lodged within a period of six months be extended to crimes to which it does not presently
from the date on which the party alleging violation of apply. The death penalty shall not be reestablished in
his rights was notified of the final judgment”.
states that have abolished it. In no case shall capital
It is also a condition of admissibility that the punishment be inflicted for political offenses or
subject of the petition or communication is not related common crimes. Capital punishment shall
pending in another international proceeding for not be imposed upon persons who, at the time the
settlement. The petition must contain the name, crime was committed, were under 18 years of age
nationality, profession, domicile, and signature of or over 70 years of age; nor shall it be applied to
the person or persons or of the legal representative pregnant women. Every person condemned to death
of the entity lodging the petition. shall have the right to apply for amnesty, pardon, or
However, the admissibility criteria as regards commutation of sentence, which may be granted in
the exhaustion of local remedies and as regards the all cases. Capital punishment shall not be imposed
time limit of six months shall not be applicable, if while such a petition is pending decision by the
the domestic legislation of the state concerned does competent authority.
not afford due process of law for the protection of Torture is also prohibited by the Convention. Every
the right or rights that have allegedly been violated. person has the right to have his physical, mental, and
It is also the same situation, if the party alleging
moral integrity respected. No one shall be subjected to
violation of his rights has been denied access to the
torture or to cruel, inhuman, or degrading punishment
remedies under domestic law or has been prevented
or treatment. All those individuals deprived of their
from exhausting them.
liberty shall be treated with respect for the inherent
The Inter-American Court of Human Rights shall dignity of the human person (Art. 5) and no one shall
be dealt with in depth further below following a short be subject to slavery or to involuntary servitude, which
listing of the rights enshrined in the Convention. are prohibited in all their forms, as are the slave trade
and traffic in women (Art. 6).
Human Rights Enshrined in the There is a long list of rights stipulated in the
Convention convention. Some of these rights are given below:
The Convention embarks on with an obligation Right to personal liberty and security (Art. 7),
to respect human rights and not to curb them Right to a Fair Trial (Art. 8), Freedom from Ex
on grounds reminiscent of or amounting to Post Facto Laws (Art. 9), Right to Compensation
discrimination. According to Article 1, “The States (Art. 10), Right to Privacy (Art. 11), Freedom of
Parties to this Convention undertake to respect Conscience and Religion (Art. 12), Freedom of
the rights and freedoms recognized herein and to Thought and Expression (Art. 13), Right of Assembly
ensure to all persons, subject to their jurisdiction (Art. 15), Freedom of Association (Art. 16), Rights
the free and full exercise of those rights and of the Family (Art. 17), Rights of the Child (Art. 19),
freedoms, without any discrimination for reasons Right to Nationality (Art. 20), Right to Property
of race, color, sex, language, religion, political or (Art. 21), Progressive Development (Art. 26).
other opinion, national or social origin, economic
status, birth, or any other social condition.”

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“When the Commission receives a petition

or communication alleging violation of any of
3 the rights protected by this Convention, it shall
proceed as follows:
What is the significance of the “The
American Convention on Human a. If it considers the petition or
Rights”? communication admissible, it shall request
information from the government of the
state indicated as being responsible for the
alleged violations and shall furnish that
THE INTER-AMERICAN COURT
government a transcript of the pertinent
OF HUMAN RIGHTS portions of the petition or communication.
Following the entry into force of the American This information shall be submitted within
Convention on Human Rights, the Inter-American a reasonable period to be determined by
Court of Human Rights was established as foreseen the Commission in accordance with the
by the Convention (Opitz, 2002, 210). The Court circumstances of each case.
consists of seven members (judges) each elected by
b. After the information has been received,
secret ballot for a duration of six years and may
or after the period established has elapsed
be reelected only once. The judges must be elected
and the information has not been received,
“in an individual capacity from among jurists of
the Commission shall ascertain whether the
the highest moral authority and of recognized
grounds for the petition or communication
competence in the field of human rights, who
still exist. If they do not, the Commission
possess the qualifications required for the exercise
shall order the record to be closed.
of the highest judicial functions in conformity with
the law of the state of which they are nationals or c. The Commission may also declare the
of the state that proposes them as candidates” (Art. petition or communication inadmissible or
52). According to the Convention, “no two judges out of order on the basis of information or
may be nationals of the same state”. A judge elected evidence subsequently received.
to replace a judge whose term has not expired yet, d. If the record has not been closed, the
has to complete the term of the latter (Art. 54). Commission shall, with the knowledge of
Only the States Parties to the Convention and the the parties, examine the matter set forth
Commission shall have the right to submit a case in the petition or communication in
to the Court. order to verify the facts. If necessary and
advisable, the Commission shall carry out
important an investigation, for the effective conduct
of which it shall request, and the states
concerned shall furnish to it, all necessary
Only the States Parties to the Convention
facilities.
and the Commission shall have the right to
submit a case to the Inter-American Court of e. The Commission may request the states
Human Rights. concerned to furnish any pertinent
information and, if so requested, shall hear
oral statements or receive written statements
However, in order for the States Parties or for from the parties concerned.
the Commission to submit a case before the Court,
the local remedies must have been exhausted and f. The Commission shall place itself at the
the Commission must have been seized of the disposal of the parties concerned with a
matter at hand beforehand, as required by the 61st view to reaching a friendly settlement of the
Article of the Convention which demands “that matter on the basis of respect for the human
the procedures set forth in Articles 48 and 50 shall rights recognized in this Convention.
have been completed”. Article 48, in return, has 2. However, in serious and urgent cases,
the following: only the presentation of a petition or
communication that fulfills all the formal

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requirements of admissibility shall be and expert witnesses and the subject of

necessary in order for the Commission to their declarations; and the legal arguments
conduct an investigation with the prior and pertinent conclusions. In addition, the
consent of the state in whose territory a Commission shall include the name and
violation has allegedly been committed.” address of the alleged victims, or of their
Article 50 of the Convention, on the other duly accredited representatives, when this is
hand, seeks that “If a settlement is not reached, the possible. 2. the names of the Agents or the
Commission shall, within the time limit established Delegates.
by its Statute, draw up a report setting forth the 3. If this information is not provided in the
facts and stating its conclusions. If the report, in application, the Commission, in its capacity
whole or in part, does not represent the unanimous as guarantor of the public interest under
agreement of the members of the Commission, any the American Convention, shall represent
member may attach to it a separate opinion. The the alleged victims in order to ensure that
written and oral statements made by the parties in they enjoy legal defense. If the application
accordance with paragraph 1.e of Article 48 shall is filed by the Commission, it shall be
also be attached to the report. 2. The report shall accompanied by the report referred to in
be transmitted to the states concerned, which shall Article 50 of the Convention (as mentioned
not be at liberty to publish it. 3. In transmitting the above) (The Rules of Procedure).
report, the Commission may make such proposals Article 62 is an important article of the
and recommendations as it sees fit.” Convention. This article authorizes the States
Only after these concrete steps regulated in Parties to the Convention to “declare that (upon
these articles are taken the case may be brought depositing its instrument of ratification or
before the Court. One must take cognizance of the adherence to this Convention, or at any subsequent
fact that the Commission is not necessarily called time) it recognizes as binding, ipso facto and not
upon to submit each and every communication requiring special agreement, the jurisdiction of the
before it to the Court. The dispute the Commission Court on all matters relating to the interpretation
is dealing with must be evaluated as an important or application of this Convention” (Opitz, 2002,
case. Only then, the Commission may deem it 211). Furthermore, “Such declaration may be made
called for to submit the case to the Court. unconditionally, on the condition of reciprocity,
“For a case to be referred to the Court under for a specified period, or for specific cases”.
Article 61(1) of the Convention, a brief must be The Court has the jurisdiction to try a
filed with the Secretariat in any of the working case in connection with the application or the
languages of the Tribunal. The submission of interpretation of any one or more of the articles
the case in only one working language shall not of the Convention (Buergenthal, 1995, 208). For
suspend the proceeding; however, a translation the States which are parties to a dispute, may bring
into the language of the respondent State must be this dispute between only in case both or all of
submitted within the following 21 days, as long as these States concerned must have recognized the
that language is one of the working languages of competence of the Court. The Court is competent
the Court” (The Rules of Procedure, Art. 34). to examine all the transactions of the Commission.
The brief containing the application shall The Court has the competence to probe into those
indicate: allegations as to the lack of its own incompetence
to try a specific case. Here the Court will decide
1. the claims (including those relating to
whether it is competent to act further in relation
reparations and costs); the parties to the
to the case. If the Complainant Party has failed to
case; a statement of the facts; the orders
exhaust all local remedies but the Commission in
on the opening of the proceeding and
error has claimed other, a condition of admissibility
the admissibility of the petition by the
has not been met. In such situations, the Court can
Commission; the supporting evidence, with
scrutinize this erroneous decision of admissibility
an indication of the facts on which it will
(Buergenthal, 1995, 211).
bear; the individualization of the witnesses

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The Court has an obvious competence to offer its If the Court is informed that the victims or their
own interpretation of the Convention. In addition, representatives, the respondent State, and, if applicable,
the Court may be asked to interpret other legal the petitioning State have reached an agreement with
sources about human rights in American States. respect to the execution of the judgment on the merits,
The Rules of the Procedure has the following: it shall verify that the agreement accords with the
Convention and rule accordingly.
“If, as provided for in Article 64(1) of the The Court may deem it necessary to render
Convention, the interpretation requested refers to decision as to provisional measure to prevent a
other treaties concerning the protection of human further aggravation of a situation detrimental to
rights in the American States, the request shall human rights. “In cases of extreme gravity and
indicate the name of the treaty and parties thereto, urgency, and when necessary to avoid irreparable
the specific questions on which the opinion of the damage to persons, the Court shall adopt such
Court is being sought, and the considerations giving provisional measures as it deems pertinent in
rise to the request. matters it has under consideration. With respect to
a case not yet submitted to the Court, it may act at
If the request is submitted by an OAS organ,
the request of the Commission”. It is important that
it shall indicate how the subject of the request falls
there must be elements about the dispute which call
within its sphere of competence.”.
for this step be taken. There must be extreme gravity
and urgency and irreparable damages should be a
The judgments of the Court are final and
pressing risk for the persons concerned. In those
not subject to appeal. However, the parties to a
cases, not submitted to the Court yet, the Court
dispute can request an interpretation the judgment
may not adopt a precautionary measure, except
rendered by the court, if there is a disagreement
for a request by the Commission itself to do so.
as to the meaning or scope of the judgment. The
Only in this scenario, the Court has is competent
request for the interpretation of the Judgment has
to call for the adoption of precautionary measures
to be made within ninety days from the date of
as regards those cases not submitted hitherto.
notification of the judgment. This should not be
perceived as a legal remedy where the Court will The Court may transmit advisory opinions.
review the legality of its own judgment. The Court According to the Rules of Procedure of the
will solely clarify further what its judgment or its Court; Requests for an advisory opinion must
rather ambivalent part really means. state the specific questions on which the opinion
of the Court is being sought. Those requests for
The Judgments of the Court must be reasoned,
an advisory opinion submitted by a Member
i.e. it should be clear why the Court opts to decide
State or by the Commission shall, in addition,
the way it has.
identify the exact provisions to be interpreted, the
In accordance with Article 63, “If the Court finds considerations giving rise to the request, and the
that there has been a violation of a right or freedom names and addresses of the Agent or the Delegates.
protected by this Convention, the Court shall rule Should the advisory opinion be sought by an OAS
that the injured party be ensured the enjoyment of organ other than the Commission, the request
his right or freedom that was violated”. The Court shall also specify how it relates to the sphere of
“shall also rule, if appropriate, that the consequences competence of the organ in question, in addition to
of the measure or situation that constituted the the information listed in the preceding paragraph
breach of such right or freedom be remedied and (Rules of Procedure, Art. 70).
that fair compensation be paid to the injured party”.
The part of a judgment of the Court, which deals
with compensatory damages may be executed in
the country concerned in accordance with domestic
procedural law which governs the execution of 4
judgments against the state. What is the structure of the Inter-
The Rules of Procedure determines that if no specific American Court of Human Rights
ruling on reparations and costs has been made in the like? How does this Court fulfill its
judgment, the Court shall set the date and determine duties?
the procedure for this deferred part of the decision.

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Explain the basic features of the American

LO 1 Convention on Human Rights

The African Charter of Human and Peoples’ Rights (The African Charter) is the foremost legal instrument
when one is determined to elaborate this issue on an African setting. That the Charter stipulates not only
human rights but also peoples’ rights is one the most striking of these distinctive features. In addition,
the Charter has some regulations on the obligations of persons. The main reason for this rather unusual
regulation is the African understanding of human rights which is the backbone of the Charter. The

Summary
Charter consists of economic, social, cultural rights as well as those civil and political rights. The civil and
political rights are to be found between the third and the sixteenth Articles of the Charter. One of the
distinctive features of the African Charter is that it has defined some concrete duties for the nationals of
the States Parties to itself. Article 27, for example, defines the duty of an individual towards one’s “family
and society, the State and other legally recognized communities and the international community”.
Human rights regimes have one explicit objective and that is the betterment of treatments individuals and
groups of individuals face when dealing with the actions, omissions and transactions of those authorities
holding power.
The African Charter is not an exception in this regard and created a system that enables the surveying of
the its own implementation. Charter labels as “the measures of safeguard” those precautions created within
its of review system. Article 30 foresees the establishment of a Commission by stating that “an African
Commission on Human and Peoples’ Rights, hereinafter called “the Commission”, shall be established …
to promote human and peoples’ rights and ensure their protection in Africa”. Another review system was
later added to the Commission by virtue of the Protocol to the African Charter on Human and Peoples’
Rights on the Establishment of an African Court on Human and Peoples’ Rights. The mandate of this said
Court is to complement and reinforce the functions of the African Commission on Human and Peoples’
Rights, which is referred to as Banjul Commission.
The first actor created for the better execution of the rules available in the African Charter is the so-called
Banjul Commission. The Commission consists of 11 members. These members are elected by the African
Union Assembly. The Assembly considers equitable geographical and gender representation in electing
the members of the Commission. Members of the Commission are elected for a six-year term and are
eligible for reelection (The Commission Website). Given the delicate nature of their task, the members
of the Commission are expected to preserve their independence from their own States. They are expected
to discharge their obligations in their personal capacity and not as representatives of their respective
countries.
The then-functioning Organization of African Unity (OAU) decided to establish a working group in
1994, the aim of which was to study the idea of the establishment of a Human Rights Court to prevent
violations of human rights and to augment the protective mechanisms. This group remained active until
1998. Again in 1998 the OAU adopted the Protocol to the African Charter on Human and Peoples’
Rights on the Establishment of an African Court on Human and Peoples’ Rights. The Protocol came into
force on 25 January 2004. The Court is composed of 11 Judges, who are expected by the Protocol to have
high moral values, high professional recognition and experience.

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Describe “The Court on Human

LO 2 and Peoples’ Rights”.

The then-functioning Organization of African Unity (OAU) decided to establish a working group in
1994, the aim of which was to study the idea of the establishment of a Human Rights Court to prevent
violations of human rights and to augment the protective mechanisms. This group remained active until
1998. Again in 1998 the OAU adopted the Protocol to the African Charter on Human and Peoples’
Rights on the Establishment of an African Court on Human and Peoples’ Rights. The Protocol came into
force on 25 January 2004. Following its entry into force, the first judges of the Court was elected in 2006
Summary

by the African Union. In the following year the Court assumed its work with its seat in Arusha, Tanzania,
which is not the first seat of the Court however. The Court was originally established in Addis Ababa,
Ethiopia in November 2006, but then moved to Arusha.
“Between 2006 and 2008, the Court dealt principally with operational and administrative issues,
including the development of the structure of the Court’s Registry, preparation of its budget and drafting
of its Interim Rules of Procedure. In 2008, during the Court’s Ninth Ordinary Session, the Court adopted
the Interim Rules of Court, pending consultation with the African Commission on Human and Peoples’
Rights, in order to harmonize their rules. This harmonization process was completed in April 2010, and
in June 2010, the Court adopted its Final Rules of Court” (The Court’s Official Website).
The Court is composed of 11 Judges, who are expected by the Protocol to have high moral values, high
professional recognition and experience. It is another expectation of the Protocol that the nominations
should be made from among such a group of individuals, who are either academically successful or who
have great practice-oriented careers. The Protocol orders the judges of the Court be elected for a period of
six years. These may be re-elected only once.

Identify the human rights protection

LO 3 system on American Continent.

When talking about the protection of human rights in an American setting, there come to mind two
distinct procedures of protection. The first one is the protective mechanism foreseen by the Organization
of American States Charter. The second one is the procedure related with the American Convention on
Human Rights. The existence of two “similar” procedures to the same objective may get thing complicated,
especially as regards the decision which one these to employ in a given concrete case. However, this situation
in a sense is also an enrichment, a pro-human rights position that may present a holistic accomplishment
of the lofty ideal of protection

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Human Rights

Identify the human rights protection

LO 4 system in African Continent.

The Convention aims to secure the respect for a high a number of civil and political rights. By imposing
a wide ranging obligation of anti-discrimination, it has strived to allow each and every individual to enjoy
these rights. Further, the Convention defines it an obligation, to take progressive steps with a view to
paving the way for the enjoyment of those rights enshrined in the Charter of OAS.
The States Parties to the Convention must not only provide the respect for those human rights but also

Summary
safeguard free and unfettered use of them. A high threshold of involvement on behalf of the Parties is
expected here. The Convention has two different organs. The very first one of these is the Commission.
Thus, the Commission is entrusted with tasks related to two different organizations, the OAS and the
Convention. The Commission discharges its obligations in Washington D.C., where the OAS is also
seated. Should a need arise, the Commission may opt to hold its proceedings in another State Party. The
Commission is made up of seven members selected by the OAS. The Commission has the right and the
authority to accept applications from States Parties, real persons or groups of real persons and NGO’s.
Following the entry into force of the American Convention on Human Rights, the Inter-American Court
of Human Rights was established as foreseen by the Convention. The Court consists of seven members
(judges) each elected by secret ballot for a duration of six years and may be reelected only once. The
judges must be elected “in an individual capacity from among jurists of the highest moral authority
and of recognized competence in the field of human rights, who possess the qualifications required for
the exercise of the highest judicial functions in conformity with the law of the state of which they are
nationals or of the state that proposes them as candidates” (Art. 52). According to the Convention, “no
two judges may be nationals of the same state”. A judge elected to replace a judge whose term has not
expired yet, has to complete the term of the latter (Art. 54). Only the States Parties to the Convention and
the Commission shall have the right to submit a case to the Court.

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1 Which one of the following is a distinctive 5 Individual communications relating to

feature of the African Charter on Human and human and peoples’ rights received by the African
Peoples’ Rights? Commission on Human and Peoples’ Rights, shall
be considered, if they have met some standards.
A. That it is meant to be implemented in a certain According to the statement below, where below
Test Yourself

region only. has one of these standards been misstated?

B. That it contains some human rights.
C. That it contains some duties for persons. A. The communications indicate their authors
even if the latter request anonymity,
D. That it envisages some bodies and/or institutions
for its own implementation. B. The communications are expected to be
compatible with the Charter.,
E. That it has no claim of universality.
C. The communications are not written in
disparaging or insulting language directed
2 African Commission on Human and Peoples’ against the State concerned and its institutions
Rights is also referred to as ______ Commission. or to the Organization of African Unity,
Which one of the following countries completes D. The communications are based exclusively on
the sentence above? news discriminated through the mass media,
A. Banjul E. The communications are to be sent after
exhausting local remedies, if any, unless it is
B. Monrovia
obvious that this procedure is unduly prolonged.
C. Nairobi.
D. African.
6 Where is the seat of the African Court on
E. Humane. Human and Peoples’ Rights?

3 The African Commission on Human and A. Nairobi.

Peoples’ Rights consists of 11 members, who are B. Arusha.
elected by the ________________. C. Johannesburg.
D. Windhoek.
Which one of the following completes the sentence
above ? E. Casablanca.

A. United Nations. 7 When did the African Court on Human

B. European Union and Peoples’ Rights adopt its own Final Rules of
C. African Union Assembly Court?
D. Organization of African Unity
A. June 2010
E. The Economic Community of West African
B. June 2009
States
C. July 2009
4 D. January 2010
Which one of the following is not among
those different tasks undertaken by the African E. February 2008
Commission on Human and Peoples’ Rights?
8 When was the Organization of American
A. Informative Tasks. States (OAS) established by the signing of the
B. Promotional Tasks. Charter of OAS in Bogota, Colombia?
C. Legislative Tasks.
A. 20 May 1950.
D. Review Tasks.
B. 30 April 1948.
E. Law Enforcement Tasks
C. 30 April 1950.
D. 30 May 1968.
E. 30 April 1958.

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Human Rights

9 According to the American Convention 10 Which one of the following sentences is

on Human Rights, “every person has the right wrong as regards the Inter-American Court of
to have his physical, mental, and moral integrity Human Rights?a. Viner
respected”. Which one of the following is this
regulation more closely about? A. The Court consists of seven members (judges)

Test Yourself
each elected by secret ballot for a duration of
A. Education six years and may be reelected only once.
B. Nationality B. The judges must be elected “in an individual
C. Peace capacity from among jurists of the highest
D. Family moral authority and of recognized competence
E. Torture in the field of human rights.
C. No two judges may be nationals of the same
state.
D. A judge elected to replace a judge whose term
has not expired yet, will start anew her own
term in its entirety.
E. Only the States Parties to the Convention and
the Commission shall have the right to submit
a case to the Court.

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6
Regional Protection of Human Rights: African and American Mechanisms

If your answer is wrong, please review the If your answer is wrong, please review the
1. C 6. B
“The Protection of Human Rights on the “The African Court on Human and Peoples’
African Continent” section. Rights” section.

If your answer is wrong, please review the If your answer is wrong, please review the
2. A 7. A
“The Protection of Human Rights on the “The African Court on Human and Peoples’
Answer Key for “Test Yourself”

African Continent” section. Rights” section.

If your answer is wrong, please review the If your answer is wrong, please review
3. C 8. B
“The Protection of Human Rights on the the “The Protection of Human Rights on
African Continent” section. American Continent” section.

If your answer is wrong, please review the If your answer is wrong, please review
4. E 9. E
“The Protection of Human Rights on the the “The Protection of Human Rights on
African Continent” section. American Continent” section.

If your answer is wrong, please review the If your answer is wrong, please review the
5. D “The Protection of Human Rights on the
10. D
“The Inter-American Court of Human
African Continent” section. Rights” section.

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 6
Human Rights

Which human rights are regulated by the African Charter?

Suggested Answers for “Your Turn”

According to the first Article of the African Charter, States parties thereto
pledge to recognize the rights, duties and freedoms set forth therein and
undertake to take all measures related to legislation or of other nature. The
second Article comes up with a serious non-discrimination clause banning all
kinds of discrimination and distinction of any kind such as race, ethnic group,
colour, sex, language, religion, political or any other opinion.
The civil and political rights are to be found between the third and the
sixteenth Articles of the Charter. Article 3 foresees the equality before the law
principle. Article 4 explicitly states that “Human beings are inviolable. Every
human being shall be entitled to respect for his life and the integrity of his
person. No one may be arbitrarily deprived of this right”, whereas Article 5
stresses the human dignity. Article 5 also prohibits all kinds of exploitation,
degrading and inhuman punishments and treatments. Article 6 of the Charter
bans arbitrary detention and arrest. Right to fair trial and that ever-significant
presumption of innocence are among the rights and freedoms touched upon
by the 7th Article of the Charter. Freedom of religion and conscience, right to
assembly and right to property are among other classical rights enshrined in
the mentioned section of the Charter.
Article 17 of the African Charter explicitly refers to the right to education
your turn 1 and right to a free participation in the cultural life of her community. Article
18 describes the family as the “natural unit and basis of society”. In harmony
with this view of the family, the Article defines a number of legal obligations
for the State Party. Article 19 highlights the in an African setting important
and sensitive matter of Peoples’ Equality. This equality is an equality on a
communitarian level among different groups of peoples and should not be
confused with personal equality. Domination of a group of people by another
group is an unjustifiable act in the eyes of the drafters of the Charter. The
Peoples may also “freely dispose of their wealth and natural resources (Article
21); and have the right to a general satisfactory environment favourable to
their development (Article 24)” (W.H.O., p. 1).
Article 22 of the African Charter states that “All peoples shall have the right
to their economic, social and cultural development with due regard to their
freedom and identity and in the equal enjoyment of the common heritage of
mankind”.
Article 23 recognizes that “(a)ll peoples shall have the right to national and
international peace and security”. Therefore, right to peace has been recognized
not only on a national level but also on an international level. The peace and
security are defined rather expansively in this Article, for it does not solely
refer to the text of the United Nations Charter.

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Regional Protection of Human Rights: African and American Mechanisms

What do you know about the historical stages of the

establishment of the African Court of Human Rights?
Suggested Answers for “Your Turn”

The then-functioning Organization of African Unity (OAU) decided to

establish a working group in 1994, the aim of which was to study the idea of
the establishment of a Human Rights Court to prevent violations of human
rights and to augment the protective mechanisms. This group remained active
until 1998. Again in 1998 the OAU adopted the Protocol to the African
Charter on Human and Peoples’ Rights on the Establishment of an African
Court on Human and Peoples’ Rights. The Protocol came into force on 25
January 2004. Following its entry into force, the first judges of the Court
was elected in 2006 by the African Union. In the following year the Court
assumed its work with its seat in Arusha, Tanzania, which is not the first seat
your turn 2 of the Court however. The Court was originally established in Addis Ababa,
Ethiopia in November 2006, but then moved to Arusha.
Between 2006 and 2008, the Court dealt principally with operational and
administrative issues, including the development of the structure of the
Court’s Registry, preparation of its budget and drafting of its Interim Rules of
Procedure. In 2008, during the Court’s Ninth Ordinary Session, the Court
adopted the Interim Rules of Court, pending consultation with the African
Commission on Human and Peoples’ Rights, in order to harmonize their
rules. This harmonization process was completed in April 2010, and in June
2010, the Court adopted its Final Rules of Court.

What is the significance of the “The American Convention

on Human Rights”?

The American Convention on Human Rights was adopted in San José, Costa
Rica, in November 1969. It took a rather long time for this Convention to
enter into force. This was only managed in 1978, when a member State
deposited the eleventh document of ratification. The Convention is defined
as the most important human rights treaty among the American States. It had
an undeniable influence received from The European Convention on Human
Rights (de Schutter, p. 27). By means of the Convention, the Inter-American
your turn 3 Court of Human Rights was also established.
The Convention aims to secure the respect for a high a number of civil and
political rights. By imposing a wide-ranging obligation of anti-discrimination,
it has strived to allow each and every individual to enjoy these rights. Further,
the Convention defines it an obligation, to take progressive steps with a view
to paving the way for the enjoyment of those rights enshrined in the Charter
of OAS. It is required by the Convention the States Parties not only provide
the respect for those human rights but also to safeguard free and unfettered
use Çof them (Buergenthal, 1995, 195-196).

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Human Rights

What is the structure of the Inter-American Court of Human

Rights like? How does this Court fulfill its duties?

Suggested Answers for “Your Turn”

The Court consists of seven members (judges) each elected by secret ballot
for a duration of six years and may be reelected only once. The judges must
be elected “in an individual capacity from among jurists of the highest moral
authority and of recognized competence in the field of human rights, who
possess the qualifications required for the exercise of the highest judicial
functions in conformity with the law of the state of which they are nationals
or of the state that proposes them as candidates” (Art. 52). According to the
Convention, “no two judges may be nationals of the same state”. A judge
your turn 4 elected to replace a judge whose term has not expired yet, has to complete the
term of the latter (Art. 54). Only the States Parties to the Convention and the
Commission shall have the right to submit a case to the Court.
However, in order for the States Parties or for the Commission to submit
a case before the Court, the local remedies must have been exhausted and
the Commission must have been seized of the matter at hand beforehand,
as required by the 61st Article of the Convention which demands “that the
procedures set forth in Articles 48 and 50 shall have been completed”.

References
Aaaa African Commission On Human and Peoples’ Braun, T. ve Mulvagh, L. (2008). The African
Rights (2010). Principles and Guidelines On the Human Rights System: A Guide for Indigenous
Implementation of Economic, Social and Cultural Peoples. Retrieved from https://www.forestpeoples.
Rights in The African Charter On Human and org/sites/default/files/publication/2010/08/
Peoples’ Rights. africanhrsystemguideoct08eng.pdf>
African Court Law Report Volume 1: 2006-2016 Buergenthal, T. (1995). International Human Rights.
(2019). Report of Judgments, Advisory Opinions St. Paul, Minnesota: West Publishing Co.
and Other Decisions of the African Court on Human
De Schutter, O. (2010). International Human Rights
and Peoples’ Rights. Pretoria: Pretoria University
Law. Cambridge: Cambridge University Press.
Law Press (PULP).
Hannum, H. (1992). Guide to international
Robertson, A.H., & Merrills J.G. (1996). Human
human rights practice (2nd. ed.). Philadelphia:
rights in the world : an introduction to the study of
Philadelphia University Press.
the international protection of human rights (4th
ed.). Manchester and New York: Manchester Opitz, P. J. (2002). Menschenrechte und Internationaler
University Press. Menschenrechtsschutz im 20. Jahrhundert.
München: UTB.
Bozkurt, E. (2006). Uluslararası İnsan Hakları
Hukuku. Ankara: Asil Yayın Dağıtım Şirketi.

167
 European Human Rights Protection
System: The Council of Europe and
Chapter 7 The European Court of Human Rights
After completing this chapter, you will be able to:
Learning Outcomes

1 Familiarise with the institutional structure of the

Council of Europe 2 Describe and evaluate the competence of the
European Court of Human Rights

Key Terms
The Council of Europe
The Committee of Ministers
The Parliamentary Assembly
The Congress of Local and Regional Authorities of
Europe
The Venice Commission
Chapter Outline The European Court of Human Rights
Introduction
Single-judge Formation
The Council of Europe
Section
European Court of Human Rights
Chamber
Grand Chamber
Individual Application
Inter-State Application
Advisory Opinion
Admissibility
Merits of the Case

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Human Rights

INTRODUCTION
The human rights protection mechanisms generated in Europe since the end of the World War II are
respected, appreciated and renowned worldwide. The success of the European Union (EU) to unite many
States under its supranational authority plays a crucial role in this picture. The EU does not have a specific
human rights mechanism though. Leaving aside unconnected individual clauses and provisions of various
instruments enacted in the course of the integration process, its only full-fledged document is The Charter
for Fundamental Rights that is declared in 2000 and gained binding character in 2009. So, although the
universal rights and freedoms of the European citizens are -in principle- under the juridical guarantee of
the European Court of Justice of the EU thanks to the 2009 Lisbon Treaty (Article 6/1) that acknowledged
fundamental rights as “general principles of the Union’s law”, the EU has not developed a particular legal
competence in human rights protection. Bearing also in
mind the membership conditions (“Copenhagen Criteria”)
for candidate states, this attitude of the EU might be seen
as a bit confusing and even challenging. Yet this is mostly internet
because the EU basically relies on the mechanism generated For the text of the Lisbon Treaty (officially
and developed by the Council of Europe (CoE). For not entitled “Treaty of Lisbon Amending the
only all members of the EU are subject to the competence Treaty on European Union and the Treaty
of the European Court of Human Rights (ECrtHR), all Establishing the European Community”), visit
candidate States are also required to do so. Therefore, it https://eur-lex.europa.eu/
would not be wrong to conclude that it is the CoE that lies
at the heart of the human rights protection system in the
continent.

important

The Treaty of Lisbon officially establishing the legal personality of the EU obliges the EU to accede to the
ECHR in a way that does not affect the Union’s competences (Article 6/3). However, some member states
remain quite skeptical about such an accession. Although the Parliament and the Commission seemingly
support the idea, the EU circles in general seem hesitant about the issue. More importantly, the European
Court of Justice of the EU subsequently developed objections on the drafts prepared to that end and put that
the ECRH system is not compatible with specific legal arrangements of the EU and its exclusive jurisdiction.
Generally speaking, the main problem is the uncertainty about the legal results of the potential encounter in
between an intergovernmental and a supranational remedy. To put it simply, once the EU acceded, the ECHR
would become an integral part of the EU primary law. So, the provisions of the ECHR would continue being
international obligations for non-EU members that would be relatively free at home in adapting measures
required by the judgements, the same obligations of the EU members will turn into supranational obligations
that will have direct effect in their domestic legal systems. Moreover, the supranational judicial power of the
courts of the EU arising from the ECHR would most probably collide with the international judicial power
of the ECrtHR.
Admittedly, it is hard to overcome these technical-legal problems. Yet it seems that the recent political climate
also gives some excuse to parties that drag their feet.

Indeed, the CoE is usually considered as the most efficient of its kind and even as one of the greatest
achievements of international human rights law. Relevant conventions and protocols cover a wide spectrum
of rights, the mechanisms are well-defined, the values thereby put under protection are regarded as foundation
stones of Europe, and the mechanism in general is taken seriously by the wider public. Nevertheless, this
does not mean that the said rights are always duly upheld and the mechanism operates as smooth as
envisaged in all occasions. Although it is meant to protect the rights of the individuals exposed to violations

169
 European Human Rights Protection System:
The Council of Europe and The European Court of Human Rights

committed by, and/or on behalf of, public power, a surprise that this “legal remedy” will continue to
the rules are created and implemented by the States take shape in line with the changes in the general
Parties at the end of the day. socio-economic and political conditions. In other
So, as has been the case recently, the whole words, one that wants to figure out the general
mechanism is sometimes criticised for being attitude of the ECrtHR and built expectations
vulnerable to changes in the general political on it has a good grasp of developments in world
climate and thus prioritising the expectations of the politics.
States Parties rather than the rights of the human
beings. In other words, despite all progressivist Brief History
expectations, regrets and disappointments are also
The CoE, which introduces itself as “the
expressed particularly in retrogressive sequences.
continent’s leading human rights organisation”
Hence, the structure of the CoE and its human
was founded on 5 May 1949 by the Treaty of
rights mechanism worth a close scrutiny.
London that officially “constitute the Statute of the
Council of Europe”. Based in Strasbourg, it is one
THE COUNCIL OF EUROPE of the leading intergovernmental bodies founded
The CoE has a much-praised mechanism that in Europe in the wake of the World War II. The
obliges States to secure fundamental rights of not preamble of its statute announces that the Parties
only their own citizens but also of everyone within are “convinced that the pursuit of peace based upon
their jurisdiction. All of its members are parties the justice and international co-operation is vital for
ECHR and most of its Protocols, which are put the preservation of human society and civilisation”.
into force to protect human rights, democracy Accordingly, their “devotion to the spiritual and
and the rule of law. The mechanism is maintained moral values which are the common heritage of their
by the ECrtHR, which has delivered more than peoples and the true source of individual freedom,
10.000 judgments since it was first established political liberty and the rule of law” has made “a
in 1959. There is no doubt that its case-law has closer unity between all like-minded countries of
been influential in promoting, expanding and Europe” essential. In accordance with the aim “to
strengthening respect to human rights and basic achieve a greater unity between its Members for
freedoms, the rule of law, fair trial, justice and the purpose of safeguarding and realising the ideals
democracy in Europe. Besides, eradication of and principles which are their common heritage
death penalty in the wider Europe and the struggle and facilitating their economic and social progress”
against torture and inhuman treatments are most (Article 1), the CoE has produced a number of
the praised contributions of the Council. conventions, charters, agreements and protocols
that are judicially overseen by the ECrtHR. Among
The mechanism that effectively serves also to
these, particularly Protocols opened to signature as
the EU has undergone dramatic legal and political
from 1980’s are of particular importance, as they
changes in recent years though. The Court is of
have been crucial milestones and benchmarks in
the view that introducing filtering mechanisms
the struggle to eradicate death penalty, torture and
was unavoidable, as it receives over 50.000 new
ill-treatment in the wider Europe.
applications every year and therefore “has been
a victim of its own success” (CoE, 2014, 11).
Some, however, anticipate that rearranging the
application and admissibility criteria in an era of
“return to State” signals that human rights and internet
even liberalism have had its day. It is yet to be seen For the texts of the Treaty of London, the European
whether the prevailing circumstances and changes Convention on Human Rights and the Protocols
are structural or conjunctural. However, one thing thereto, visit www.coe.int/en/web/conventions/full-list
is sure: The mechanism was, even in its heyday,
a product of the political climate in which it was
created, operated and enforced. So, it would not be

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Human Rights

important

The Statute of the CoE is signed on 5 May 1949 by ten States, namely Belgium, Denmark, France, Ireland,
Italy, Luxembourg, the Netherlands, Norway, Sweden and the United Kingdom. Iceland, Greece, West
Germany and Turkey joined the original signatories within a year and therefore regarded by some as founding
members. The Council has 47 members as of 2019. Canada, Vatican, Japan, Mexico and the US are Observer
States, whereas Israel is Observer to the Parliamentary Assembly.

internet
For the official website of the Council or Europe, visit
www.coe.int

Organs
As all international organisations, the CoE has its own authorities and organs. The principal ones
that play a role in the human rights protection mechanism are the Secretary-General, the Committee of
Ministers, the Parliamentary Assembly, the Congress of Local and Regional Authorities of Europe, the
Venice Commission and, above all, the European Court of Human Rights-ECrtHR.

Figure 7.1 Marija Pejčinović Burić, the former Minister of Foreign and European Affairs of Croatia, was elected the
14th Secretary-General of the CoE on 26 June 2019 and commenced her office on 18 September 2019.
Source: http://media-gallery.coe.int/search/view/keyword?thes=35&word=0&check=3&size=medium&nb=30&page
=2&sort-property=Date&sort-way=DESC&filter=none)

The Secretary-General, who is elected for a term of five years by the Parliamentary Assembly, leads
and represents the Council. S/he is expected to supervise the routine operation of the organisation. Yet
the main decision and policy making body of the Council is the Committee of Ministers. It officially
comprises the ministers of foreign affairs of the member States who are ordinarily represented by their
accredited permanent diplomatic representatives based in Strasbourg. Presided by each member for a
period of six months on a rotating basis in alphabetical order, the Committee meets weekly, whereas
meetings at ministerial level are convened once a year. The Committee has a crucial role in monitoring the

171
 European Human Rights Protection System:
The Council of Europe and The European Court of Human Rights

practices of States regarding the protected rights and values. In that vein, it supervises the execution of the
judgments of the ECrtHR. It has the responsibility and duty to “consider the action required to further the
aim of the CoE, including the conclusion of conventions or agreements and the adoption by Governments
of a common policy with regard to particular matters.” (Article 15). Finally, it is the body that decides
whether to accept (“invite”) a new member to the CoE.

important

The membership admission procedure of the CoE is not a very common one. The Treaty of London indicates
that “any European State” which accepts “the principles of the rule of law and of the enjoyment by all persons
within its jurisdiction of human rights and fundamental freedoms” may be invited to become a Member of the
CoE by the Committee of Ministers (Articles 3 and 4).
Therefore, the membership is open only to States. This is particularly important given the fact that the following
article indicates that “in special circumstances, a European country, which is deemed to be able and willing to …
[respect human rights and fundamental freedoms], may be invited by the Committee of Ministers to become
an Associate Member”. Although “they shall be entitled to be represented in the Consultative Assembly only”,
it is clear that the Council somehow seeks to take as much political entities as possible on board for a better
protection of human rights. On the other hand, as these invitation resolutions “require a two-thirds majority of
all the representatives entitled to sit on the Committee” (Article 20/c), it is clear that the CoE is still sensitive
about maintaining its internal harmony.

This “governmental” body sustains a close dialogue with the Parliamentary Assembly (PACE), which
is generally seen as the “public face” and even the “motor” of the Council. The Assembly consists of 324
members of parliament from the 47 member States representing some 800 million people. Unlike the
Parliament of the EU, these members are not directly elected by the peoples of the members but are
rather delegations assigned from among the national parliamentarians of member States. However, the
delegations must reflect the political spectrum of their respective national parliaments. Albeit being a
debate forum that keeps an eye on current issues and particularly human rights related ones, the Assembly
holds influential means and instruments. The resolutions and recommendations to governments are quite
important in this context. In addition to special reports prepared by the members mandated, it elects the
Secretary-General of the Council, as well as the judges of the ECrtHR.

Figure 7.2 Parliamentary Assembly of the Council of Europe (PACE) generally meets four times a year in Strasbourg
and convenes legislators representing the 800 million Europeans from the 47 Member States.
Source: http://media-gallery.coe.int/search/view/keyword?thes=35&word=0&check=3&size=medium&nb=30&page
=30&sort-property=Date&sort-way=DESC&filter=none

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Human Rights

important

The Assembly describes itself as a forum for debate that brings together 324 members of parliaments of the
47 member States. Its mission is to uphold the shared values of human rights, democracy and the rule of law
that are the common heritage of the peoples of Europe. To that end, it monitors the human rights records of
the member States and encourages them to improve their laws and practices. Carrying on its work on political
issues with unbinding decisions, it is sometimes criticized of not being bold and influential enough.

The Congress of Local and Regional Authorities of Europe (also known as the Congress of the
Council of Europe) is created in 1994 as a consultative body in line with increasing importance of
regional and local participation and governance. All local and regional authorities in the member states are
represented in the Congress. It is expected to strengthen participatory democracy and governance at local,
national and international levels, as it works in full cooperation with the local and regional authorities,
national governments and the Committee of Ministers. It prepares reports and adopts recommendations
to that end. Its particular concern with contemporary issues is best seen in the growing emphasis on
promoting gender equality, local democracy, governance and preventing corruption and radicalisation. Yet
its recent stance regarding migration and integration policies seems a bit confused and even disappointing.
On the other hand, in the interest of safeguarding general democratic standards, it observes local and
regional elections in member States in full cooperation with the PACE and the Venice Commission, as
well as other intergovernmental organisations such as the Organisation for Security and Cooperation in
Europe. The Congress also develops and applies policies aimed at supporting reforms in neighbouring
non-member States.
Before proceeding to the ECrtHR, one of the semi-autonomous structures of the Council that now
and then hits the headlines should also be briefly introduced. The European Commission for Democracy
through Law, generally known as the Venice Commission as it meets in Venice, is an advisory body of
the CoE on constitutional matters. Its main working areas are democratic institutions and fundamental
rights, constitutional justice and ordinary justice, and elections, referendums and political parties. In
this context, it provides member States with legal advice in bringing their administration into line with
adopted standards and best practices. With its 62 assigned members acting in their individual capacity
including scholars, judges and the like from member States as well as other 15 States, the Commission
is usually expected to provide “emergency constitutional aid”. Depending on the conjunctural or
structural changes, such advice are welcomed by some whereas criticisms are also raised particularly by
diverging authorities.

1
Both the EU and the CoE indicates that “any European State” can become their
respective members provided that other criteria are also met. However, whereas
the EU now and then discusses even whether Turkey is on the continent, the CoE
has full members from Russia to Caucasian States, not to mention Kazakhstan,
whose membership ambition is turned down not on geographic grounds but due
to its poor human rights record. Elaborate on the possible reasons why the two
interpret an identical quasi-geographic criterion in different ways.

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 European Human Rights Protection System:
The Council of Europe and The European Court of Human Rights

EUROPEAN COURT OF HUMAN not allowed to participate in activities that may

RIGHTS compromise the Court’s independence. Likewise,
they cannot sit in a case if they have a family or
All aside, the ECrtHR is undoubtedly the
professional relationship with a party.
main organ of the CoE in terms of human
rights protection. Although originally set up in The number of judges is equal to that of
1959 on the basis of Article 19 of the European member States which is 47 as of 2019 (CoE, 2010,
Convention on Human Rights (ECHR) signed 1). New judges are elected whenever the term of a
in 1950, the Court has started operating as a full- sitting judge expires or when a new member joins
time permanent court based in Strasbourg in 1998 the Council. Although they retire at the age of 70,
to which individuals can apply directly and seek a judge serves until a new one is elected or until
the legal remedies provided by the Council. The the cases s/he sits are adjudicated. But a two-thirds
ECrtHR basically hears and decides on three types majority of the judges may decide to dismiss a judge
of applications. Individual applications and inter- on the grounds that s/he has ceased to fulfill the
State applications are aimed at judging whether a required conditions (Article 23/4, ECHR). All the
State Party has violated one or more of the civil judges constitute the plenary court which has no
and political rights set out in the ECHR, as well judicial functions and yet deals with administrative
as its amending and additional Protocols. Advisory matters such as electing the court’s president, vice-
opinions, on the other hand, are designed to offer president and the registrars, adopting the Rules of
legal assistance to the Committee of Ministers and Court and establishing the Chambers.
highest courts of the States Parties. The plenary court has administrative and judicial
bodies. The administrative ones are called Section.
There are five sections, each of which has its own
The Composition of the ECrtHR president, vice-president and a number of judges
The Court is made up of full-time professional selected in a way that gender-balance is ensured.
judges resident in Strasbourg. They are elected for Judicial formations which are generated from
a non-renewable term of nine years by the PACE within these sections and which fulfill the juridical
with respect to each member “by majority of votes works and the proceedings are called Chambers.
cast from a list of three candidates nominated by” According to the Rules of Court, “a Chamber
it (Articles 22 and 23, ECHR). Member states do is composed of the President of the Section to
not necessarily nominate their citizens. A nominee which the case was assigned, the ‘national judge’
is not required to be a citizen of a member state (the judge elected in respect of the State against
either. This is partly to give particularly the which the application was lodged) and five other
members with small population the flexibility judges designated by the Section President in
to nominate outstanding judges from across the rotation” (CoE, 2014, 5). In addition to chambers
globe. The founders might have also wanted to consisting of seven judges, the Court also has a
show that nation-State and/or nationalism is not Grand Chamber made up of 17 judges, including
their number one priority. Also for the good of the the Court’s President and Vice-Presidents,
Court, the only condition is that they “shall be of the Section Presidents and the national judge,
high moral character and must either possess the together with other judges selected by drawing
qualifications required for appointment to high of lots. Cases are sent to the Grand Chamber in
judicial office or be jurisconsults of recognised two exceptional occasions. First, when any party’s
competence” (Article 21/1, ECHR). They act referral request for fresh consideration is accepted
in their individual capacities without having any by the judges of the Grand Chamber. Second,
institutional-professional ties with States in respect when a case is relinquished by a Chamber on the
of whom they were elected. They are therefore grounds that it “raises a serious question affecting
equipped with special privileges and immunities the interpretation of the Convention or … there is
provided for in Article 40 of the Statute of the a risk of inconsistency with a previous judgment
Council of Europe (Article 51, ECHR). of the Court” (CoE, 2014, 5). So, under normal
The judges hear cases as individuals and do circumstances, the case are heard and judged on by
not represent any State whatsoever. Yet they are a chamber of the court consisting of seven judges.

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Human Rights

There are also three-judge formations. Their previous role to give the admissibility decision is cut down
with Protocol 14 which has entered into force in 2010. For Protocol 14 has introduced a new body, namely
single-judge formations (Article 6, Protocol 14), that primarily give the admissibility decisions.

Figure 7.3 The ECrtHR building’s insides and the façade are designed to symbolise and represent the transparent
nature of the court.
Source: Source: https://www.echr.coe.int/Pages/home.aspx?p=caselaw&c=eng

important

Although the official languages of the Court are English and French, applications may be submitted in any one
of the official languages of the States Parties. However, the proceedings are conducted, and the decisions and
judgements are published, in English and/or French.

The Jurisdiction of the ECrtHR

The Court has jurisdiction over three types of applications as of 2019. Applications by individuals
against the States Parties, inter-state cases, and advisory opinions in accordance with Protocols 2 and 16.
The Court cannot take up cases of its own motion (CoE, 2014, 5), so an application is required in all
circumstances. Needless to say, applications can only be made against States that ratified the ECHR, namely
the States Parties. Any application against third States or individuals would be declared inadmissible.

Individual Application
As a great majority of the applications so far have been lodged by individuals, the individual application
procedure constitutes the bulk of the workload of the Court. Any natural or legal person, including
group of individuals, companies and NGOs, may lodge a case against any State Party alleging that the
latter violated one or more of their rights and guarantees set out in the Convention or its Protocols. So,
being a national of one of the States Parties is neither necessary nor required. As will be elaborated on
below, the only condition is allegedly being exposed to a violation of a State Party “within its jurisdiction”.
The applicant must also demonstrate that s/he has directly and personally been the victim of the alleged
violation(s). A general complaint about a law or a measure cannot be made.

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Some of the basic rights protected by the ECHR and its Protocols are:
- the right to life;
- the right to a fair trial;
- the right to respect for private and family life;
- freedom of thought, conscience and religion;
- freedom of expression;
- the right to freedom of assembly and association;
- the right to an effective remedy;
- the right to the peaceful enjoyment of possessions; and
- the right to vote and to stand for election.
The ECHR and its Protocols prohibits the following:
- the right to vote and to stand for election.
- death penalty;
- torture and inhuman or degrading treatment or punishment;
- slavery and forced labour;

As a sign of the importance attached to the Court’s accessibility, applications prepared in any one of the
official languages of the States Parties may be made directly by individuals and the assistance of a lawyer
is not necessary at least at the application stage. An in-person application is not required either. The duly
completed and signed application form and other required documents demonstrating the alleged violations
must be sent by post to the official address of the Court. It is of paramount importance that the full story
is clearly described and the claims are, if possible and where necessary, substantiated with evidence such as
documents, decisions, medical reports, witness statements and the like. All such documents, as well as the
ones to be submitted by the respondent State, are deposited by the Registrar of the Court.
The application must be made in writing and signed by the applicant or -if available- by the applicant’s
representative. However, those who wish his/her/their identity to be disclosed must immediately inform
the Court of this request together with the reasons thereof. The President will determine whether the
request is justified. In cases where it is determined that the disclosure could cause additional violations or
victimisations, the applicant is referred by his/her initials or simply by a letter in all hearings and publicised
documents. Other personal data such as the identification code/number, date of birth and address that
might reveal the identity of the applicant are not published either.

Admissibility
Once registered, the application becomes subject to the admissibility decision. In other words, the
merits of a case is not heard and judged straight after the application. For being declared admissible, the
application must meet certain criteria. First of all, the application form must have been filled in accurately
and meticulously. As anonymous applications are not admitted except in extraordinary cases as underlined
above, the applicant must have provided his/her name in the form with the original signature at the end.
Besides, applications should not constitute an abuse of the right of application, namely should not be based
on false/fake claims and documents or should not mislead the Court in any other way. Abusive language
is not allowed either, as it also jeopardises the friendly settlement to be examined below. Furthermore, the
case must be compatible with the requirements of ratione materiae, ratione temporis, ratione personae or
ratione loci. That is to say, the subject matter of the application should be about a right protected under the
Convention and its Protocols (ratione materiae), the alleged violation must have occurred after the date of
entry into force of the Convention for the respondent State (ratione temporis), and the alleged violation must
have been committed by the respondent State or must be attributable to it (ratione personae). So, the so-

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called victim status condition should also be met the decision of the highest competent national
(Article 34, ECHR). Accordingly, the application court or authority and ends on the last day of the
must be lodged either directly by the victim or, in six months even if it is a Sunday or public holiday.
cases where the victim died or disappeared, by his/ The applicants must therefore make sure that they
her heirs or close relatives that are accepted by the send their post beforehand in a timely manner.
Court to be indirect victims. Likewise, potential However, although “the Court may only deal with
victims such as immigrants, whose deportation to the matter after all domestic remedies have been
a State with a bad human rights record had been exhausted according to the generally recognised
ordered but not yet executed, may also apply to rules of international law” (Article 35/1, ECHR),
the Court. the rule “is neither absolute nor capable of being
The well-established principle of ratione loci applied automatically”. Thanks to the principle
normally corresponds to violations that took place “justice delayed is justice denied”, the applicant is
within the territory of a State or in a territory expected to make “normal use of domestic remedies
effectively controlled by it. Article 1 of ECHR which are likely to be effective and sufficient”. So,
obliges State Parties to “secure to everyone within “for the purposes of establishing the date of the
their jurisdiction the rights and freedoms defined”. ‘final decision’ or calculating the starting point for
Furthermore, the ECrtHR jurisprudence has the running of the six-month rule”, the Court takes
gradually embraced a unique interpretation into account “only remedies which are normal and
compatible with its main task, namely protecting effective” (CoE, 2019a, 22 ff.).
human rights. Although it quite controversially However, it would not be an exaggeration to
declared some applications inadmissible on the argue that one of the most important challenges
grounds that the alleged violations are committed in of the Court has always been its ever-increasing
territories not normally covered by the Convention, workload. Despite promoting and upholding the
this so-called legal space (espace juridique) importance of its protection mechanism on all
limitation is mostly abandoned (Larsen, 2012, occasions, the Court could not obviously cope with
224 ff.). All in all, the Court seemingly embraces tens of thousands of applications received annually.
an approach that prioritises protection of human This resulted in a very controversial admissibility
rights. Accordingly, particularly extraterritorial system, the latest version of which is envisaged by
captures and detentions of a State Party are deemed Protocol 14 that entered into force on 1 June 2010.
to be within its jurisdiction “for the purposes of
Article 1 of the Convention” (Larsen, 2012, 205
Single-judge System
ff.). So the applicant is expected to show that his/
her/their protected rights are violated by a State The admissibility decision used to be given
Party unjustifiably. unanimously by a three-judge committee up until
2010. This effectively meant that even in cases
Besides, the applicant must have raised the same
where only one of the three judges had seen some
complaints in the national courts. Although the
merits in it unlike the other two, the application
Court does not expect the applicants to make use
was declared admissible. Thus the Court was
of ineffective or extraordinary remedies outside the
ensuring everyone that even a slight probability of
normal appeal procedures, in principal all domestic
abuse was taken seriously and scrutinised. However,
remedies must have been exhausted before applying
Protocol 14 that entered into force in 2010 in the
to the ECHR. Solely claiming that a national
name of reducing the workload of the Court has
court’s decision was unfair or wrong would not
made a dramatic, and in fact controversial, change
suffice. So the complaint should be based on solid
in the admissibility process. The applications are
evidence. Moreover, the matter must have not been
now being examined by a single-judge formation.
submitted to the Court or to another competent
“A single judge may declare inadmissible or strike
international juridical institution.
out of the Court’s list of cases” and “the decision
Last but not least, the application must have shall be final”.
been lodged within six months following the final
domestic decision. This period normally starts with

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Figure 7.4 According to the reformed system, a single-judge may declare inadmissible or strike a case out of the
Court’s list of cases” and this decision is final.

important

Please note that in cases where a single judge cannot decide whether to declare the application (in)admissible,
s/he “shall forward it to a committee or to a Chamber for further examination” (Article 27, ECHR). If such
an application is about an issue well-established in the case-law of the Court, a committee of three judges will
decide both on the admissibility and the merits of the application in question. In cases where an admissibility
decision could not be given by the single judge-formation or the three-judge committee, the assigned Chamber
would decide both on the admissibility and the merits of the application in question (Article 29, ECHR).

Furthermore, a single judge would give the admissibility decision to a wide range of criteria that have
also been changed dramatically by Protocol 14 to the disappointment of many. Actually the Protocol
indicates that its aim is “to guarantee the long-term efficiency of the Court by optimising the filtering and
processing of applications” (CoE, 2014, 11). However, it is a widespread concern that the newly introduced
filtering criteria made things even more controversial and complicated. These filtering criteria allows the
single-judge to declare inadmissible the applications that are considered to be “manifestly ill-founded”
or the cases where “the applicant has not suffered a significant disadvantage” (Article 12, Protocol 14).
Although the revised text seemingly underlines the Court’s commitment to respect for human rights, such
substantive filtering criteria to be applied by a single-judge is generally found to be hardly compatible with
human rights considerations. Accordingly, considerations such as reducing the workload of the Court and
reassuring the expectations of the States Parties seem to prevail.
In fact, the arguments of the Court has some merits. For example, it underlines that “it does not have
the resources to examine trivial or repeated complaints which have no substance and which are not the
kind of cases an international supervisory body should be looking into” (CoE, 2018, 2). Complaints that
constitute an abuse of the right of petition should surely be rejected.
Having said that, such principal problems seems to provide an excuse to abusive demands and practices of
States, who increasingly become inclined to authoritarian, xenophobic, anti-immigrant policies. Likewise,
adopting an admissibility criterion that takes “the degree of disadvantage suffered by the applicant” for

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the sake of “discouraging applications from persons who have not suffered significant disadvantage” is also
a quite risky measure taken by the Court (CoE, 2019a, 7). Rejecting complaints that do “not cause an
applicant any real harm or significant disadvantage” (CoE, 2018, 2) might be understandable particularly
bearing in mind that more than 90 percent of the applications are declared inadmissible. However, taking
into account that the rules and procedures of this “subjective” criterion have not been clearly determined
and declared, hurdles are obviously put not (only) before abusive applications but also before humans and
their protected rights.

important

Admissibility Conditions
The Court examines only cases where
- the right to life;
- one or more of the rights set out in the Convention and its Protocols are alleged to be violated;
- the complaints are based on solid evidence;
- the complaints are directed against a State that ratified the Convention or the Protocol in question;
- the responsibility of a public authority (legislature, administrative body, court of law and so on) is at
stake, not that of private individuals or private organisations;
- acts or events subject to the complaint occurred after the date of ratification by the concerned State of
the Convention or the Protocol in question;
- the applicant is personally and directly affected by the breach of a fundamental right;
- domestic remedies are exhausted;
- the complete application is lodged with the Court within six months from the final domestic decision.
- the complaints in question have not already been examined by the ECrtHR or another international
body.

important

The overwhelming majority of some 57,000 individual applications pending as of 31 December 2018 are
rejected by the ECrtHR without being examined on the merits for failure to satisfy at least of the one of the
admissibility criteria (CoE, 2019, 7).

important

“Pilot Case” Procedure

Aiming to solve its workload problem, the Court has developed a new procedure regarding “applications
concerning similar issues, also known as ‘systemic issues’ – i.e. those that arise from non-conformity of
domestic law with the Convention”. It examines “one or more applications of this kind, whilst its examination
of a series of similar cases is adjourned (in other words, postponed).” Once a judgement is given in a so-called
“pilot case”, the Court “calls on the Government concerned to bring the domestic legislation into line with the
Convention and indicates the general measures to be taken. It will then proceed to dispose of the other similar
cases” (CoE, 2014, 10).

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Cases Declared Admissible terms of friendly settlement are not subsequently

Once an application is declared admissible, complied with.
the proceedings does not start straight-forwardly. If an acceptable settlement is not reached at, the
The Court first “places itself at the disposal of the assigned chamber proceeds to examine the merits
parties concerned with a view to securing a friendly of the case.
settlement of the matter on the basis of respect The primary object of the proceedings is to
for human rights as defined in the Convention determine whether or not there has been a violation
and the Protocols” (Article 39, ECHR). If the of the Convention and its Protocols. Before the
applicant and the respondent State reach at an proceedings start, all details of the application are
agreement, the Court strikes the case out of its list. conveyed to the government of the respondent
It is obvious that this procedure is mainly meant State for its assessment. In cases where the Court
to reduce the workload of the Court. That is why deems it necessary to make further investigation
the Court is actively involved in the confidential regarding the claims raised, all States Parties
negotiations in between the parties and facilitates -as well as the respondent State- are required to
a settlement that resolves the issue usually on provide all necessary assistance. While continuing
payment by the respondent State to the applicant the examination, the Court can also decide to take
of a specified sum of money. Bearing in mind interim measures such as requesting the respondent
that the exceptionally given admissibility decision State to refrain returning individuals to countries
strongly signifies a possible conviction at the end, where it is alleged that would face death or torture
States do usually prefer friendly settlement. For (CoE, 2014, 9).
whereas being not convicted would protect their Hearings are held “in public unless the Court in
dignity, the compensation would be paid anyway. exceptional circumstances decides otherwise” and
On the other hand, especially in cases where the “documents deposited with the Registrar shall be
applicant wants to see that the justice is done accessible to the public unless the President of the
and the respondent State is convicted, a friendly Court decides otherwise” (Article 40, ECHR). In
settlement is not easily reached at. However, the practice, most of the hearings are held in private.
applicant should not intentionally breach the According to the Rules of Court (Rule 22), once the
confidentiality of the negotiations under any hearings are conducted and the representations of
circumstances. For this “may be considered as an the parties had their say, the judges reach a decision
abuse of the right of application and result in the at the end of private deliberations that remain
application being rejected” (CoE, 2019a, 43). secret (CoE, 2019b, 10). If the Court decides by
Besides, the Court may also decline to confirm a a majority that the respondent State violated the
friendly settlement agreed on by the parties and Convention and/or its Protocols, it affords “just
“continue the examination of the application satisfaction to the injured party” (Article 41,
if respect for human rights as defined in the ECHR). In most cases, the State is ordered to pay
Convention and the Protocols thereto so requires” material and/or moral damages caused. It will also
(Article 37/1, ECHR). Likewise, it may also restore assume all costs and legal expenses, including those
the case to its list and adjourn the examination of incurred in domestic proceedings.
the applicants’ complaints if it considers that the

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important

All decisions and judgements of the Court (by a chamber or the Grand Chamber) are taken by a majority of
the judges. According to the Rules of the Court (Rule 23), a fresh vote is taken in the event of a tie and, if there
is still a tie, the President has a casting vote (CoE, 2019b, 10). All judgements should be reasoned, duly signed
by the President of the Grand Chamber and by the Registrar, and published.
Any judge is entitled to deliver his/her concurring or dissenting separate opinion on a judgement that does not
represent, in whole or in part, the unanimous opinion of the judges (Article 45, ECHR).

Judgments of Chambers shall become final unless “within a period of three months from the date of the
judgment of the Chamber” any of the parties “requests that the case be referred to the Grand Chamber”
(Articles 42 and 43/1, ECHR). It is the Grand Chamber that will consider whether there is an exceptional
case that raise “a serious question affecting the interpretation or application of the Convention or the
Protocols thereto, or a serious issue of general importance” (Article 43/2, ECHR). If considers so, it is the
Grand Chamber that will decide the case and this judgment will be the final verdict of the Court (Article
43/3 and 44/1, ECHR). Otherwise, namely in cases where none of the parties requested referral of the
case to the Grand Chamber or when the latter rejected such a request, the judgement of the Chamber will
be final (Article 44/2, ECHR).
The final judgment of the Court is binding and published. The respondent State undertakes to abide
by it (Article 46/1, ECHR).
However, it is important to note that the ECrtHR is not a court of appeal. Its verdict cannot annul
or alter the judgments of the national courts or the domestic laws and administrative practices. This
effectively means that the State in question is not legally required to conduct a retrial, unless the State
itself adopted such a legal measure. Nonetheless, the State is expected to change their national law and
make it compatible with the judgement of the ECrtHR. Most common measures required and adopted
are restoring a malpractice, reopening proceedings, revoking a life-threatening order, introducing effective
remedies, removing discriminatory rules and lifting unjustified restrictions. In any case, all States Parties are

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internationally obliged to comply in good faith with the Convention and its Protocols and thus expected
to respect and honour the human rights protection system created jointly. Therefore, acting contrary to the
judgement or disregarding it would at least be a violation of this international responsibility.
important

A State found guilty of a violation of human rights is generally under an obligation to take two kinds of
remedial measures. Whereas “individual measures” require repairing the wrong by compensating the victim,
“general measures” are intended to improve the legal situation at the domestic level so that similar violations
are not repeated in the future and further violations are prevented (Kicker, 2010, 50).

That is why the final judgment published and publicly announced is also transmitted to the Committee
of Ministers, which is charged with supervising the execution of the judgements (Article 46/2, ECHR).
The State in question, which in fact “enjoys a margin of appreciation as regards the means to be used”, must
demonstrate its planned measures in an “action plan” and submit it to the Committee of Ministers (CoE,
2019c). The Committee, which can close its supervision upon endorsing that the required measures are
taken by the State under surveillance, basically applies an international political and diplomatic pressure.
Particularly keeping the issue on the agenda and even threatening to publish a list of all pending cases
are well-known soft measures that are expected to humiliate the discordant State. The ultimate sanction
is expulsion from the CoE. According to Articles 3 and 5 of the Treaty of London, any member that
seriously violates its basic obligations to respect “the rule of law and of the enjoyment by all persons within
its jurisdiction of human rights and fundamental freedoms” may first be “suspended from its rights of
representation and requested by the Committee of Ministers to withdraw” its membership. If it “does not
comply with this request, the Committee may decide that it has ceased to be a Member of the Council as
from such date as the Committee may determine”.

important

Note that the Committee is required to take further steps before considering suspension and/or expulsion
measures. First, it may decide whether the “execution of a final judgment is hindered by a problem of
interpretation of the judgment”. If so, by “a majority vote of two-thirds of the representatives entitled to sit on
the committee”, it “may refer the matter to the Court for a ruling on the question of interpretation”. Second,
in cases where the Committee considers that a State refuses to abide by a final judgment, “it may, after serving
formal notice on that Party and by decision adopted by a majority vote of two-thirds of the representatives
entitled to sit on the committee, refer to the Court the question whether that Party has failed to fulfil its
obligation”. If the Court finds no violation, the case will be closed by the Committee. In cases where the Court
finds a violation, the Committee will consider the measures to be taken (Articles 46/3, 46/4 and 46/5, ECHR)
such as suspension and expulsion.
In short, bearing in mind that all these “legal” decisions require a majority vote of two-thirds of the “political”
representatives entitled to sit on the committee, going through such a complicated and time-consuming
process, convincing two-thirds of the members to antagonise one another and securing an expected result is
not that easy.
Greece is the only member who withdrew from the CoE in 1969 before the Committee of Ministers voted
for its suspension due to the military coup of 1967. It was readmitted in 1974 following the fall of the junta.
Turkey was suspended from the Assembly in 1981 in response to the 1980 military coup and regained its right
to vote in 1984 following the democratic elections of 1983.
Russia is another member who was suspended from the Assembly from 2000 to 2001 due to its Chechnya
policy.

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But it should be noted that the whole process the inter-State applications are usually made by the
may well be vulnerable to changes in the political States Parties in the name of protecting their own
climate, as the Committee itself is a political body citizens/rights. Obviously, this is hardly compatible
at the end of day. Expulsion, which is a last resort with the very raison d’etre of the procedure that is
sanction, is considered quite hesitantly particularly meant to collectively protect/uphold the human
by organisations that claim to be a club of like- rights of all those within the common legal space
minded States sharing common values. Accordingly, (espace juridique).
keeping intergovernmental and interparliamentary
contacts alive is also of some considerable value.
Some also argue that expulsion would be contrary to
Advisory Opinions
the very values upheld by the CoE, as many people The Court has in fact been assigned to give
residing under the jurisdiction of an expelled State advisory opinions by Protocol 2 that entered
would be deprived of the opportunity to apply to into force in 1970 and amended the ECHR.
the ECtHR (Dzehtsiarou and Coffey, 2019, 473). Accordingly, upon the request of the majority of the
representatives entitled to sit on the Committee of
The “political” realities that inevitably effect
Ministers, the Court may “give advisory opinions
“legal” decisions manifest themselves best in inter-
on legal questions concerning the interpretation of
State applications.
the Convention and the Protocols thereto” (Article
47/1, ECHR). Mostly to protect the juridical
Inter-State Applications impartiality and dignity of the Court, such
All States Parties can lodge an application in the requests “shall not deal with any question relating
Court against each other for alleged breaches of the to the content or scope of the rights or freedoms”
Convention and its Protocols (Article 33, ECHR). protected by the Convention and its Protocols or
This is a natural result of the “common values” “with any other question” that arise from any such
understanding on which the whole CoE system proceedings (Article 47/2, ECHR). Indeed, this
is based. Accordingly, protection of human rights procedure has been used on a couple of issues that
cannot merely be seen as a unilateral obligation of concern the scope of the assigned duties and powers
States owed to human beings. It is rather a common of the Committee such as those that concern the
commitment and responsibility of all State Parties election of the judges.
to collectively uphold their agreed common values Protocol 16, which entered into force in 2018 in
within the common legal space (espace juridique) respect of the States which have signed and ratified
they created collectively. it, has extended the jurisdiction of the ECrtHR. It
Any State Party that decides to bring such a specifies that the Court may give advisory opinions
case is required to file an application that clearly also in response to requests from the specified
presents its arguments based on factual findings. highest courts or tribunals of the States Parties.
The alleged violation(s) can be about any obligation These courts may request an advisory opinion “on
and/or duty envisaged in the Convention and its questions of principle relating to the interpretation
Protocols. The Court then immediately informs the or application of the rights and freedoms defined in
alleged State Party and assigns the application to the Convention or the protocols thereto” (Article
one of the Sections. A chamber that consists judges 1/1, Protocol 16). Such a request may be sought
elected in respect of the applicant and respondent “only in the context of a case pending before”
State decides whether the case is admissible. At the the highest courts or tribunals in question which
end of the proceedings where the parties submit “shall give reasons for its request and shall provide
their reciprocal written observations, the chamber the relevant legal and factual background of the
gives its final judgement on the merits of the case. pending case” (Article 1/2 and 1/3, Protocol 16).
Unsurprisingly, this procedure has been It goes without saying that advisory opinions
very rarely utilised in practice. While the parties are non-binding. The main goal of the new
reached at a friendly settlement in a couple of procedure is to give the domestic courts guidance
cases, the Court has awarded compensation (just on interpretation of the Convention and its
satisfaction) in some others. It is worth noting that Protocols that relate to a case before them. It is

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expected to “further enhance the interaction between the Court and national authorities and thereby
reinforce implementation of the Convention, in accordance with the principle of subsidiarity” (Preamble,
Protocol 16). To put it bluntly, it is apparently presumed that national courts will give decisions in line
with the advices of the ECrtHR so that an individual application would not be necessary at all.
Although it is too early to jump to a conclusion, there are legitimate concerns regarding the motivation
and consequences of this new procedure. For instance, some anticipate that this procedure introduced to
reduce the workload of the Court actually encourages States to “not to transfer the dispute concerned to the
Court”. Moreover, in such referrals, the Court is inevitably limited with “points that are directly connected
to the proceedings pending at domestic level”, which in turn also
causes a “lack of explicit engagement with the arguments submitted
by the various participants in the proceedings” (Lavrysen, 2019). In
any case, it would not be too wrong to evaluate this reform in line 2
with the political climate surrounding the Court, as some even argue Discuss the pros and cons of the
that “the liberal system on which it is based is being undermined” single-judge system.
(Dzehtsiarou and Coffey, 2019, 443).

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Familiarise with the institutional

LO 1 structure of the Council of Europe

Various human rights protection systems are developed in Europe especially in the wake of the World
War II. Although the EU is the most known European institution worldwide, it is actually the CoE that
generated the most efficient mechanism in Europe. Being regarded as the benchmark setting mechanism
of Europe even by the EU, the CoE places its 47 member States, including all EU members, under certain
international obligations. Accordingly, all States Parties to the ECHR and its Protocols are obliged not to

Summary
violate the rights and freedoms put under protection. The judicial mechanism of the CoE can be initiated
by individual applications or inter-State applications lodged at the ECrtHR or by advisory opinions
requested therefrom. The judgements of the ECrtHR are supervised by the Committee of Ministers of the
CoE. Although the ultimate sanction is expulsion from the CoE, this is not a readily decided and executed
decision. The CoE, as an international organisation of like-minded States collectively agreed to uphold
and promote their common heritage, prefers to keep all members in as much as possible.
The CoE, as all international organisations that have international legal personality, has its own authorities
and organs. The principal ones that play a role in the human rights protection mechanism are the
Secretary-General, the Committee of Ministers, the Parliamentary Assembly, the Congress of Local and
Regional Authorities of Europe, the Venice Commission and, above all, the European Court of Human
Rights-ECrtHR. The Secretary-General is elected for a term of five years by the Parliamentary Assembly
and is charged with leading and representing the Council. The main decision and policy making body of
the Council is the Committee of Ministers. Although it consists of the ministers of foreign affairs of the
member States, the Committee is routinely run by the accredited permanent diplomatic representatives
of the members based in Strasbourg. The most important task of the Committee is to supervises the
execution of the judgements of the ECrtHR. It also has the final say on a new membership.
The Parliamentary Assembly of the CoE consists of 324 members of parliament from the 47 member
States. Its members are not directly elected by the citizens of the States Parties but are rather delegations
assigned from among the national parliamentarians of member States. As a forum that holds debates on
current political developments particularly regarding human rights, the Assembly might well be quite
influential depending on the circumstances. It also elects the Secretary-General of the Council and the
judges of the ECrtHR.
The Congress of Local and Regional Authorities of Europe (“Congress of the Council of Europe”) is a
consultative body created in 1994. As a body in which all local and regional authorities of the member
states are represented, it is expected to strengthen participatory democracy and governance at local,
national and international levels. It prepares reports and adopts recommendations to that end. Recently, it
has been focusing on contemporary issues such as promoting gender equality, local democracy, governance
and preventing corruption and radicalisation.
The Venice Commission, as a semi-autonomous structure of the Council, is an advisory body of the CoE
on constitutional matters. It is composed of 62 assigned members acting in their individual capacity
including scholars, judges and the like from member states as well as other 15 States. The Commission
mainly works on democratic institutions and fundamental rights, constitutional justice and ordinary
justice, elections, referendums and political parties. It is expected to provide members with legal advice
and even “emergency constitutional aid” in bringing their administration into line with adopted standards
and best practices.
The European Court of Human Rights is undoubtedly the most important organ of the CoE in terms of
human rights protection.

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Describe and evaluate the

LO 2 competence of the European
Court of Human Rights.

The ECrtHR is originally set up in 1959. It has started operating as a full-time permanent court based in
Strasbourg in 1998 to which individuals can apply directly and seek the legal remedies provided by the
Council. The ECrtHR basically hears and decides on three types of applications. Individual applications
and inter-State applications are conducted in order to judge whether a State Party has violated one or
more of the rights set out in the ECHR and its Protocols. Advisory opinions, on the other hand, are
Summary

designed to offer legal assistance to the Committee of Ministers and highest courts of the States Parties.
The judgements of the ECrtHR is final and supervised by the Committee of Ministers of the CoE. The
State found in violation of the ECHR and/or its Protocols is ordered to repair the wrong by compensating
the victim (“individual measures”) and/or to improve the legal situation at the domestic level so that
similar violations are not repeated in the future and further violations are prevented (“general measures”).
The execution of the judgements are supervised by the Committee of Ministers, which holds to power
even to expel the State in question.

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Human Rights

1 Which of the following has established the 6 Which of the following gives the admissibility
Council of Europe?? decision at first instance??
A. Treaty of Strasburg A. The single-judge formation
B. Treaty of London B. Grand Chamber

Test Yourself
C. Treaty of Brussels C. Plenary Chamber
D. Treaty of Paris D. The Committee of Ministers
E. Treaty of Lisbon E. The Venice Commission

2 Which of the following is not an organ of the 7 Which of the following is the name given to
Council of Europe?? cases that concern similar “systemic” issues??
A. The Committee of Ministers A. Peer-review Case
B. Parliamentary Assembly B. Pilot Case
C. The Congress of Local and Regional Authorities C. Sample Case
of Europe D. Final Case
D. The European Court of Human Rights E. Precedent Case
E. The European Court of Justice
8 Which of the following principles is not
3 Which of the following elects the judges of adopted by the European Court of Human
the European Court of Human Rights?? Rights??
A. The Committee of Ministers A. Ratione materiae
B. The Court itself B. Ratione temporis
C. Parliamentary Assembly C. Ratione juridique
D. The Venice Commission D. Ratione personae
E. The Congress of Local and Regional Authorities E. Ratione loci
of Europe
9 Which of the following is introduced by
4 Which of the following supervises the Protocol 14??
judgements of the European Court of Human A. Single-judge formation
Rights?? B. Chamber
A. The Committee of Ministers C. Plenary Chamber
B. The Court itself D. Grand Chamber
C. Parliamentary Assembly E. Three-judge committee
D. The Venice Commission
E. The Congress of Local and Regional Authorities 10 When does the “sixth-month rule” start
of Europe under normal circumstances??
A. At the date of the alleged violation
5 Which of the following is not amongst the B. The first monday following the national
types of applications that can be lodged at the judgement
European Court of Human Rights??
C. After the application is declared admissible
A. Applications lodged by individuals D. With the decision of the highest competent
B. Inter-State applications by States Parties national court or authority
C. Advisory opinions lodged by the Committee of E. Following the failure of a friendly settlement
Ministers
D. Advisory opinions lodged by the highest courts
and tribunals of the States Parties
E. Applications lodged by the European Union

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 European Human Rights Protection System:
The Council of Europe and The European Court of Human Rights

1. B If your answer is wrong, please review the 6. A If your answer is wrong, please review the
“The Council of Europe” section. “European Court of Human Rights” section.
Answer Key for “Test Yourself”

2. E If your answer is wrong, please review the 7. B If your answer is wrong, please review the
“The Council of Europe” section. “European Court of Human Rights” section.

3. C If your answer is wrong, please review the 8. C If your answer is wrong, please review the
“The Council of Europe” section. “European Court of Human Rights” section.

4. A If your answer is wrong, please review the 9. A If your answer is wrong, please review the
“The Council of Europe” section. “European Court of Human Rights” section.

5. E If your answer is wrong, please review the 10. D If your answer is wrong, please review the
“European Court of Human Rights” section. “European Court of Human Rights” section.

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Human Rights

Both the EU and the CoE indicates that “any European State” can
become their respective members provided that other criteria are
also met. However, whereas the EU now and then discusses even

Suggested Answers for “Your Turn”

whether Turkey is on the continent, the CoE has full members
from Russia to Caucasian States, not to mention Kazakhstan,
whose membership ambition is turned down not on geographic
grounds but due to its poor human rights record. Elaborate on
the possible reasons why the two interpret an identical quasi-
geographic criterion in different ways.

Both the EU and the CoE indicates that “any European State” can become
their respective members provided that other criteria are also met. However,
whereas the EU now and then discusses even whether Turkey is on the
continent, the CoE has full members from Russia to Caucasian States, not
to mention Kazakhstan, whose membership ambition is turned down not on
geographic grounds but due to its poor human rights record. Elaborate on the
possible reasons why the two interpret an identical quasi-geographic criterion
in different ways.
This difference of interpretation mostly arises from the founding principles,
purpose and goals respectively adopted by the two organisation. The EU, as a
your turn 1 supranational organisation, seeks to construct an as homogeneous as possible
union that may even evolve into a (con)federation of States. On the other
hand, the CoE is an intergovernmental organisation that seeks to take as
much State as possible on board. So, although the criteria concerning respect
to human rights and fundamental principles are also identical, the EU gives
precedence to building a holistic socio-economic and political entity whereas
the CoE purposes to spread its values as much as possible. This is particularly
seen in cases where the CoE self-assuredly underlines its accomplishments
such as eradicating death penalty in the wider Europe. It may also be said that
both in fact interpret the said criterion in line with their respective aims, goals
and objectives, that is to say in political, not purely geographical, terms.

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 European Human Rights Protection System:
The Council of Europe and The European Court of Human Rights

Discuss the pros and cons of the single-judge

system.
Suggested Answers for “Your Turn”

Single-judge formations were introduced by Protocol 14 that has entered into

force in 2010 to reduce the workload of the Court. The main task of these
formations is to function as a sort of first instance court that primarily gives
the admissibility decisions. Such decisions used to be given unanimously by
a three-judge committee up until 2010. Accordingly, even in cases where
only one of the three judges had seen some merits in the application unlike
the other two, the application was declared admissible. Thus the Court was
ensuring all that even a slight probability of abuse was taken seriously.
Protocol 14 has made a dramatic change in the whole admissibility procedure.
The applications are now being examined by a single-judge formation that
can declare a case inadmissible or strike it out of the Court’s list of cases.
Furthermore, the single-judge gives this final judgement of the Court
according to a new set of criteria determined in a way that guarantees the
long-term efficiency of the Court by optimising the filtering and processing of
applications. According to these complicated and even controversial filtering
criteria, the single-judge may declare inadmissible the applications that are
considered to be “manifestly ill-founded” or where the applicant has not
suffered a “significant disadvantage”. It is true that the Protocol underlines
your turn 2 the Court’s commitment to respect for human rights. Besides, the Court
may also be also right in emphasising that it does not have the resources to
examine trivial or repeated complaints which have no substance and which
are not the kind of cases an international supervisory body should be looking
into. However, such problems have nothing to do with individuals who are
originally given the right to seek legal remedies. The ECHR system might
arguably have come up with a solution that sorts procedural problems
out and ease the workload of the Court and yet protect the rights of the
potential applicants. However, it is not a heavy penal court. So, right from
the very beginning, it has a responsibility and even duty to hear cases lodged
by individuals that claim that a State Party has violated one or more of his/
her rights put under protection by the ECHR and its Protocols. Likewise,
legitimately rejecting applications that obviously constitute an abuse of
the right is quite different from determining ambiguous, complicated and
even subjectively discretionary criteria that effectively discourages and even
precludes most applications.
In short, although the single-judge system has apparently reduced the
workload of the Court and discouraged applications that clearly abuse the
right of petition, the filtering system seems incompatible with the original
idea underlying the ECHR system.

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Human Rights

References
CoE. (2010). Procedure for Electing Judges to the -Dzehtsiarou, K. and Coffey, D. K. (2019). Suspension
European Court of Human Rights, Information and Expulsion of Members of the Council of
Document Prepared by the Secretariat, 11 October Europe: Difficult Decisions in Troubled Times.
2010. Retrieved from www.assembly.coe.int/ International & Comparative Law Quarterly,
CommitteeDocs/2010/20100504_ajdoc12rev.pdf 68(2), 443-476.
CoE. (2014). “The ECHR in 50 Questions” Information -Kicker, R. (2010). The Council of Europe: Pioneer
Document by the Council of Europe. Retrieved from and Guarantor for Human Rights and Democracy.
www.echr.coe.int Strasburg: Council of Europe Publishing.
CoE (2019). “Practical Guide on Admissibility -Larsen, K. M. (2012). The Argument of Non-
Criteria”, Guide Prepared by the Directorate of the Applicability Ratione Loci. In The Human Rights
Jurisconsult. Retrieved from www.echr.coe.int Treaty Obligations of Peacekeepers (pp. 165-240).
Cambridge: Cambridge University Press.
-CoE. (2018). Notes for Filling in the Application Form.
Retrieved from www.echr.coe.int/Documents/ -Lavrysen, L. (2019). “The Mountain Gave Birth
Application_Notes_ENG.pdf to a Mouse: the First Advisory Opinion under
Protocol No. 16”, 24 April 2019. retrieved from
-CoE (2019b). “Rules of Court”, Registry of the Court.
www.strasbourgobservers.com/2019/04/24/
Retrieved from www.echr.coe.int
the-mountain-gave-birth-to-a-mouse-the-first-
-CoE. (2019c). “The supervision process” Information advisory-opinion-under-protocol-no-16/
Document by the Department for the Execution of
Judgments of the Court. Retrieved from www.coe.
int/en/web/execution/the-supervision-process

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 Theoretical and Practical
Chapter 8 Objections to Human Rights
After completing this chapter, you will be able:
Learning Outcomes

1 Identify the challenges to the idea of human

rights 2 Explain the main conceptual critiques to the
idea of human rights

3 Describe the main practical objections to

human rights 4 Evaluate the objections to human rights

Chapter Outline
Human Rights
Conceptual Critiques
Practical Critiques
Key Terms
Introduction
Critique of Human Nature
The Challenges to the Idea of Human Rights
Critique of Humanitarianism
Theoretical Objections to the Idea of Human Rights
Objections to Universality
Practical Objections to Human Rights
Critique of Abstractness and Individualism
An Evaluation of the Objections
Critique of Cultural Relativism
The Gap between Theory and Practice of Human
Rights

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Human Rights

INTRODUCTION
The Triumph and Failure of Human Rights
“The rhetoric of human rights seems to have triumphed because it can be adopted by left and right, the north
and the south, the state and the pulpit, the minister and the rebel. This is the characteristic that makes them
the only ideology in town, the ideology after the end of ideologies, the ideology at the end of history. But this
‘broad church’ allure of rights is also their weakness. It was argued above that natural and, later, human
rights were conceived as a defence against the domination of power
and the arrogance and oppression of wealth. After their institutional
inauguration, they were hijacked by governments that understood the
benefits of a moral-sounding policy. This trend has now moved to its
final stage. Human rights are the way people speak about the world
and their aspirations, the expression of what is universally good in
life. They have become ingrained in the new world order, their claims
adopted, absorbed and reflexively insured against challenge. Assent
and critique, approbation and censure are part of the same game, both
contributing to the endless proliferation and to the colonialism of rights.
Human rights have become the credo of the middle classes. In this
sense, the greatest achievement of rights discourse is not that it narrows
the distance between East and West, left and right or the rich and the
poor, but that it has imposed the ideology of the rich on the poor. Yet,
paradoxically, a residue of transcendence remains. Every time a poor,
oppressed, tortured person uses the language of rights – because no other Figure 8.1 Costas Douzinas
is currently available – to protest, resist, fight, she draws from and Source: http://www.assembly.
connects with the most honourable metaphysics, morality and politics of coe.int/nw/xml/AssemblyList/MP-
the Western world. Human rights have only paradoxes to offer”. Details-EN.asp?MemberID=7546

(Douzinas, “The End of Human Rights?”, Human Rights and Empire, The Political Philosophy of
Cosmopolitanism, 33.)
The idea of human rights, as a kind of universal
moral rights that belong equally to all human beings important
only in virtue of being human, has been one of the
prominent ideas in the second half of the 20th Century. We stand today at the threshold of a great
Universal Declaration of Human Rights (UDHR) adopted event both in the life of the United Nations
by the United Nations General Assembly in 1948 have and in the life of mankind, that is, the
constituted a milestone in the history of human rights and approval by the General Assembly of the
followed by many declarations and covenants drafted and Universal Declaration of Human Rights. This
adopted by the UN, two of them used to be called as twin declaration may well become the international
covenants International Covenant on Civil and Political Magna Carta of all men everywhere. We hope
Rights (ICCPR) and International Covenant on Economic, its proclamation by the General Assembly will
Social, and Cultural Rights (ICESCR) with UDHR have be an event comparable to the proclamation
determined the international and national human rights of the Declaration of the Rights of Man by
practice more than others. Considered as “one of the great the French people in 1789, the adoption of
civilizing achievements of the modern are” (Gearty, 2006, the Bill of Rights by the people of the United
1), today the idea of human rights plays a central role both States, and the adoption of comparable
in international law and in the domestic law of nation declarations at different times in other
states. “In the developing world, ratifying international countries. (Eleanor Roosevelt, 1948)
human rights covenants has become a condition of
entry for new states joining the family of nations. Even

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 Theoretical and Practical Objections to Human Rights

oppressive states feel obliged to engage in rhetorical Raising an objection to the assumption that
deference toward human rights instruments” “human rights represents a step forward in the
(Ignatieff, 2003, 6-7). In addition, human rights progress of human development … and human
are considered to be an ideal standard every human rights are universal” Kapur challenges the atomized
community should try to reach. If the level of a and insular liberal subject on which the human
political democracy falls under this threshold rights project is based (Kapur, 2006, 667).
or human rights of all people equally cannot be
secured, this country or state may be condemned
being uncivil or oppressive. In other words, a state
that secures to all of its citizens a life which does
not fall this threshold is regarded to be a modern
political democracy or a modern state.

THE CHALLENGES TO THE IDEA

OF HUMAN RIGHTS
Even though it has been labeled as the “most
significant achievement of our century” (Kuçuradi,
1995, 3) and “a worldwide secular religion”
(Wiesel, 1993, 3), the idea of human rights faces
today various challenges that pose a threat for its
future. These are the critiques directed to both
the idea itself and its practice. Although the idea
of human rights is supposed to be very clear and
definite, challenges directed to the idea of human
rights displays that we have a fairly indeterminate
concept of human rights. Some experiencing Figure 8.2 Who Believes in Human Rights?:
different conceptions in the contemporary human Reflections on the European Convention
rights discourse tend to talk of “concepts of human
Source: https://www.amazon.co.uk/Who-Believes-
rights”, instead of the concept of human rights.
Human-Rights-Reflections/dp/0521683076
Some others indicate a risk that the idea will be
destroyed forever, at best subverted out of all
present recognition (Geary, 2006, 1). Though the objections of Dembour and Kapur
Conceptual objections are mostly directed either portrait the conjuncture well, but do not cover
to the vagueness and abstractness of the concept all the critiques of human rights. “A different but
of human rights, and of human nature on which complementary argument is developed by Alasdair
the idea of human rights supposed to be to rest, Macintyre in After Virtue, when discussing the idea
and of the claim of universality. Dembour tries to of human rights. According to him, not only are
summarize these in the following three propositions there no human rights, the notion of a right itself
which represents the main line of the conceptual is not found in every society. After pointing out
critiques, “(1) the concept of human rights is that claims to the possession of rights presuppose
wrongly presented as universal; (2) it pertains of the existence of a set of socially established rules, he
a logic which focuses on the individual to the goes on, ‘Such sets of rules only come into existence
neglect of solidarity and other social values; (3) it at particular historical periods and in particular
derives from a reasoning which is far too abstract” social circumstances. They are in no way universal
(Dembour, 2006, 6). These three objections of features of the human condition’” (Milne, 1993,
human rights, namely the critiques of universality, 4). Consequently, he comes to the idea that “‘It
of abstractness and of neglecting solidarity and other would of course be a little odd that there should be
social values consist of the main critiques of human such rights attaching to human beings simply qua
rights that will be elaborated in this chapter. human beings ... .’Referring to the same linguistic

194
Human Rights

facts, he then comments, ‘From this of course it the foundational critiques of rights. Later critics
does not follow that there are no natural or human have developed and expanded their main points in
rights, it only follows that no one could have known a number of directions but have not added much
that there were ... .’ He concludes that there are new” (Douzinas, 2000, 147).
no such rights’, adding that ‘Every attempt to give
important
good reasons for believing that there are such rights
has failed.’ His verdict is that ‘Natural or human
rights are fictions’, and that ‘belief in them is at one The objections to the idea of human rights
with belief in witches and unicorns’” (Milne, 1993, are as old as the idea itself.
5; MacIntyre, 1981, 67).
Some objections have based on the practical According to Burke, rights discourse of his
failures or the huge gap between theory and practice century suffers from metaphysical idealism and
of human rights movement, and questioned the rationalism. The proponents of rights follow a
idea of human rights itself, and have become clumsy metaphysical theory; they are metaphysical
cynical about the future of it. Some others have rationalists or “speculatists”, the worst insult
criticized human rights movement becoming a tool in Burke’s rich vocabulary of abuse. For Burke,
of government diverging from its revolutionary therefore, the standpoint of the absolute and
core. Furthermore, Douzinas accuses governments universal discourse seems to blind the politicians
of hijacking human rights to legalize their abusive to the realities of the particular and concrete and
practices. turns them into metaphysicians and prophets
(Douzinas, 2000, 148-151).
Jeremy Bentham, regarded as a realist and
utilitarian philosopher, put his reaction to the 1789
1 French Declaration with the phrase ‘From real law
What would you think about the critiques of come real rights; but from imaginary laws . . . come
human rights? Do these critiques target mainly imaginary rights.’ Bentham wrote an essay titled
the idea of human rights itself or only to their “Anarchical Fallacies,” in which he attacked the
practice? most popular manifesto of such rights in his day,
the “Declaration of the Rights of Man and Citizen”.
He claimed that any doctrine of natural rights is
THEORETICAL OBJECTIONS TO “simple nonsense, natural and imprescriptible
THE IDEA OF HUMAN RIGHTS rights, rhetorical nonsense,—nonsense upon stilts”
(Bedeau, 2000, 263).
The critiques of the idea of human rights are
as old as the idea itself. “Misgivings about rights important
are not a new phenomenon. Just as the theories
of natural rights and of the rights of man that “From real law come real rights; but from
developed in the seventeenth and eighteenth imaginary laws . . . come imaginary rights”
centuries are the ancestors of the modern idea of (J. Bentham).
human rights, so the critiques of those theories that
appeared in that period are the starting-point of
modern misgivings about the direction this idea The first Marxist critique of human rights as a
is taking us in our moral and political thinking” response to the French Declaration was given by
(Waldron, 1987, 2). Some of these misgivings Karl Marx in 1843, in his essay ‘On the Jewish
framed by E. Burke, Bentham and Marx are as old Question’. Marx’s critique of human rights rests on
as the idea itself, but some are relatively new as the the belief that the man of human rights is abstract.
critiques of cultural relativism and postmodernity. Rights idealise and support an inhuman social
“If the eighteenth century declarations are the order, underpinned by the abstract man of the
foundation of the discourse of rights, Burke’s and declarations and, they turn real people into abstract
Marx’s reflections on the French Revolution are ciphers. The subject of human rights loses its
concrete identity, with its class, gender and ethnic

195
 Theoretical and Practical Objections to Human Rights

characteristics; all real human determinations are The new objections to human rights are more
sacrificed on the altar of the abstract man lacking radical and harsh, but mostly directed to the
history and context. But at the same time, this failure of human rights movement and the gap
abstract man stands in for a real person and his between the idea of human rights and its practice
rights support someone replete of substance. The more than the idea itself. Though some critiques
emancipation of the unreal man, subjects real originate from postmodern thinkers who consider
people to a very concrete rule, “the rights of man as a transformation from grant narratives to small
distinct from the rights of the citizen are nothing, narratives, from human rights to the rights of
but the rights of the member of bourgeois society, children, to the rights of immigrants necessary
i.e. egoistic man, man separated from other man and unavoidable; the others esteeming the idea of
and the community” (Douzinas, 2000, 159). human rights in itself criticize the practice of human
rights which seems them far from securing human
rights to all members of the world community,
referring especially the huge gap between the idea
of human rights and its practice.

book
j. Waldron, (ed.)(1987), ‘Nonsense upon
Stilts’, Bentham, Burke and Marx on the
Rights of Man

On the other hand, the concept of “the right to

have rights” introduced by H. Arendt triggered a
chain of challenges to human rights as we observe
in the accounts of scholars as Balibar, Agamben,
Douzinas, Dembour and Rancière. Samuel Moyn
decided to label human rights as The Last Utopia.
Even though all of those scholars are partly
Figure 8.3 Nonsense upon Stilts (Routledge Revivals): sympathetic to the idea of human rights in principle
Bentham, Burke and Marx on the Rights of Man and believe still its potential in creating a more
Source: https://www.amazon.com/Nonsense-upon- human world, some argue that it has deviated its
Stilts-Routledge-Revivals-ebook/dp/B00O68ALVK initial revolutionary discourse; and today “human
rights have been turned from a discourse of
rebellion and dissent into that of state legitimacy”
Waldron tackles three old critiques of human (Douzinas, 2000, 7). M. Ignatieff identifies the
rights from Conservative, Liberal and Marxist crisis that human rights face today as a spiritual
point of view, i.e. the views of Jeremy Bentham, and cultural crisis related to both ‘intercultural
Edmund Burke and Karl Marx and indicates both validity of human rights norms’ and ‘the ultimate
the diversity and common points of these three metaphysical grounding for these norms’ (Pedersen
critiques in his work ‘Nonsense Upon Stilts’ Bentham, and Murray, 2012, 6). Many believe that human
Burke and Marx on the Rights of Man. In spite of rights are in crisis in the beginning of 21th Century
their diversity they all attack the idea of human and the idea of human rights either will face an
rights for what they call ‘abstraction’, they all three end or have to undergo some transformations to
critiques focus on the issue of individuality versus survive.
community, and they all claim that the rights of
man involve a radically impoverished view of the
constitution of human society (Waldron, 1987, 3).

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Human Rights

nothing was put in its place. The term was left

with so few criteria for determining when it is used
correct, and when incorrectly, that we often have
only a tenuous, and sometimes a plainly inadequate,
grasp on what is at issue. Its indeterminateness of
sense is not something characteristic of ethical
terms in general; it is a problem specifically, though
perhaps not uniquely, with the term ‘human right’.
We today need to remedy its indeterminateness;
we need to complete the incomplete notion, and
thereby most likely change it” (Griffin, 2008, 2).

important

The most appropriate document to look at

to find these intentions is the first drafted
one, the Universal Declaration, which is an
ethical document par excellence, up to now
probably the best elaborated document of
human rights we possess, or, to use a term
Figure 8.4 The Last Utopia: Human Rights in History from present-day philosophy of language,
Source: https://www.amazon.es/Last-Utopia-Human-
the most carefully performed speech act
Rights-History/dp/0674048725
of the world community Kuçuradi (1995,
5). In spite of its “being the best elaborated
important document” Universal Declaration has been
targeted because the concept of human rights
is not sufficiently clarified.
Some scholars believe that human rights are
in crisis in the beginning of 21th Century and
the idea of human rights either will face an
end or have to undergo some transformations
to survive

Critiques of the Concept of Human

Rights
“There is a continuous, developing notion of
human rights running through this history—call
it the ‘historical notion’. That is the notion with
which I want to start. Start, but most likely not
finish. I am looking for the notion of human rights
that fits into the best ethics that we can establish,
and it is unlikely that the notion that history has
yielded is already in perfect form for its place in
ethics. One of the first things that one notices
about the historical notion is that it suffers from
Figure 8.5 Human Rights: Concepts and Problems
no small indeterminateness of sense. When during
Source: https://www.amazon.com/Human-Rights-
the seventeenth and eighteenth centuries the
International-internationalen-Abhandlungen/
theological content of the idea was abandoned,
dp/3643903081

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 Theoretical and Practical Objections to Human Rights

When we talk on human rights or we criticize Furthermore, the concept of rights and its
human rights today, although we articulate the same difference from human rights have never been clear.
word, we do not refer to the same idea or concept. That what makes human rights distinct and special
The word “human rights” is stated sometimes to refer has not been tackled adequately supposing merely
to the human rights movement, sometimes to the human rights a subclass of moral rights. Human
human rights law, sometimes to the idea of human rights that we have simply in virtue of being human
rights, sometimes to the international human rights have to be distinguished from rights that derive
documents, sometimes to the non-governmental from some accomplishment or transaction of the
human rights organizations. “As Catholic philosopher right holder, a special relationship to which they
Jacques Maritain observed in his Man and the State, belong, or their involvement in some particular
we agree on the rights, providing we are not asked social or institutional order. That the existence and
why. With the ‘why’, the dispute begins” (Douzinas content of human rights—including, specifically,
and Gearty, 2014, 2). This ambiguity or polysemy what the salient understanding of “humanity”
of the concept of human rights can be traced also in is in virtue of which we possess them—is to be
the different critiques of human rights. Though they determined primarily through ordinary or “natural”
all criticize human rights, the points which they are moral reasoning (Tasioulas, 2010, 650). But with
targeting in their critiques are different due to their the “proliferation” of human rights any colourable
varying conceptions of human rights. universal human interest or value is becoming a
candidate for the title of human rights. Moreover,
this tendency is regarded a threat for human rights
discourse rendering it redundant, because of having
already a serviceable language for speaking interest
book
Douzinas, C., and Gearty C. (eds.) (2014), or values (Tasioulas, 2010, 651).
The Meanings of Rights. The Philosophy Taking a look at any international human
and Social Theory of Human Rights. rights document will show that a list of human
rights varies from life and liberty to a long and
open-ended rights catalogue. “Human rights mean
“Human rights are used as a symbol or synonym different things to different people. People easily elevate
for liberalism, capitalism or individualism by what they want into a human right, while they label
some and for development, social justice and/or what they dislike as a human rights violation. Even
peace by others. In the South, rights are seen as those who claim to be using ‘objective’ criteria find it
primarily collective rather than individual, social easier to write about what human rights should be
and economic rather than civil, associated with than describe them as they are. This involves entering
equality rather than with liberty. In the North, they the ‘swampy lowland of messy and confusing problems’
can reflect commitments to solidarity and social and the process of law-making is therefore rarely
justice as well as to political freedom – but they have studied” (Tomaševski 1995, 59).
also been used to underpin invasion and military
brutality” (Douzinas and Gearty, 2014, 1). We may
oppose Douzinas, thinking that human rights are
not so different and controversial in the South and internet
North, but if you look into the phrases of people in You can read the Declaration at https,//www.
which the word human rights take part, we will see un.org/en/universal-declaration-human-rights/
these different and controversial uses of the word.
important
The ambiguity of the concept of human rights
“Human rights are used as a symbol or synonym partly results from taking the concept in the
for liberalism, capitalism or individualism by international human rights instruments for granted
some and for development, social justice and/or and crystal clear. The concept of human rights
peace by others” (Douzinas and Gearty, 2014, 1) in these documents, especially in the Universal
Declaration of Human Rights, has been taken

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Human Rights

furthermore a criterion in deciding which rights endless debate both on the concept and the criterion
will be counted in human rights. However, “it is of human rights. To settle this confusion we need
tempting, and apparently uncontroversial, to take to clarify the content or meaning of the concept of
explicit, formally adopted international statements human rights at first, and then to pick out the idea of
on human rights for granted. International human human rights embodied in these documents. “How
rights instruments are, however, the final stage in may we remedy the indeterminateness? Although
a long and protracted process. A formally adopted the theological content of the term was abandoned,
text may seem clear (although this is not necessarily the ethical content was not. From time to time in
the case) on what it says, but not on what that the course of the history one encounters the idea
means” (Tomaševski, 1995, 59) that human rights are protections of our human
status and that the human status in question is our
important rational or, more specifically, normative agency”
(Griffin, 2008, 2).
“In Western postmodern societies, the phrase ‘I But some scholars like Douzinas and Gearty
have a right to X’ is used interchangeably with are not deeply concerned with the ambiguity of
the expressions ‘I desire or want X’ or ‘X should the concept of human rights believing the fact
be given to me’. This linguistic inflation weakens that the ideological power of human rights comes
the association of human rights claims with from its ambiguity, from the oscillation between
significant human goods and undermines their real and ideal, is and ought, community and
position as central principles of political and humanity (Douzinas and Gearty, 2014, 3-4). But
legal organisation. It indicates that the public the ambiguity and the inflation of human rights
recognition and satisfaction of individual desire resulted from this indefiniteness impoverish the
have become major ways for the subjective, idea of human right. “In Western postmodern
economic and ideological organisation of late societies, the phrase ‘I have a right to X’ is used
capitalist societies” (Douzinas, 2007, 12) interchangeably with the expressions ‘I desire
or want X’ or ‘X should be given to me’. This
linguistic inflation weakens the association of
We can easily notice that the different human rights claims with significant human goods
conceptions of human rights are available in and undermines their position as central principles
the various documents of human rights. Even of political and legal organisation. It indicates
the concept of human rights in the Universal that the public recognition and satisfaction of
Declaration of Human Rights differs in some respect individual desire have become major ways for the
from the concept of human rights in the twin subjective, economic and ideological organisation
Covenants of UN. Human rights in the Universal of late capitalist societies” (Douzinas, 2007, 12).
Declaration are conceived of mainly as principles of
action, concerning how human beings should treat
others, whereas human rights in the Covenants
Critiques of the Concept of Human
are considered basic ethical principles for social Nature
organization and state, which takes community or If the adjective ‘human’ is taken seriously, the
people as its subject. idea of human rights must be the idea that there
The questions what is the idea of human rights are certain rights which, whether or not they are
and which rights are supposed to be human rights recognised, belong to all human beings at all times
may be answered only after that the meaning of the and in all places (Milne, 1993, 1). Some theories
term human rights is clarified. Taking a glance at of human rights argue that any concept of human
human rights literature or theories will show that rights has to rest upon a concept of human nature
the different concepts of human rights are in use. from which it is derived by different ways of
Not a single concept of human rights, but various reasoning. This ground for human rights has been
concepts of human rights are presented in different named as human nature or human being. “Legal
theories of human rights. Failing to differentiate rights have the law as their source. Contracts create
these concepts of human rights has given rise to an contractual rights. Human rights would appear

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 Theoretical and Practical Objections to Human Rights

to have humanity—“human nature”—as their twilight of reason, Adorno and Horkheimer’s despair
source” (Donnelly, 2013, 13). Donnelly suppose in the Dialectics of the Enlightenment and Foucault’s
that “the source of human rights is man’s moral statement that modern “man” was a mere drawing
nature, which is only loosely linked to scientifically on the sands of the ocean of history about to be
ascertainable needs and not adequately captured swept away, appear more realistic than Fukuyama’s
by the idea of human capabilities. The ‘human triumphalism”(Douzinas, 2000, 6). Announcing
nature’ that grounds human rights is a prescriptive the ‘death of man’ has caused the critiques to the
moral account of human possibility. (Needs and concepts of human nature and of human being.
capabilities are typically understood as descriptive). To talk on human nature or human being has been
The scientist’s human nature says that beyond condemned to be abstract and nonsense. And “the
this we cannot go. The moral nature that ground announcement of the “death of man” has been
human rights says that beneath this we must not accompanied by the most protracted campaign to
permit ourselves to fall” (Donnelly, 2013, 15). re-claim the individual, as the triumphant center of
Some others strictly go against to talk about our postmodern world and to declare freedom, in
human nature or human being taking a cultural the form of autonomy or self-determination, as the
relativist or postmodern point of view. Though organizing ideal of our legal and political systems”
the first article of the Universal Declaration of (Douzinas, 2000, 17).
Human Rights includes a concept of human These arguments about human nature
nature or human being, i.e. “endowed with reason demonstrates the urgent need for tackling the
and conscience”, the idea of human rights have question “is a notion of human nature or of the
been severely criticized because of resting upon human being necessary for a concept of human
a concept of human being that is supposed to rights and a justification of human rights?”.
be a metaphysical and abstract concept. “All of While philosophers like M. Foucault remind us
the critiques are, finally, dissatisfied with the fact that talking about human nature is nonsense, M.
that the concept of human rights derives from an Nussbaum and I. Kuçuradi consider a concept of
excessively abstract definition of man” (Dembour, human necessary for human rights. Claiming that
2006, 7). The claim of abstractness of the notion a concept of human rights must be based on a
of human beings leads some human rights scholars concept of human being, they put forth a concept
claiming to dispense with a concept of man totally. of man “for a justification of human rights, but
“The first charge against the universal validity of abstaining to use the term “human nature” (Tepe,
human rights falls under the umbrella term ‘cultural 2014, 66-67). These two accounts of human rights,
relativism.’ As a variant of ethical relativism, cultural i.e. the capability approach of M. Nussbaum
relativism denies the possibility of truth in ethics and the ontological anthropological approach of
by relativizing all moral judgments about social Kuçuradi, conceive man as a creature of possibilities
behavior to each culture’s prevailing beliefs about or capabilities besides some actual characteristics.
them” (Kao, 2011, 11). Cultural relativists claim They believe that this account of man seems to
that every person lives in a specific culture and each avoid the charge of being metaphysical or abstract,
culture possesses its own values and principles of and may be taken as a basis for human rights.
conduct, therefore it would be nonsense to speak of In fact, “The capabilities approach is not a
universal values or principles and of human nature theory of what human nature is, and it does not
valid for all cultures. “In postmodernity, the idea read norms off from innate nature. Instead, it
of history as a single unified process which moves is evaluative and ethical from the start, it asks,
towards the aim of human liberation is no longer among the many things that human beings might
credible, and the discourse of rights has lost its develop the capacity to do, which ones are the
earlier coherence and universalism. The widespread really valuable ones, which are the ones that a
popular cynicism about the claims of governments minimally just society will endeavor to nurture
and international organizations about human rights and support? An account of human nature tells us
was shared by some of the greatest political and legal what resources and possibilities we have and what
philosophers of the twentieth century. Nietzsche’s our difficulties may be. It does not tell us what to
melancholic diagnosis that we have entered the value” (Nussbaum, 2011, 28).

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Although Nussbaum underlines the difference of the

capabilities approach from other accounts of human nature, she
also speaks of a concept of human being. “Human beings come
into the world with the equipment for many ‘doing and being’
(...) and we have to ask ourselves which ones are worth developing
into mature capabilities” (Nussbaum, 2011, 28). Furthermore,
the capabilities approach tries to specify which capabilities are
worth to be developed. Thereby, it includes a dimension of
value that is not necessarily inherent in every conception of
human being. “The capability approach helps to clarify what it
actually means to secure a human right to someone, correctly
acknowledges the unavoidability of presupposing a conception
of the good for human beings in the process, and properly
situates human rights claims alongside of the moral entitlements
that nonhuman animals might be said to have” (Kao, 2011, 8).
Besides this capability approach, the ontological and
anthropological approach represented by Mengüşoğlu and
Kuçuradi also put forward a basis for grounding human
rights indicating the human phenomena as properties and Figure 8.6 The Idea and The Documents Of
potentialities of man. The activities proper to man and the Human Rights
products of these activities, as properties and potentialities, Source: http://www.tfk.org.tr/tr/yayinlar
constitute the “nature” of man. Kuçuradi considers human
rights as norms derived from the knowledge of the value of these characteristics and potentialities. These
norms present also the conditions considered necessary for the humankind to fulfill its potentialities
special only to the human species (Kuçuradi, 1995, 81). To put into practice these potentialities of man
we need the systematic knowledge of potentialities and conditions of a human being wherewith we can
create a concept and criteria human rights.

Critique of Humanism
The idea of human rights has sometimes been condemned to be a humanistic ideology that considers
human being one and only valuable creature in the world. This account of value of human rests on a
conception of man put forth by Immanuel Kant which considers man as a living creature belong to
both the world of nature and of reason. And the capacity to act according to the law of morality that
differentiates humans from other creatures, and constitutes also the ground of the value or dignity of man.
This led Kant to state that only human being has value, meanwhile others than humans have only prices.
Since human rights are principles or norms that aim to protect the value or dignity of man, the value of
man constitutes the basis of human rights and also the main motive of the charge of humanism.
“In that period, the highly influential thought of Marx, Nietzsche and Freud and their followers, the
great philosophers of ‘suspicion’ according to Paul Ricoeur, successfully challenged the assumptions of
liberal humanism, ‘the philosophy of the progressive realisation of the whole man throughout history’ ...
Humanism explores what is right according to human nature, in its natural dignity or scientific objectivity
and turns ‘man’ into the end of historical evolution, the standard of right reason and the principle of
political and social institutions. According to humanism, humanity has two unique characteristics, it can
determine its own destiny and, secondly, it is fully conscious of itself transparent to itself through self-
observation and reflection. Both premises were seriously undermined by the great critics of modernity”
(Douzinas, 2000, 16). Those criticisms of modernity and its autonomous and free subject intend to collapse
the idea of human rights accusing it to be racist idea putting value on human race and discriminating
other living and non-living things of nature. In fact, “… the ‘anti-humanist’ philosophers did not discuss
human rights at great length, with a few exceptions (Foucault). On the other hand, from Adorno to

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Arendt and from Lyotard to Levinas, they all Objections to Universality

commented on the way in which humanism can The universality of human rights has been
be turned into the inhuman, its dream of a a concern for a wide group of intellectuals and
rationally emancipated society transformed into scholars since the Universal Declaration of
the nightmare of totalitarian administration or Human Rights in the UN in 1948. The word
bureaucratic technocracy. Foucault, Lyotard and “universal” in the title of the UN declaration has
Derrida became repeatedly involved with political sparked off a chain of discussion on the concept
and human rights campaigns” (Douzinas, 2000, of universality. The universality of human rights
17). Though they were human rights activist in has been questioned, but without reaching a clear
their daily life, they did not abstain from being concept of universality. Some scholars argued for
critical to the idea of human rights. the universality of human rights, meanwhile others
opposed it grounding on relativistic or postmodern
perspectives. It is a fact that “Human rights as an
international political project are closely tied to
claims of universality … The 1993 World Human
book
C. Douzinas, (2000), The End of Human Rights Conference, in the first operative paragraph
Rights, Critical Legal Thought at the Turn of the Vienna Declaration and Programme of
of the Century, Oxford and Portland, Hart Action, asserted that ‘the universal nature of these
Publishing. rights and freedoms is beyond question. Attacks on
the universality of human rights, however, are also
widespread. And some versions of universalism
“That the notion of “humanity,” in virtue of are indeed theoretically indefensible, politically
which we possess human rights, is exclusively that pernicious, or both” (Donnelly, 2007, 281).
of our status as normative agents, beings capable of Donnelly speaks of different senses of the term
evaluating, choosing, and pursuing a conception “universal” in human rights, namely, of functional,
of our good from a range of options (2). Moreover, of international legal, and of overlapping consensus
human rights are protections of that status and its of universality. “We have already encountered three
exercise, being grounded in our interests in autonomy, ways in which human rights are universal (in the
liberty, and the minimum material provision requisite sense of applying across a class). 1) Virtually all states
to make the maintenance and exercise of that status a consider internationally recognized human rights
reality” (Tasioulas, 2010, 650). to be a firmly established part of international law
Given that the human idea of human rights is and politics. 2) Virtually all cultures, regions, and
grounded on a concept of human dignity, human leading worldviews participate in an overlapping
rights are attacked and charged with being human consensus on these internationally recognized
centered. That leads some scholars to search for a human rights. 3) This consensus rests on the
new concept of value, which places biocentrism contemporary universality of the standard threats
or egocentrism in the place of human-centrism or to human dignity posed by modern markets and
humanism. Some theories of ecology have begun modern states. I will call these international legal
to be considered a new look to the ecosphere as a universality, overlapping consensus universality,
whole instead of being human centered. and functional universality. Each, however, is
That human rights theory rests on a humanistic associated with a fundamental particularity that also
worldview may be contentious, but any human merits emphasis” (Donnelly, 2013, 94). The sense
rights theory takes its basis from the specific place of universality that he considers philosophically
or the value of human in the world. This place of and politically indefensible is the anthropological
man is the ground of his value or human dignity and ontological universality. He emphasizes that
that lays also some responsibilities on human for universal human rights, if they are understood in
the other parts of nature. the first sense, will leave considerable space for
cultural particularity and other forms of diversity
and relativity. The problem of the universality
and relativity of human rights seems to be not an

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Human Rights

either-or choice, or even a matter of degree. In sense of “occurring everywhere”; they are, however,
some important senses of the term “human rights” universal in at least three important senses, in
these rights are universal but that in other, no-less- the sense of functional, international legal and
important senses they are not (Donnelly, 2013, 1). overlapping consensus of universality. But each of
these forms of universality, however, is also relative,
in the sense that it operates only within a particular
domain, but not everywhere.
As Donnelly argues for universality in a sense,
Kuçuradi also maintains an account of universality,
in sense of universality of human rights norms or
principles. Human rights norms or principles are
deduced from the knowledge of the value of the
certain human potentialities, meanwhile cultural
norms from empirical conditions by induction.
Human rights norms bring demands for treatment of
every human person; meanwhile cultural norms aim
to protect the interest of a given a person or a group,
and usually against the interests of other persons or
groups. And so-called universality of human rights is
not its worldwide validity, as it is usually assumed to
be, but the specificity of these norms or principles.
This specificity of norms consists also the ground
of the claim of their worldwide validity. Kuçuradi
asserts that human rights norms might be asserted
as universal because of their epistemological and
Figure 8.7 Universal Human Rights in Theory and axiological specificity, i.e. having been deduced
Practice 2nd edition by Donnelly, Jack (2002) from the knowledge of the value of certain human
potentialities (Kuçuradi, 2013, 58).
Source: https://www.amazon.com/Universal-Rights-
Practice-Donnelly-Paperback/dp/B01182TNAG But some scholars are very cynical to the idea of
universality departing from various points of view.
Dembour confidently asserts that human rights are
“Universality and relativity are usually presented not universal. “In my view, the concept of human
as opposites defined either dichotomously or as rights conspicuously lacks ‘universal universality’ –
endpoints of a continuum. The primary sense of at the very least their supposed universality does
“universal,” however, as we will see in a moment, not exist across times and places. There is thus
is not merely compatible with but necessarily perhaps a sense in which the conclusion to the
includes an essential element of relativity. The second question asked in this book is foregone,
question, then, is not whether human rights are human rights are not universal, the concept is
universal or relative but how human rights are (and flawed, we should not believe in it, and that is the
are not) universal and how they are (and are not) end of the matter” (Dembour, 2007, 3).
relative” (Donnelly, 2013, 93). Donnelly tries to
The problem of universality is also noted by
clarify first the meanings of words relativity and
Marxists and feminists, but from a different angle.
universality, and he indicates that a talk of relativity
Marxists refer to the lack of universality of human
immediately calls forth the question “Relative to
rights since human rights are primarily beneficial
what?” Nothing can be relative in general, but
to the bourgeois. Feminists are not sympathetic
it must always be relative to (or dependent on)
to universality of human rights, because of the
something else in particular. He concludes that for
exclusion of women from their definition and
relativity no less than universality, an adjective that
implementation. On the other hand, the solutions
defines a context or type of relativity is essential;
of feminist critiques fall either within or outside
and human rights are definitely not universal in the
liberal parameters (Dembour, 2006, 6). If it falls

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 Theoretical and Practical Objections to Human Rights

within liberal parameters feminists seem to be for more than just phrase respect for the individual as
human rights, if not critical to human rights. an individual. It must also take into full account the
individual as a member of the social group of which
important he is a part, whose sanctioned modes of life shape
his behavior, and with whose fate his own is thus
Human rights norms might be asserted as inextricably bound. Because of the great numbers of
universal because of their epistemological and societies that are in intimate contact in the modern
axiological specificity having been deduced world, and because of the diversity of their ways of
from the knowledge of the value of certain life, the primary task confronting those who would
human potentialities (Kuçuradi, 2013, 58). draw up a Declaration on the Rights of Man is
thus, in essence, to resolve the following problem,
How can the proposed Declaration be applicable to
To answer the question whether human rights are all human beings, and not be a statement of rights
universal or not, we need first to clarify the meaning conceived only in terms of the values prevalent in the
of universality. Looking at the word ‘universal’ of the countries of Western Europe and America?” (539)
Universal Declaration of Human Rights, human rights Having in mind the social and cultural aura
have been regarded universal or universal moral norms of Eighteenth Century, AAS remind us that the
without recognizing the different senses of the word new conditions of Twentieth Century will produce
‘universal’. Any response to a critique of universality some new difficulties. “The problem of drawing
will require taking into consideration of these various up a Declaration of Human Rights was relatively
senses of the term universal. simple in the Eighteenth Century, because it was
not a matter of human rights, but of the rights of
men within the framework of the sanctions laid by a
Critique of Cultural Relativism single society…. Today the problem is complicated
“There is another objection to equating human by the fact that the Declaration must be of world-
rights with liberal democratic and modern social- wide applicability. It must embrace and recognize
welfare rights. The particular values and institutions the validity of many different ways of life. It will
which these embody have their roots in the Western not be convincing to the Indonesian, the African,
tradition of culture and civilisation. But the Western the Indian, the Chinese, if it lies on the same
is only one of a number of such traditions. Others plane as like documents of an earlier period. The
are the Islamic, the Hindu and the Buddhist, to rights of Man in the Twentieth Century cannot be
name only three, each of which is based upon a great circumscribed by the standards of any single culture,
religion” (Milne, 1993, 3). Milne acknowledges or be dictated by the aspirations of any single
this objection that casts doubt upon any idea of people. Such a document will lead to frustration,
human right which presents it as a universal ideal not realization of the personalities of vast numbers
standard, and he believes that such an ideal must of human beings” (542-543). Human rights have
be drawn from a particular tradition of culture and been considered the standards of western culture,
civilisation. And the people who do not belong to and to dictate them other cultures has considered
this culture will have no reason to accept it (Milne, as a violation of cultural rights or identities. This
1993, 4). This objection is known as critique of critique known as cultural relativism has been
cultural relativism. The cultural relativists deny one of the major critics of human rights since
the possibility of any universal value and ethical the announcement of Universal Declaration and
norm, and identify human rights as merely and found many supporters from different parts of the
inherently with western culture (Kao, 2011, 11). world, but mostly from the West. The proponents
American Anthropological Association (AAS) made of cultural relativism have argued against universal
a statement against the Universal Declaration during validity of any kind of norms supposing that each
the process of drafting, and warned the committee norm or principle has to be a part of a given society
members about the possible negative consequences or culture, and denied the possibility of any norm
of a universal declaration. “The problem is thus to which might be universal in the sense of being
formulate a statement of human rights that will do valid for all cultures.

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Human Rights

Critiques of Individualism or members are equally protected by international

Neglecting Community and local laws will be a free and just community,
Some other critiques of human rights target and in it nobody will have to face with a choice to
“the individualism inherent in human rights logic”. be individualistic or communalistic.
While individualism is criticized by some realists,
utilitarian thinkers, feminists and Marxists, liberal
thinkers value individual and individual autonomy
above anything else (Dembour, 2006, 7). Human
rights are considered as a part of liberal ideology
due to their being rights of an individual person,
but not of a community or people. If only the
Universal Declaration of Human Rights is taken
into consideration, this may be approved; but
the concept of human being is replaced by the
concept people in the International Covenant on
Civil and Political Rights, at least in its first article
(“All peoples have the right of self-determination.
By virtue of that right they freely determine their
political status and freely pursue their economic,
social and cultural development”).
Human rights are the rights of a person or an
individual, but not the rights of a community or
a group of people due to its definition. What the
human rights intend to protect is individuals, not
a community or a group of people. The criticisms
mentioned above might be right in a sense, because Figure 8.8 The Endtimes of Human Rights
these critiques are grounded on the identification Source: https://www.amazon.co.uk/Endtimes-Human-
of an individual. To take the rights of an individual Rights-Stephen-Hopgood-ebook/dp/B00FHTYFFA/
at the centre of a conceptualization will not mean ref=dp_kinw_strp_1
to advocate the interests of an individual person.
The individualism critique may be right, but only
if we consider human rights individual aspirations
Critique of Deviation from its Utopian
without differentiating these aspirations from and Revolutionary Core
rights, and fundamental rights from social and Some social scientists and philosophers of our
economic rights. To protect a fundamental right era as Douzinas, Demboor, Gearty and Baxi are
of any person will not lead to harm fundamental skeptical to the human rights claiming its deviation
rights of any other person. But to protect the from its original utopian and revolutionary
interests of one person or group will most likely nature. But they consider human rights as the
harm the interests of any other person or groups. latest expression of resistance to domination and
Human rights are not only norms for action, but oppression; and parts of a philosophy and practice
also ethical principles or norms for local, national of emancipation (Douzinas and Gearty, 2014, 3-4).
and international rules of law that regulate the They argue that “human rights are a major strategy
relation between individuals, and between a state for resisting the dictates of power and dissenting
and its citizens. To form these relations according from the intolerance of public opinion” (Douzinas,
to the norms of human rights will help to create a 2007, 12), Douzinas considers human rights “also
community in which each will enjoy fundamental the weapon of resistance to state omnipotence and
rights as much as others do. This will eradicate the an important antidote to the inherent ability of
dichotomy to be either individualistic or society sovereign power to negate the autonomy of the
centered. A society in which the rights of all of its individuals in whose name it came into existence”
(Douzinas, 2000, 20-21). And therefore human

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 Theoretical and Practical Objections to Human Rights

rights were conceived as a defence against the critique, approbation and censure are part of
domination of power and the arrogance and the same game, both contributing to the endless
oppression of wealth (Douzinas, 2007, 33). In proliferation and to the colonialism of rights.
consequence, Douzinas names the invention of Human rights have become the credo of the middle
natural law and natural right as the rebellion of classes. In this sense, the greatest achievement of
philosophers and poets against the dead weight of rights discourse is not that it narrows the distance
custom and the irrational impositions of authority between East and West, left and right or the rich
(2007, 12). and the poor, but that it has imposed the ideology
But some scholars as Douzinas, Gearty, Baxi of the rich on the poor” (Douzinas, 2007, 33).
and Demboor claim that human rights today have Though they have lost their revolutionary core,
reversed their initial values and become tools of oppressed and abused people still use the language
governments or individual desires. “… Natural of rights to protest, resist and fight for their
and human rights has been reversed turning them well-being, because of having no other currently
into tools of public power and individual desire” available tool to use. Douzinas expresses this fact in
(Douzinas, 2007, 8). That public recognition and a statement “human rights have only paradoxes to
satisfaction of individual desire have become major offer” (Douzinas, 2007, 33).
ways for the subjective, economic and ideological
organisation of late capitalism and the phrase ‘I have
a right to X’ has been used interchangeably with
the expressions ‘I desire or want X’ or ‘X should 2
be given to me’. That has produced an inflation of After becoming acquainted with these different
rights. This linguistic inflation has weakened the conceptual critiques of the idea of human rights,
association of human rights claims with significant do you think that the idea of human rights has to
human goods and undermines their position as be abandoned?
central principles of political and legal organisation
(Douzinas, 2007, 12). Douzinas called it the
hijacking of human rights by governments. PRACTICAL OBJECTIONS TO
Baxi considers this change as a change of HUMAN RIGHTS
paradigm. Due to process of globalization human
The modern critics of human rights are more
rights has become a part of international trade
radical and harsh, but mostly directed to the failure
activities and a trade-related or market-friendly
of human rights movements and the gap between
issue. Even though universal human rights are
the idea of human rights and its practice more
designed for the attainment of dignity and well-
than the idea itself. In fact, there is not a clear-
being of human beings and for enhancing the
cut borderline between conceptual and practical
security and well-being of vulnerable people and
critiques of human rights. One and the same
communities, the emergent new paradigm insists
problem might have been considered as theoretical
upon the promotion and the protection of the
in one theory of human rights, but practical in
collective human rights of global capital, in ways
the other. The problems related to the practice of
which ‘justify’ corporate well-being and dignity
human rights may be an outcome of either the
even when it entails continuing gross and flagrant
idea of human rights itself or of the conditions in
violation of human rights of actually existing
which human rights are practiced. Believing these
human beings and communities (Baxi, 2006, 234).
conditions being determinant for human rights
Baxi claims that human rights based on human
some argue that human rights are a by-product of
dignity and well-being replaced by a trade-related
liberal democracy, and they can be realized only
human rights which aim to protect the rights of
in a liberal democratic society. “Rights have no
global capital. Human rights have been a tool of
separate ontological status; they are a by-product
global economy or international trade.
of a particular kind of society, one in which the
Human rights have ingrained in new world ‘state’ operates constitutionally under the rule of
order, their claims are adopted, absorbed and law, is separated from ‘civil society’ and the ‘family’,
reflexively insured against challenge. Assent and

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Human Rights

and in which private and public realms are, in of the human rights movements, documentations
principle, clearly demarcated. Societies in which and publications in our century.
human rights are respected are more civilised and
secure than those in which they are not, but rights
are a symptom of this civilisation and security,
The Gap between the Idea of Human
not a cause. To overemphasise rights in isolation Rights and its Practice
from their social context is counterproductive, Kapur asserts that though the global widespread
potentially undermining the very factors which and acceptance of the idea of human rights, more
create the context in which rights are respected” human rights violations have been committed in
(Brown, 1997, 58). Having this assumption the 20th Century, more than at any other period
in his mind, Brown considers that promoting of human history. Citing from late Derrida the
decontextualized human rights on the global scale statement that “no degree of progress allows one to
is a near-impossible task. Though human rights ignore that never before in absolute figures, have so
are universals from liberal perspective, they are many men, women and children been subjugated,
associated with a particular kind of society, and starved or exterminated on earth” (Kapur, 2006,
to promote these rights means promote liberal 699; Derrida), she tries to portray the huge gap
society. “Proponents of universal human rights between the idea and its practice.
are, in effect, proposing the de-legitimation of all This gap has been one of the main reasons for
kinds of political regimes except those that fall attack human rights. Claimed that if we encounter
within the broad category of ‘liberal democracy’. so many violations of human rights in spite of all
Although such a de-legitimation might be regarded human rights documentations and covenants we
as desirable, it is by no means clear that a majority have implemented in this century, it would not be
of societies worldwide are actually capable of meaningful to talk about human rights today. And
becoming liberal societies, at least in the medium consequently they conclude that not only to talk
run, and it is equally unclear on what moral about rights, but also to fight for them is nonsense.
authority those who require them to take this But some indicate a third way between to see
step can rely” (Brown, 1997, 59). Brown adds human rights as trumps and as nonsense. “The
that those who criticize universal human rights idea of rights as trumps implies that when rights
either look at the promotion of a minimal, ‘thin’ are introduced into a political discussion, they
moral code advocated by Michael Walzer or to serve to resolve the discussion. In fact, the opposite
the admittedly nebulous, benefits of a sentimental is the case…. So if rights are not trumps, and if
education given by Richard Rorty. He believes that they create a spirit of nonnegotiable confrontation,
the idea of “thin” moral codes of M. Walzer may be what is their use? At best, rights create a common
used for supporting universal human rights, but R. framework, a common set of reference points
Rorty’s argumentation for a sentimental education that can assist parties in conflict to deliberate
instead of human rights theory may not be together. Common language, however, does not
considered a human rights friendly idea. According necessarily facilitate agreement” (Ignatieff, 2003,
to R. Rorty, teaching human rights theory or 20). Ignatieff calls the global diffusion of human
making argumentative discourses in human rights rights culture a form of moral progress even while
issues was not meaningful. He believed that an he remains skeptical of the motives of those who
education of human rights that addresses to the helped to bring it about (Ignatieff, 2003, 7), and
feelings of people might be more successful than an even if he sees an unconscionable gap between
epistemological justification that tries to convince the instruments and the actual practices of states
people to respect people rights of others. charged to comply with them (Ignatieff, 2003, 4).
When we talk about the practical problems of Do practical problems of human rights originate
human rights, we mostly refer to the challenges from the very nature of idea or from the inadequate
that frustrate the realization of human rights in political and economic conditions in protecting
the world. These kinds of argumentations point human rights? Gearty answers this question
out the gap between the theory of human rights condemning the practice of human rights. “Bills
in particular and its practice referring to the rise of rights, written constitutions, judicial decisions

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 Theoretical and Practical Objections to Human Rights

on rights and so on are not, I said, the whole of

the human rights story; they are merely means
to an end. That end is the proper achievement of
human rights. If these methods of securing this end
fail then they should be condemned. Judicially-
enforced bills of rights do fail … That view is one
rooted in the simple insight that each of us counts,
that we are each equally worthy of esteem. This
esteem is not on account of what we do, how we
look, or how bright we are, or what color we are,
or where we come from, or our ethnic group, it is
simply on account of the fact that we are” (Gearty,
2006, 4).
Figure 8.9 Ethics
What Gearty tries to picture is the difference
between the idea of human rights itself and human
rights law or human rights movement. If human Critique of Human Rights Movement:
rights law or human rights movement fails to Humanitarian Law Becomes a Part of
secure human rights, it does not mean the failure of the Problem
human rights, and consequently not the end of it.
David Kennedy, a pioneer human rights lawyer
Then the idea of human rights is by definition an
and activist, condemns human rights movement
idea that “all human beings are born free and equal
becoming a part of the problem even though it
in dignity and rights” as it is articulated in the first
has been contributed to build a more human
article of the UDHR. To see every human being
rights friendly world today. He emphasizes that
equal in dignity and rights, and putting aside all
more than sixty years after the adoption of the
other belongings of man that constitutes the core
Universal Declaration of Human Rights there is
of the idea of human rights. No one has more or
much to celebrate and human rights is no longer
less than others in possessing dignity and rights.
only an idea, but we have an enormous library of
Norms of human rights force everyone to act
legal norms and aspirational declarations. Kennedy
towards one another respectfully or “in the spirit of
concludes that human rights movement has done
brotherhood”. In other words, it demands to behave
a great deal of good, freeing individuals from
each other according to the norms of ethics which
great harm, and raising the standards by which
constitute (or expected to constitute) also norms of
governments are judged; and as a natural result
human rights. The question is that whether an idea
of those developments, human rights advocacy
can be declared dead even the all efforts to realize
has become at once a professional practice and
it have been failed up to this point. “The notion of
a movement today. Kennedy considers that
“the rights of man,” like revolution itself, opened
it would be more accurate today to speak of
up an unpredictable space for discussion, conflict,
international human rights as a ‘regime’ than as
and change. The promise of those rights can be
a movement or an idea beholding human rights
denied, suppressed, or just remain unfulfilled, but
departments, ombudsmen, special rapporteurs, and
it does not die” (Hunt, 2007, 175).
investigative divisions of governments. He notes
important that we have today networks, human rights courts,
non-governmental organizations international
institutions, private foundations, military staffs,
The promise of those rights can be denied,
specialized journalist, authors and media, all in one
suppressed, or just remain unfulfilled, but it
or another way trying to care human rights.
does not die” (Hunt, 2007, 175).
That is one side of the coin, on the other side
human rights also has become today a practice of
governance more than people. Kennedy talks about
dilemmas, dark sides, and disappointments of

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Human Rights

human rights as a tool of governance, and claims that human important

rights today is at once more powerful and less innocent,
urgent and compelling. He believed that the human rights
movement bit off more than it could chew (Kennedy 2012, “Human rights have been turned from a
21). The most disturbing face of international human rights discourse of rebellion and dissent into that of
movement is that it often acts as if it knows what justice state legitimacy” (Douzinas, 2000, 7).
means, always and for everyone; all you need to do is adopt,
implement, and interpret these rights” (Kennedy, 2004, 4). But he believes that justice is not like that, on
the contrary, people have to build it anew each time, and struggle for it, imagine it in new ways.
“We do worry that human rights so often legitimates and excuses government behavior –setting
standards below which mischief seems legitimate. We know it can be easy to sign a treaty and then
do what you want. But even compliance may do harm than good –a well implemented ban on death
penalty, for example, can easily leave the general conditions of incarceration unremarked, can make life
–without parole more legitimate, more difficult to change”(Kennedy, 2012, 24). Realising that human
rights has sometimes been used to legitimize even a regime that violates human rights, only by isolating
the violation in a way which normalizes the rest of the regime’s activities, Kennedy warns us about the
strategic use of human rights discourse. And invites human rights professionals to admit the limitations
of their language, their institutional practice, their governance routines. This leads him to title his articles
as “The international human rights regime, still part of the problem?” in which he tackles two dangers
of human rights work, the tendency of human rights to idealism to veer toward idolatry; and the pitfalls
of pragmatism, of participation in governance, with the all tools of policy analysis, instrumental reason,
savvy evaluation of the costs and benefits of human rights initiatives that entails (Kennedy, 2012, 22-23).

Figure 8.10 View of the Human Rights and Alliance of Civilizations Room at the Palais des Nations, Geneva, during
the 34th session of the Human Rights Council, February 2017. © UN Photo/Elma Okic
Source: https://www2.ohchr.org/english/OHCHRreport2017/allegati/Downloads/3_Highlights_of_Results_2017.pdf

The triumph of humanist pragmatism opens the door for both opportunities and dangers. Law
can provide a framework for talking across cultures about justice and efficacy of wartime violence, but
modern law is surprisingly fluid and pragmatic and supplies rarely clear rules and sharp distinctions.
Consequently, two parties of a war feel their cause is just, and they are not responsible for the deaths

209
 Theoretical and Practical Objections to Human Rights

and sufferings of war. Good legal arguments can AN EVALUATION OF THE

make people lose their moral compass and sense OBJECTIONS
of responsibility for the violence of war, they
The theory of human rights has led to various
legitimize the use of violence in a sense. This was
objections questioning both the theoretical
a result of the divergence of law from ethics. Two
foundations of human rights and the success of
hundred years ago, international law was rooted in
human rights movements. A rationally defensible
ethics, but later had become far more a matter of
idea of human rights must be able to meet all these
formal rules, delinked from morality and rooted
objections. Some criticisms were so harsh that they
in sovereign will. That made possible today to talk
have begun to talk about the dark sides of human
about “warfare”, to talk about law as a weapon,
rights or the end of a human rights utopia. Some
law as a tactical ally, law as a strategic asset, an
express their reaction with the titles of their books
instrument of war. David Kennedy, departing from
as “The Last Utopia”, “The End of Human Rights”,
the word “warfare” proposes a new word as “human
“Who believes in Human Rights?”, “Can Human
rights-fare”, human rights as a strategic asset and
Rights Survive?” and “The Endtimes of Human
instrument of war. Strategic use of human rights or
Rights”.
international human rights law legitimizes human
rights violations in the name of human rights. To
say that compliance with international law means The Power of Human Rights
that killing, maiming, humiliating, wounding In spite of these reactions, almost all of them
people is legally privileged, permitted and justified. find human rights a useful tool in constructing
Kennedy identifies this as the darker side of a liberal democracy and securing rights, and in
pragmatist humanism (Kennedy, 2012, 31) and overriding some political problems we face today.
expresses his hope for a more responsible, and more Dembour considers human rights to be a vehicle
effective humanitarianism that goes beyond the of useful values in our contemporary world. Even
twin dangers of idolatry of rules and pragmatism though it does not appear to her tenable to ‘believe’
of principles (Kennedy, 2012, 32). That would in human rights, she expresses her readiness to act
mean to return to the ethical foundation of human as if she believed in them in a world where they
rights, and to strengthen the tie between human have become part of the received wisdom since she
rights and ethics transcending diktat of rules of law almost believes in them, having been socialized in
and pragmatic use of human rights discourse only them and being persuaded by some of the values
for the interests of some people or states. they seek to express. In short, she considers human
Kennedy has expressed that has not been critical rights as a potentially useful resource in her World
to human rights, though he used criticism. He has (Dembour, 2006, 2). In fact, the language of rights
treated criticism as an instrument to return to has facilitated the establishment of some of the
ideals or to perfect the assessment of consequences. freest, safest and most civilised societies known to
He argues for human rights not as a codification history in the countries in which human rights has
of what we know justice to be, but as a lexicon for been an essential part of the political and daily life.
criticizing the pretenses of justice as it is. He lines up Douzinas generally agree with C. Demboor on
with a human rights training in critical reasoning, the value and usefulness of human rights. Although
with treaty instruments reminding us to ask again he has been one of the critical philosophers to
what justice requires; with a humanitarianism human rights claiming that “human rights have
that invigorated our political life for heterodoxy only paradoxes to offer”, he puts emphasis on
(Kennedy, 2004, 20). the human rights language and considers human
rights a voice of the oppressed and abused people.
Human rights have been and still are a convenient
language for people who face human rights abuses
3 and fight for their rights.
Does the huge gap between theory and practice
of human rights make the idea of human rights
obsolete?

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Human Rights

The Weakness of Human Rights

“Human rights today remain the only proven effective means to assure human dignity in societies
dominated by markets and states” (Donnelly, 2013, 97). But it would not mean that human rights can
safeguard the rights of all people in the world. We should keep in mind that it is only a tool to protect
the rights of people, and it becomes successful only by means of other political, economic and social
conditions. That brings Ignatieff to offer to stop thinking of human rights as trumps and begin thinking
of them as a language that creates the basis for deliberation. He thinks that in this argument, the ground
we share may actually be quite limited. “At best, rights create a common framework, a common set of
reference points that can assist parties in conflict to deliberate together. Common language, however, does
not necessarily facilitate agreement” (Ignatieff, 2003, 20).
To expect from an idea more than this would not be realistic. Ideas like a lighthouse indicate us
the right way to construct a better world, but not more than it. To build a right based society we need
more than ideas, we have to create the political and economic conditions in which human rights may
flourish. To extract human rights from the liberal political conditions in which it has emerged and it
needs to be realized, and to claim to universality of it has been the target of some critics claiming that the
contemporary human rights regime is in general, and,
for the most part, in detail, simply a contemporary,
internationalised and universalised, version of the
liberal position on rights (Brown, 2012, 55). 4

“The notion of “the rights of man,” like revolution What would you think about the claim of the
itself, opened up an unpredictable space for discussion, end of human rights after being introduced with
conflict, and change. The promise of those rights can these critiques of human rights? Can human rights
be denied, suppressed, or just remain unfulfilled, but survive in the future?
it does not die” (Hunt, 2007, 175).

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 Theoretical and Practical Objections to Human Rights

Identify the challenges to the idea

LO 1 of human rights

Even though it has been labeled as the “most significant achievement of our century”, the idea of human
rights faces today various challenges that pose a threat for its future. These are the critiques directed to
both the idea itself and its practice. Conceptual critiques are mostly directed either to the abstractness
and vagueness of concepts of human rights, and of human nature on which the idea of human rights
supposed to be to rest or to the claim of universality of human rights. Apart from these, the critiques of
Summary

its neglecting solidarity and other social values and divergence from its revolutionary core consists of main
conceptual critiques of human rights. Practical challenges to human rights have directed either to the
failure of human rights movements or the gap between the idea of human rights or its practice referring
to the challenges that frustrate the realization of human rights in the world today.

Explain the main conceptual

LO 2 critiques to the idea of human
rights

The oldest critiques of human rights (by Bentham, Burke and Marx) attacked the idea of human rights for
what they call ‘abstraction’, these all three critiques target individualism in human rights discourse, and
they all claim that the rights of man involve a radically impoverished view of the constitution of human
society. Contemporary conceptual critiques have also arisen essentially from the claim of abstractness and
ambiguity of the concepts of human rights and human being. Besides these, the critiques of universality,
of humanity, and of neglecting solidarity and other social values and putting individual or person to the
center of their concern consist of the other conceptual critiques of human rights. Dembour summarizes
them in three clauses, (1) the concept of human rights is wrongly presented as universal; (2) it pertains of
a logic which focuses on the individual to the neglect of solidarity and other social values; (3) it derives
from a reasoning which is far too abstract.
Identifying human rights as merely and inherently western culture, cultural relativists criticized the idea of
human rights strongly, and denied the possibility of any universal values and ethical norms which would
be valid for all cultures or for the people of different cultures.

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Human Rights

Describe the main practical

LO 3 objections to human rights

In fact, there is not a clear-cut border line between conceptual and practical problems of human rights. One
and the same problem might have been considered as theoretical in one theory of human rights, but practical
in the other one. Practical problems of human rights seem to have arisen from the failure of human rights
movement or human rights practice. The global widespread acceptance of the idea of human rights in one
side, and numerous human rights violations committed in the 20th Century more than at any other period

Summary
of human history on the other side have sparked off those critiques. Departing from the same controversy
some accused human rights movement of becoming a part of the problem despite it has done a great deal
of freeing individuals from great harm, and raising the standards by which governments are judged. They
criticized the strategic use of human rights language or international human rights law, which has sometimes
used as a tool to legitimize human rights violations in the name of human rights.

Evaluate the objections to human

LO 4 rights

Even both the idea and movement of human rights face with severe critiques, the language of human
rights is still believed to be a convenient tool for the oppressed people of the world. The language of rights
has facilitated today the establishment of some of the freest, safest and most civilised societies known to
history. But to stop considering human rights as trumps and begin thinking of them as a language that
creates the basis for deliberation would be a middle or moderate way. The discourse of human rights
provides a vocabulary from which our arguments can begin and the bare human minimum from which
differing ideas of human flourishing can take root. Being mindful of the fact that human rights is an idea
and ideas has not power to change the world alone, we need a particular kind of society in which human
rights will put into practice.

213
 Theoretical and Practical Objections to Human Rights

1 Which one of the following philosophers can 5 Why does cultural relativism criticize the
be counted among the philosophers who made the idea of human rights?
first objection to the idea of human rights?
A. Because of its universality claim
A. Waldron B. Because of its being an archaic idea
Test Yourself

B. Bentham C. Because of its being a moral right

C. Douzinas D. Because of its being value neutral
D. Nietzsche E. Because of its validity claim
E. Hegel

6 In which sense of universality is regarded

2 What do they mean when scholars talked indefensible by Donnelly?
about the indeterminateness of the concept of
human rights? A. International legal universality
B. Overlapping consensus universality
A. Its being clear.
C. Functional universality
B. Its being definite.
D. Ontological universality
C. Its being distinct.
E. Consensus based universality
D. Its being metaphysical.
E. Its being not clear .
7 Which of the following statements about
critiques of the concept of human nature is false?
3 With the “proliferation” of human rights any
universal human interest has been a candidate for A. Some theories of human rights argue that any
human rights. Why this inflation of human rights concept of human rights has to rest upon a
is considered a threat for human rights? concept of human nature.
B. Nussbaum considers a concept of human
A. Because it endangers the realization of human unnecessary for human rights.
rights
C. Foucault remind us that talking about human
B. Because it makes human rights discourse nature is nonsense.
unnecessary
D. Donnelly suppose that the source of human
C. Because it makes sense to talk about human rights is man’s moral nature.
rights
E. Kuçuradi considers a concept of human
D. Because it makes impossible to justify human necessary for human rights.
right
E. Because it endangers universality of human
rights 8 Which of them cannot be seen as a problem
related to the practice of human rights?
4 Which is the concept of human being A. The huge gap between theory and practice of
expressed in the first article of Universal Declaration human rights
of Human Rights? B. The increase of human rights abuses
C. The ineffectiveness of human rights movement
A. Social and political animal
D. The ineffectiveness of international human
B. Endowed with human potentialities
rights documents
C. Equipped with reason and conscience
E. The relativity of human rights
D. Rational animal
E. Endowed with reason

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Human Rights

9 Which are of the following statements about

human rights according to Rorty is right? 10 Why does D. Kennedy condemn the human
rights movement becoming a part of the problem?
A. A human rights education is necessary.
B. An argumentative discourse of human rights A. Because of its being ineffective to prevent
will help to protect human rights. human right abuses

Test Yourself
C. An argumentative discourse of human rights B. Because it has become a human rights regime
will be effective.. C. Because of its being used to legitimize human
D. An education which addresses to the feelings of rights abuses by states
people will have more chance to success. D. Because of its getting validity all over the world
E. An education which intends to convince people E. Because it has failed in building a human rights
epistemologically will be more successful. friendly society

215
 Theoretical and Practical Objections to Human Rights

If your answer is wrong, please review the If your answer is wrong, please review the
1. A 6. D
“Theoretical Objections of Human Rights” “Theoretical Objections to the Idea of
section. Human Rights” section.
Answer Key for “Test Yourself”

If your answer is wrong, please review the If your answer is wrong, please review the
2. E 7. B
“Theoretical Objections to the Idea of “Theoretical Objections to the Idea of
Human Rights” section. Human Rights” section.

If your answer is wrong, please review the If your answer is wrong, please review the
3. B 8. E
“heoretical Objections to the Idea of Human “Practical Objections to Human Rights”
Rights” section. section.

If your answer is wrong, please review the If your answer is wrong, please review the
4. C 9. D
“Theoretical Objections to the Idea of “Practical Objections to Human Rights”
Human Rights” section. section.

If your answer is wrong, please review the If your answer is wrong, please review the
5. A “Theoretical Objections to the Idea of
10. C
“Practical Objections to Human Rights”
Human Rights” section. section.
Suggested Answers for “Your Turn”

What would you think about the critiques of human

rights? Do these critiques target mainly the idea of human
rights itself or only to their practice?

The critiques related to human rights are as old as the idea itself. As a reaction
to the French Declaration on Rights Man and of the Citizen E. Burke, J.
Bentham and K. Marx criticized the notion of human rights and figured out
the shortcomings or threats of human rights in the 19th Century. Even though
these criticisms have attracted some supporters, the idea of human rights has
succeed in to be one of the dominant ideas in the 20th Century, especially in
the second part of the century. And it is still a potentially useful resource in our
World for all who do not enjoy their rights and fight for them. Beholding the
your turn 1 human rights abuses all over the world, critiques of human rights have mostly
targeted the idea of human rights itself, but they have mostly overlooked
the difference between idea of human rights and its practice, between idea
of human rights and human rights movement. They stem usually from the
practical problems of human rights, from the inadequacy of human rights
movement in securing rights of every human person in the world. But that
should not lead us to miss some conceptual critiques addressed mostly either
the idea of universality or the concepts of human being and humanity. Though
those critics may be right in some sense, they do not provide us an adequate
ground to proclaim the end of human rights.

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Human Rights

After becoming acquainted with these different

conceptual critiques of the idea of human rights, do you
think that the idea of human rights has to be abandoned?

Suggested Answers for “Your Turn”

The idea of human rights rests on a concept of human being or human nature.
Human rights are rights of each human being because of being a member of
human species. That invokes the question what is it that makes human being
different from others and his deserving to have some rights special to him. This
question may be answered only by providing a concept of human being or
human nature which figures out the potentialities or specificities of human being
that makes him valuable or dignified. And the critics directed to the concept of
human nature will directly concern the concept of human rights. That forces us
your turn 2 to take serious all the conceptual critics and respond them theoretically, if we
insist to use the discourse of human rights. Reminding that human rights are
ethical norms, to give up human rights would mean to dispense with ethical
concern both in the person to person relations and in the relations of people
with the state, and in the enactment and implementation of laws. Human rights
as ethical norms provide us a tool to codify these relations ethically. To sum up,
the critiques to the idea of human rights compels us to think on those critiques
devoutly and respond them argumentatively, but not to ignore them.

Does the huge gap between theory and practice of

human rights make the idea of human rights obsolete?

In one hand, human rights movement has been very successful and has
become the voice of all abused and oppressed people; on the other side human
rights abuses have continued to rise so far that 20th century is condemned to
be the most brutal and bloody century. This gap has been one of the main
reasons to attack human rights. Some claimed that if we encounter numerous
human rights violations in spite of all human rights documentations and
your turn 3 covenants implemented in this century, it would not be meaningful to talk
about human rights today. And consequently they conclude that not only
to talk about rights, but also to fight for them is nonsense. But having in
mind that human rights is an idea and ideas provides a compass to find the
right way in protecting human rights, any practical failure of an idea will not
invalidate the idea, but only will force us to think about the reasons of these
failures, and to differentiate practical problems from theoretical ones.

217
 Theoretical and Practical Objections to Human Rights

What would you think about the claim of the end of

human rights after being introduced with these critiques
of human rights? Can human rights survive in the future?
Suggested Answers for “Your Turn”

The claims related to the end of human rights mostly originate either from the
failures of human rights movement in protecting the rights of every human
person in the world or from the decline of the popularity of human rights
today. Today we are talking about human rights less than 20 years ago. As
Ignatieff pointed out, we need to stop thinking of human rights as trumps and
begin thinking of them as a language that creates the basis for deliberation.
In the future, rights would not be universal keys for human rights problems,
your turn 4 not a secular religion, but they will be something much more limited and
yet just as valuable. It will be a shared language from which our arguments
can begin, and the bare human minimum from which differing ideas of
human flourishing can take their root. Humanity will forever need these
bare human minimum of an ethical perspective either under the concept of
human rights or under another ethical notions similar to human rights. The
question whether human rights come to an end would mean whether the
ethical concern in politics will come to an end.

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