Documente Academic
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A Brief Introduction
Stephen P. Marks
Harvard University
I: Introduction .................................................................................................................................. 1
II. Human rights in ethics, law and social activism ......................................................................... 1
A. Human rights as ethical concerns ........................................................................................... 2
B. Human rights as legal rights (positive law tradition) .............................................................. 3
C. Human rights as social claims ................................................................................................ 4
III: Historical milestones ................................................................................................................. 5
IV: Tensions and controversies about human rights today ............................................................. 7
A. Why do sovereign states accept human rights obligations? ................................................... 7
B. How do we know which rights are recognized as human rights? ........................................... 8
Table 1: List of human rights .............................................................................................. 9
C. Are human rights the same for everyone? ............................................................................ 11
D. How are human rights put into practice? .............................................................................. 13
1. The norm-creating process ................................................................................................ 13
Table 2: Norm-creating process ........................................................................................ 13
2. The norm-enforcing process .............................................................................................. 14
3. Continuing and new challenges to human rights realization ............................................ 16
Table 3: Means and methods of human rights implementation ........................................ 17
V: Conclusion ................................................................................................................................ 18
Selected bibliography .................................................................................................................... 19
Selected websites ........................................................................................................................... 19
Universal Declaration of Human Rights ....................................................................................... 21
science, moral philosophy, and can draw on concepts such as natural law,
jurisprudence. Roughly speaking, invoking social contract, justice as fairness,
the term “human rights” (which is often consequentialism and other theories of
referred to as “human rights discourse” or justice. In all these philosophical traditions,
“human rights talk”) is based on moral a right is conceived as an entitlement of
reasoning (ethical discourse), socially individuals, either by virtue of being human
sanctioned norms (legal/political discourse) or because they are members of a political
or social mobilization (advocacy discourse). community (citizens). In law, however, a
These three types of discourse are by no right is any legally protected interest,
means alternative or sequential but are all whatever the social consequence of the
used in different contexts, depending on enforcement of the right on the wellbeing of
who is invoking human rights discourse, to persons other than the right-holder (e.g., the
whom they are addressing their claims, and property right of a landlord to evict a tenant,
what they expect to gain by doing so. The the right of a business to earn profits). To
three types of discourse are inter-related in avoid confusion, it is helpful to use the term
the sense that public reasoning based on “human right” or its equivalent
ethical arguments and social mobilization (“fundamental right,” “basic freedom,”
based on advocacy agendas influence legal “constitutional right”) to refer to a higher-
norms, processes and institutions and thus order right, authoritatively defined and
all three modes of discourse contribute to carrying the expectation that it has a
human rights becoming part of social reality. peremptory character and thus prevails over
other (ordinary) rights and reflects the
A. Human rights as ethical concerns essential values of the society adopting it.
Human rights have in common an Ethical and religious precepts determine
ethical concern for just treatment, built on what one is willing to accept as properly a
empathy or altruism in human behavior and human right. Such precepts are typically
concepts of justice in philosophy. The invoked in the debates over current issues
philosopher and economist, Amartya Sen, such as abortion, same-sex marriage, the
considers that “Human rights can be seen as death penalty, migration, much as they were
primarily ethical demands… Like other around slavery and inequality based on
ethical claims that demand acceptance, there class, gender or ethnicity in the past.
is an implicit presumption in making Enlightenment philosophers derived the
pronouncements on human rights that the centrality of the individual from their
underlying ethical claims will survive open theories of the state of nature. Social
and informed scrutiny.”1 In moral contractarians, especially Jean-Jacques
reasoning, the expression “human rights” is Rousseau, predicated the authority of the
often not distinguished from the more state on its capacity to achieve the optimum
general concept of “rights,” although in law enjoyment of natural rights, that is, of rights
a “right” refers to any entitlement protected inherent in each individual irrespective of
by law, the moral validity or legitimacy of birth or status. He wrote in Essay on the
which may be separate from its legal status Origin on Inequality Among Men that “it is
as an entitlement. The moral basis of a right plainly contrary to the law of nature…that
the privileged few should gorge themselves
1
Amartya Sen, “Elements of a Theory of Human with superfluities, while the starving
Rights,” Philosophy & Public Affairs, vol. 32, No. 4 multitude are in want of the bare necessities
(2004), p. 320.
2 3
D.G.H. Cole translation, p. 117. Sen, supra, note 1, p. 319
and discrimination based on race or sex. in 1988) were among the more effective non-
governmental organizations (NGOs). Latin
The “International Bill of Human America, Africa and Asia saw the creation of
Rights” (consisting of the Universal an extraordinary array of human rights groups
Declaration of Human Rights [UDHR] of in the 1980s and 1990s, which have
1948, and two legally-binding treaties proliferated after the end of the Cold War.
opened for signature in 1966, namely, the
International Covenant on Civil and Political These NGOs emerged as social
Rights and the International Covenant on movements catalyzed by outrage at the
Economic, Social and Cultural Rights), mistreatment of prisoners, the exploitation of
along with the other human rights treaties of workers, the exclusion of women, children,
the United Nations (UN) and of regional persons with disabilities, or as part of
organizations, constitute the primary sources struggles against slavery, the caste system,
and reference points for what properly colonialism, apartheid, or predatory
belongs in the category of human rights. globalization. Such movements for social
These legally recognized human rights are change often invoke human rights as the basis
discussed below in Part IV.B. of their advocacy. If the prevailing theories of
moral philosophy or the extant codes of
C. Human rights as social claims human rights do not address their concerns,
their action is directed at changing the theory
Before they are written into legal texts, and the legal formulations. NGOs not only
human rights often emerge from claims of contributed to the drafting of the UDHR but
people suffering injustice and thus are based also in bringing down Apartheid,4
on moral sentiment, culturally determined transforming the political and legal
by contextualized moral and religious belief configuration of East-Central Europe5 and
systems. Revolt against tyranny is an ancient restoring democracy in Latin America.6 New
tradition. A modern precursor of social norms emerged as a result of such social
mobilization for human rights at the national mobilization during the second half of the
level was the response to the unjust twentieth century regarding self-
condemnation of Captain Dreyfus in 1894 as determination of peoples, prevention and
a spy for the Germans, which led Emile Zola punishment of torture, protection of
to proclaim in his famous “J’Accuse…!”, an vulnerable groups and, more recently, equal
impassioned call to action that led to the treatment of sexual minorities and protection
creation of the Ligue française des droits de of migrants.
l’homme in 1897, and numerous similar
leagues, which became federated in 1922 into The appeal to human rights in this
the International Federation of Leagues for advocacy discourse is no less legitimate than
the Rights of Man (now the International the legal and philosophical modes of
Federation for Human Rights), which discourse and is often the inspiration for the
spawned its counterpart in the US in 1942, the latter. Quoting Sen again, “The invoking of
International League for the Rights of Man,
now functioning in New York as the 4
International League for Human Rights. William Korey, NGOs and the Universal
Declaration of Human Rights: A Curious Grapevine,
Amnesty International (founded in 1961), the pp. 7-8.
Moscow Human Rights Committee (founded 5
in 1970), and Helsinki Watch (founded in Id., pp. 95-116.
6
1978 and expanded into Human Rights Watch Id., pp. 229-247.
human rights tends to come mostly from origins to ancient religious and
those who are concerned with changing the philosophical concepts of compassion,
world rather than interpreting it… The charity, justice, individual worth, and
colossal appeal of the idea of human rights respect for all life found in Hinduism,
[has provided comfort to those suffering] Judaism, Buddhism, Confucianism,
intense oppression or great misery, without Christianity and Islam. Precursors of human
having to wait for the theoretical air to rights declarations are found in the ancient
clear.”7 codes of Hammurabi in Babylon (about
1772 BCE), the Charter of Cyrus the Great
Former British diplomat and law in Persia (about 535 BCE), edicts of Ashoka
professor Philip Allott expressed the in India (about 250 BCE), and rules and
transformative potential of human rights traditions of pre-colonial Africa and pre-
when he found that there was, “room for Columbian America.10
optimism on two grounds. (1) The idea of
human rights having been thought, it cannot Others trace modern human rights to the
be unthought. It will not be replaced, unless emergence of natural law theories in Ancient
by some idea which contains and surpasses Greece and Rome and Christian theology of
it. (2) There are tenacious individuals and the Middle Ages, culminating in the
non-statal societies whose activity on behalf rebellions in the 17th and 18th century
of the idea of human rights is not part of Europe, the philosophers of the
international relations but is part of a new Enlightenment and the Declarations that
process of international reality-forming.”8 launched the French and American
He adds, “The idea of human rights should revolutions, combined with the 19th century
intimidate governments or it is worth abolitionist, workers’ rights and women’s
nothing. If the idea of human rights suffrage movements.11
reassures governments, it is worse than
nothing.”9 In sum, the force of social A third trend is to trace human rights to
movements drawing inspiration from human their enthronement in the United Nations
rights not only enriches the concept of Charter of 1945, in reaction to the Holocaust
human rights but also contributes to altering and drawing on President Roosevelt’s Four
international society. Freedoms and the impact of the Universal
Declaration of Human Rights of 1948 on
III: Historical milestones subsequent national constitutions and
foreign policy and international treaties and
The historical context of human rights
can be seen from a wide range of 10
Micheline Ishay, The History of Human Rights:
perspectives. At the risk of From Ancient Times to the Globalization Era, With a
oversimplification, I will mention four New Preface, New York: Norton and Co., 2008. See
approaches to the history of human rights. also Micheline Ishay (ed.), The Human Rights
Reader: Major Political Essays, Speeches, and
The first approach traces the deeper Documents from Ancient Times to the Present,
Second Edition, New York: Routledge, 2007.
Another interesting compilation may be found in
7
Sen, supra, note 1, p. 317. Jeanne Hersch (ed.), Birthright of Man, UNESCO,
8 1969. The French edition was published in 1968. A
Philip Allott, Eunomia: New Order for a New
second edition was published in 1985.
World, Oxford University Press, 1990, p. 287.
11
9 Lynn Hunt, Inventing Human Rights: A History,
Id.
New York: W. W. Norton & Company, 2007.
excluded minorities, and workers has hoc tribunals on Rwanda and former
advanced but the gap remains between the Yugoslavia and finally in the International
theory of human rights belonging to all, Criminal Court.
regardless of race, sex, language, religion,
political or other opinion, national or social IV: Tensions and controversies
origin, caste, property, birth or other status, about human rights today
and the reality of inequality and
discrimination. To understand how human rights are
part of the global agenda, we need to ask (A)
The Second World War was the why states even accept the idea of human
defining event for the internationalization of rights obligations when they are supposed to
human rights. In 1940, H.G. Wells wrote be sovereign and therefore do what they
The Rights of Man or What are We Fighting want within their territory. Then we will
For?; Roosevelt announced the “four explore (B) what is the current list of human
freedoms” (freedoms of speech and worship rights generally accepted, before asking (C)
and freedoms from want and fear) in his whether they correspond to the basic values
1941 State of the Union address; the UN of all societies or are imposed from the
Charter established in 1945 an obligation of outside for ideological reasons. Finally, we
all members to respect and observe human will examine (D) how they are transformed
rights and created a permanent commission from word to deed, from aspiration to
to promote their realization; the trial of Nazi practice.
doctors defined principles of bioethics that
were codified in the Nuremberg Code in A. Why do sovereign states accept human
1946; and the Nuremberg Trials, in 1945– rights obligations?
46, of 24 of the most important captured
leaders of Nazi Germany, established The principle of state sovereignty
individual criminal responsibility for mass means that neither another state nor an
human rights violations. Each of these international organization can intervene in a
events connected with World War II has had state’s action to adopt, interpret and enforce
major repercussions for human rights today. its laws within its jurisdiction. Does this
In the War’s immediate aftermath, bedrock principle of non-intervention in domestic
human rights texts were adopted: the affairs of states mean that they are free to
Genocide Convention and the Universal violate human rights? Along with the
Declaration of Human Rights in 1948, the principle of non-intervention, upon joining
Geneva Conventions in 1949 on the the United Nations, states have pledged
protection of victims of armed conflict, themselves “to take joint and separate action
followed in 1966 by the International in co-operation with the Organization for the
Covenants on Human Rights and scores of achievement of the purposes set forth in
UN and regional human rights texts on Article 55,”17 which include the promotion
issues such as torture, the rights of the child, of “universal respect for, and observance of,
minorities, discrimination against women, human rights and fundamental freedoms for
and disability rights, along with the creation all without distinction as to race, sex,
of investigative and accountability language, or religion.”18
procedures at the intergovernmental level.
Individual criminal responsibility for mass
17
violations of human rights re-emerged— Article 56 of the UN Charter.
after the hiatus of the Cold War—in the ad 18
Article 55 of the UN Charter. Article 1(3) of the
© Harvard University 2016
Marks 8 Human Rights
proclaimed on the expectation that they will regards as inter-related and equally
be of lasting value but in fact all have important—are not watertight and reasons
emerged when social pressures have been for considering them inherently different
strong enough to challenge power relations may be challenged. In practice, the context
and expand the list. Consider, for example, dictates the most effective use of resources,
that torture was an accepted means of institutions, and approaches more than the
obtaining a confession, that slavery was nature of the theoretical category of rights.
widely practiced and accepted for centuries,
and that women were treated as chattel in
many societies and only received political
rights in the last century. Thus, these CPR C. Are human rights the same for
have not been permanent features of society. everyone?
It is also argued that CPR are to be
implemented by states immediately, may be The claim that human rights are
enforced through judicial remedies, and are universal holds that they are the same for
relatively cost-free since they merely require everyone because they are inherent in
the state to leave people alone (so-called human beings by virtue of all people being
“negative rights”), whereas ESCR should be human, and that human rights therefore
implemented progressively, in accordance derive from nature (hence the term “natural
with available resources, since they require rights”). The UDHR refers to “the inherent
state expenditure (so-called “positive dignity and … equal and inalienable rights
rights”) and are not suitable for lawsuits of all members of the human family [as] the
(“non-justiciable”). In many circumstances foundation of freedom, justice and peace in
this is true; however, many ESCR have been the world.” The American Declaration of
made “justiciable” (that is, people can sue Independence proclaims that “all men are
the state if they consider that the right has created equal, that they are endowed by their
not been respected), and many CPR are not Creator with certain unalienable Rights” and
achieved merely passively but require a the French Declaration of 1789 refers to the
considerable investment of time and “natural, unalienable, and sacred rights of
resources (for example, to train law man.”
enforcement officials or establish an
Another basis for saying that human
independent judiciary).
rights are universal is to rely on their formal
Another reason they are often adoption by virtually all countries that have
considered different in nature concerns endorsed the UDHR or have ratified human
denunciation of violations, which is often rights treaties. Cultural relativists claim that
considered appropriate for CPR but should human rights are based on values that are
be avoided for ESCR in favor of a more determined culturally and vary from one
cooperative approach to urge governments society to another, rather than being
to do all they should to realize these rights. universal.21 There are several variants of this
However, many situations arise where an position. One is the so-called “Asian values”
accusatory approach for dealing with CPR is argument, according to which human rights
counter-productive and where it is
21
appropriate to refer to violations of ESCR. See Terence Turner and Carole Nagengast (eds.),
Journal of Anthropological Research, vol. 53, No. 3
So these two categories—which the UN (special issue on human rights) (Autumn 1997).
is a Western idea, which is at odds with the example, on which views are divided25 and
way in which leaders in Asian societies has been of considerable interest since the
provide for the needs of their people without “Arab Spring” of 2011, in which both
making the individual supreme, prioritizing Islamic and human rights values motivated
instead the value of societal harmony and peoples across the Middle East and North
the good of the collective.22 A related view Africa to overthrow deeply entrenched
holds that the concept of human rights is a dictatorships, with very mixed results, and
tool of Western imperialism used to disguise the emergence of extremist terrorist
political, economic and military ambitions organizations claiming to act according to
of Western nations against those in the their interpretation of Islam.26
developing world.23 A third is the “clash of
civilizations” argument that only the liberal The World Conference on Human
West, among the roughly seven civilizations Rights (Vienna, June 1993) addressed the
in the world, is capable of realizing human general question of balancing universal and
rights since the other civilizations lack cultural claims with this compromise
sufficient sense of the individual and the language:
rule of law.24 This issue of compatibility of
human rights with diverse belief systems All human rights are universal,
indivisible and interdependent and
and religions has special geopolitical
interrelated. The international
repercussions in relation to Islam, for community must treat human rights
globally in a fair and equal manner, on
22
the same footing, and with the same
See, for example, Bilahari Kim Hee P.S. Kausikan, emphasis. While the significance of
“An East Asian Approach to Human Rights,” The national and regional particularities and
Buffalo Journal of International Law. Vol. 2, pp.
263-283 (1995); Sharon K. Hom, “Re-Positioning
25
Human Rights Discourse on "Asian" Perspectives,” See, for example, Abdullahi An-Naim (2004)
The Buffalo Journal of International Law, vol. 3, pp. "‘The Best of Times’ and ‘The Worst of Times’:
209-233 (1996); Kim Dae Jung, “Is culture destiny? Human Agency and Human Rights in Islamic
The myth of Asia’s anti-democratic values,” Foreign Societies," Muslim World Journal of Human Rights,
Affairs, vol. 73, pp. 189-194 (November/December vol. 1: issue 1, Article 5. Available at:
1994); Arvind Sharma, Are Human Rights Western? http://www.bepress.com/mwjhr/vol1/iss1/art5; Bat
A Contribution to the Dialogue of Civilizations, New Ye’or, “Jihad and Human Rights Today. An active
York: Oxford University Press, 2006, Conclusion, ideology incompatible with universal standards of
pp. 254-269; Makau Mutua, "Savages, Victims and freedom and equality,” National Review Online, July
Saviours: The Metaphor of Human Rights." Harvard 1, 2002. Available at
International Law Journal 42, pp. 201-245 (Winter http://www.nationalreview.com/comment/comment-
2001). yeor070102.asp]; Mohamed Berween, “International
23 Bills of Human Rights; An Islamic Critique,”
See, for example, Jean Bricmont, Humanitarian
International Journal of Human Rights, Vol. 7:4
Imperialism: Using Human Rights to Sell War,
October 2004, pp. 129 –142;
Monthly Review Press, 2007, pp. 35-90; Makau
Mutua, Human Rights: A Political and Cultural 26
Critique Philadelphia, PA: University of In its resolution 30/10 of 1 October 2015, the
Pennsylvania Press (Pennsylvania Studies in Human Human Rights Council reaffirmed “that terrorism,
Rights), 2002, Chapter 2: “Human Rights as an including the actions of the so-called Islamic State in
Ideology,” pp. 39-70. Iraq and the Levant (Daesh), cannot and should not
be associated with any religion, nationality or
24
See Samuel Huntington, The Clash of Civilizations civilization.” (para. 4)
and the Remaking of World Order, New York: Simon
& Schuster, 1996.
various historical, cultural and religious eventually adopted by that body. Once the
backgrounds must be borne in mind, it is issue is on the agenda, a political body may
the duty of States, regardless of their then commission a study, eventually leading
political, economic and cultural systems, to drafting a declaration, and then a
to promote and protect all human rights
convention, which has to be ratified and
and fundamental freedoms.27
enter into force and is possibly followed by
This statement nevertheless captures an the adoption of an optional protocol
important feature of human rights today, providing for complaints procedures.
namely, that they are universal but must be
All the major human rights issues, such
realized in the context of the prevailing
as torture, women’s rights, racial
values of each society. To understand fully
discrimination, disappearances, rights of
the challenge such contextualization
children and of persons with disabilities,
represents we need to examine the means
went through these phases, lasting from ten
and methods through which universally
to thirty years or more. This is how the body
accepted human rights are put into practice.
of human rights norms has expanded
D. How are human rights put into considerably from the International Bill of
practice? Human Rights to the current array of several
hundred global and regional treaties.
Human rights are traditionally studied Following a related process, war crimes,
in a global context through (1) the norm- genocide and crimes against humanity, have
creating processes, which result in global been addressed by other treaties calling for
human rights standards and (2) the norm- criminal prosecutions of perpetrators.
enforcement processes, which seek to
translate laudable goals into tangible The process can be summarized in
practices. In addition, there are (3) Table 2:
continuing and new challenges to the
Table 2: Norm-creating process
effectiveness of this normative regime.
Lobbying for a resolution by NGOs and a
1. The norm-creating process limited number of government delegations
Adoption of a resolution calling for a study
The norm-creating process refers to Completion of a study
authoritative decision-making that results in Adoption of a resolution calling for a declaration
the formal acknowledgement of specific
Drafting and adoption of a declaration
rights and obligations in a given society and
Adoption of a resolution calling for a convention
clarifies what is expected to realize the
rights in practice. The typical norm-creating Drafting and adoption of a convention
process in international human rights Ratification and entry into force of the convention
regarding a social issue begins with Setting up of treaty-monitoring body which
expression of concern by a delegate at a issues interpretations of obligations
meeting of a political body and lobbying for Resolution calling for an optional protocol (OP)
co-sponsors to a resolution, which is allowing for complaints
Drafting and adoption of an OP
27
United Nations, World Conference on Human Ratification and entry into force of the OP
Rights. The Vienna Declaration and Programme of Treaty body passing judgment on complaints
Action. June 1993, para. 5.
institutions, and to report back on their Council, the UN General Assembly, the
findings and request redress from Committee of Ministers of the Council of
governments. The “thematic” rapporteurs Europe, the Assembly of the Organization of
are specifically mandated to study issues American States, all have adopted politically
such as forced disappearances, summary significant resolutions denouncing
executions, torture, toxic waste, and the governments for violations of human rights
rights to health, adequate food and housing. and demanding that they redress the
As of 2015 there were some 41 “thematic situation and often that they provide
mandates”. In addition, there were 14 compensation to the victims. Parliamentary
“country mandates” covering Belarus, Commissions and National Human Rights
Cambodia, Central African Republic, Côte Commissions, as well as local and
d’Ivoire, Democratic People’s Republic of international NGOs, also follow-up their
Korea, Eritrea, Haiti, Islamic Republic of investigations with firmly worded and
Iran, Mali, Myanmar, Palestinian Territories, politically significant demands for change.
Somalia, Sudan and Syrian Arab Republic. This form of sanction may appear toothless
since it is not backed up with coercive force;
The second means of protection is nevertheless, in practice many governments
adjudication of cases by fully empowered take quite seriously the pronouncements of
courts, the main international ones being the such bodies and go to considerable lengths
International Court of Justice (which can to avoid such political “naming and
only decide cases between states that agree shaming,” including by improving their
to submit their dispute to the Court), the human rights performance.
International Criminal Court (which can try
individuals for genocide, crimes against The seventh means of responding to
humanity, war crimes and the crime of human rights violations is through
aggression), as well as the regional courts, humanitarian relief or assistance. Provision
namely, the European Court of Human of food, blankets, tents, medical services,
Rights (open to persons within the 47 sanitary assistance, and other forms of aid
member states of the Council of Europe); save lives and improve health of persons
the Inter-American Court of Human Rights forcibly displaced, often as a result of large-
(open to the 25 states parties—23 active scale human rights violations. Refugees and
parties—to the American Convention on internally displaced persons come under the
Human Rights); and the African Court of protection of the UN High Commissioner
Justice and Human Rights (open to the for Refugees (UNHCR), which deploys
African Commission on Human and massive amounts of aid, along with the
Peoples’ Rights, individuals and accredited International Committee of the Red Cross,
NGOs from those of the 54 African Union the International Organization for Migration
members that have ratified the protocol (IOM), the United Nations Children’s Fund
establishing the Court, numbering 30 in (UNICEF), the World Food Programme
2016). (WFP), the United Nations Development
Programme (UNDP), the UN Office for the
Political supervision refers to the acts Coordination of Humanitarian Affairs
of influential bodies made up of (OCHA) and other agencies, as well as
representatives of states, including major NGOs like Oxfam, Care, and the
resolutions judging the policies and International Rescue Committee.
practices of states. The UN Human Rights
© Harvard University 2016
Marks 16 Human Rights
Finally, the use of coercion is available Syria,30 but only in Darfur31 and Libya32 was
only to the UN Security Council, which can it used to authorize enforcement action. The
use its powers under Chapter VII of the UN way R2P was applied in Libya explains in
Charter to impose sanctions, cut off part the reluctance to use it for enforcement
communications, create ad hoc criminal action in the civil war in Syria.33
tribunals, and authorize the use of force by
member states or deploy UN troops to put an These eight means and methods of
end to a threat to international peace and implementation are summarized in Table 3
security, which it has on occasion below.
interpreted to include human rights
violations. Human rights considerations 3. Continuing and new challenges to human
were part of the use of Chapter VII in rights realization
Cambodia, Haiti, Somalia, Bosnia, Iraq and
other locations.28 This forceful means of The adoption of norms and the
protecting human rights is complex and can implementation of accountability procedures
have harmful health consequences, as has are not enough to eliminate the deeper
been the case with sanctions imposed on causes of human rights deprivation. The
Haiti and Iraq in the 1990s. If used properly, most salient challenges to the effectiveness
Chapter VII action can be the basis for of human rights at the global level relate to
implementing the “Responsibility to the reliance on the state to take
Protect”, a doctrine adopted at a 2005 UN responsibility for correcting its ways;
Summit that reaffirms the international structural issues of the global economy
community’s role to prevent and stop favoring the maximization of profits in ways
genocides, war crimes, ethnic cleansing and over which human rights machinery has
crimes against humanity when a national little or no control or impact; and cultural
government fails to do so.29 The conditions based on patriarchy, class, caste
responsibility to protect (R2P) was explicitly and ethnicity, which only change slowly
referred to in Security Council Resolutions over time as power relations and mentalities
concerning the Great Lakes region, Sudan, change. In all these arenas, human rights are
Libya, Côte d’Ivoire, Yemen, Mali, South highly political: to the extent that they are
Sudan, Central African Republic, and
30
For references to Responsibility to Protect (RtoP or
28 R2P) in Security Council Resolutions, see
See Bertrand G. Ramcharan, The Security Council http://www.responsibilitytoprotect.org/index.php/co
and the Protection of Human Rights, Martinus mponent/content/article/136-latest-news/5221--
Nijhoff, 2002; Bardo Fassbender, Securing Human references-to-the-responsibility-to-protect-in-
Rights: Achievements and Challenges of the UN security-council-resolutions (accessed 25 Apr 2014).
Security Council, Published to Oxford Scholarship
Online: January 2012, publication date: 2011, 31
Security Council Resolution 1706 of 31 August
available at:
2006.
http://www.oxfordscholarship.com/view/10.1093/acp
rof:oso/9780199641499.001.0001/acprof- 32
Security Council Resolution 1970 of 26 February
9780199641499
2011, and Security Council Resolution 1973 of 17
(DOI:10.1093/acprof:oso/9780199641499.001.0001).
March 2011.
29
The doctrine was affirmed by the UN General
33
Assembly in paragraphs 138 and 139 of the 2005
See Spencer Zifcak, “The Responsibility to Protect
World Summit Outcome Document and reaffirmed in after Libya and Syria,” Melbourne Journal of
its resolution A/RES/63/308 of September 2009. International Law, vol. 13, (2012), pp. 2-35.
truly relevant to people’s lives they that have profoundly changed societies in
challenge the state, the political economy the past. That is how practices such as
and cultural traditions. At the same time, slavery, apartheid, colonialism, and
they offer a normative framework for exclusions of all sorts have been largely
individuals and collectivities to organize for eliminated. Similarly, environmental
change, so that state legitimacy is measured degradation, poverty, terrorism, non-
by human rights performance, the political representative government, discrimination
economy is freed from gross economic based on sexual orientation and an
disparities and social inequities, and cultural expanding array of other challenges in the
identity is preserved and cherished in ways 21st century will continue to test the value of
that are consistent with prevailing values of human rights as a normative and
individual autonomy and freedom. Appeals institutional guide to policy and practice.
to human rights in bringing about such
change is usually supported, at least
rhetorically, by the community of nations
and, in progressively more meaningful and
effective ways, by networks of solidarity
Table 3: Means and methods of human rights implementation
Promotion
Protection
Everyone
has
the
right
to
life,
liberty
and
(1)
Everyone
charged
with
a
penal
offence
security
of
person.
has
the
right
to
be
presumed
innocent
until
proved
guilty
according
to
law
in
a
public
trial
Article
4.
at
which
he
has
had
all
the
guarantees
necessary
for
his
defence.
No
one
shall
be
held
in
slavery
or
servitude;
slavery
and
the
slave
trade
shall
be
(2)
No
one
shall
be
held
guilty
of
any
penal
prohibited
in
all
their
forms.
offence
on
account
of
any
act
or
omission
which
did
not
constitute
a
penal
offence,
Article
5.
under
national
or
international
law,
at
the
time
when
it
was
committed.
Nor
shall
a
No
one
shall
be
subjected
to
torture
or
to
heavier
penalty
be
imposed
than
the
one
that
cruel,
inhuman
or
degrading
treatment
or
was
applicable
at
the
time
the
penal
offence
punishment.
was
committed.
Article
6.
Article
12.
Everyone
has
the
right
to
recognition
No
one
shall
be
subjected
to
arbitrary
everywhere
as
a
person
before
the
law.
interference
with
his
privacy,
family,
home
or
Article
7.
correspondence,
nor
to
attacks
upon
his
honour
and
reputation.
Everyone
has
the
All
are
equal
before
the
law
and
are
entitled
right
to
the
protection
of
the
law
against
such
without
any
discrimination
to
equal
interference
or
attacks.
protection
of
the
law.
All
are
entitled
to
equal
protection
against
any
discrimination
in
Article
13.
violation
of
this
Declaration
and
against
any
(1)
Everyone
has
the
right
to
freedom
of
incitement
to
such
discrimination.
movement
and
residence
within
the
borders
Article
8.
of
each
state.
Everyone
has
the
right
to
an
effective
remedy
(2)
Everyone
has
the
right
to
leave
any
by
the
competent
national
tribunals
for
acts
country,
including
his
own,
and
to
return
to
violating
the
fundamental
rights
granted
him
his
country.
by
the
constitution
or
by
law.
Article
14.
Article
9.
(1)
Everyone
has
the
right
to
seek
and
to
enjoy
in
other
countries
asylum
from
No
one
shall
be
subjected
to
arbitrary
arrest,
detention
or
exile.
persecution.
Article
10.
(2)
This
right
may
not
be
invoked
in
the
case
of
prosecutions
genuinely
arising
from
non-‐
Everyone
is
entitled
in
full
equality
to
a
fair
political
crimes
or
from
acts
contrary
to
the
and
public
hearing
by
an
independent
and
purposes
and
principles
of
the
United
impartial
tribunal,
in
the
determination
of
his
Nations.
rights
and
obligations
and
of
any
criminal
charge
against
him.
Article
15.
(2)
No
one
shall
be
arbitrarily
deprived
of
his
(1)
Everyone
has
the
right
to
freedom
of
nationality
nor
denied
the
right
to
change
his
peaceful
assembly
and
association.
nationality.
(2)
No
one
may
be
compelled
to
belong
to
an
Article
16.
association.
(1)
Men
and
women
of
full
age,
without
any
Article
21.
limitation
due
to
race,
nationality
or
religion,
have
the
right
to
marry
and
to
found
a
family.
(1)
Everyone
has
the
right
to
take
part
in
the
They
are
entitled
to
equal
rights
as
to
government
of
his
country,
directly
or
marriage,
during
marriage
and
at
its
through
freely
chosen
representatives.
dissolution.
(2)
Everyone
has
the
right
of
equal
access
to
(2)
Marriage
shall
be
entered
into
only
with
public
service
in
his
country.
the
free
and
full
consent
of
the
intending
spouses.
(3)
The
will
of
the
people
shall
be
the
basis
of
the
authority
of
government;
this
will
shall
be
(3)
The
family
is
the
natural
and
fundamental
expressed
in
periodic
and
genuine
elections
group
unit
of
society
and
is
entitled
to
which
shall
be
by
universal
and
equal
protection
by
society
and
the
State.
suffrage
and
shall
be
held
by
secret
vote
or
by
equivalent
free
voting
procedures.
Article
17.
Article
22.
(1)
Everyone
has
the
right
to
own
property
alone
as
well
as
in
association
with
others.
Everyone,
as
a
member
of
society,
has
the
right
to
social
security
and
is
entitled
to
(2)
No
one
shall
be
arbitrarily
deprived
of
his
realization,
through
national
effort
and
property.
international
co-‐operation
and
in
accordance
with
the
organization
and
resources
of
each
Article
18.
State,
of
the
economic,
social
and
cultural
rights
indispensable
for
his
dignity
and
the
Everyone
has
the
right
to
freedom
of
thought,
free
development
of
his
personality.
conscience
and
religion;
this
right
includes
freedom
to
change
his
religion
or
belief,
and
Article
23.
freedom,
either
alone
or
in
community
with
others
and
in
public
or
private,
to
manifest
(1)
Everyone
has
the
right
to
work,
to
free
his
religion
or
belief
in
teaching,
practice,
choice
of
employment,
to
just
and
favourable
worship
and
observance.
conditions
of
work
and
to
protection
against
unemployment.
Article
19.
(2)
Everyone,
without
any
discrimination,
has
Everyone
has
the
right
to
freedom
of
opinion
the
right
to
equal
pay
for
equal
work.
and
expression;
this
right
includes
freedom
to
hold
opinions
without
interference
and
to
(3)
Everyone
who
works
has
the
right
to
just
seek,
receive
and
impart
information
and
and
favourable
remuneration
ensuring
for
ideas
through
any
media
and
regardless
of
himself
and
his
family
an
existence
worthy
of
frontiers.
human
dignity,
and
supplemented,
if
necessary,
by
other
means
of
social
(2)
Motherhood
and
childhood
are
entitled
to
(1)
Everyone
has
duties
to
the
community
in
special
care
and
assistance.
All
children,
which
alone
the
free
and
full
development
of
whether
born
in
or
out
of
wedlock,
shall
enjoy
his
personality
is
possible.
the
same
social
protection.
(2)
In
the
exercise
of
his
rights
and
freedoms,
Article
26.
everyone
shall
be
subject
only
to
such
limitations
as
are
determined
by
law
solely
(1)
Everyone
has
the
right
to
education.
for
the
purpose
of
securing
due
recognition
Education
shall
be
free,
at
least
in
the
and
respect
for
the
rights
and
freedoms
of
elementary
and
fundamental
stages.
others
and
of
meeting
the
just
requirements
Elementary
education
shall
be
compulsory.
of
morality,
public
order
and
the
general
Technical
and
professional
education
shall
be
welfare
in
a
democratic
society.
made
generally
available
and
higher
education
shall
be
equally
accessible
to
all
on
(3)
These
rights
and
freedoms
may
in
no
case
the
basis
of
merit.
be
exercised
contrary
to
the
purposes
and
principles
of
the
United
Nations.
(2)
Education
shall
be
directed
to
the
full
development
of
the
human
personality
and
to
Article
30.
the
strengthening
of
respect
for
human
rights
and
fundamental
freedoms.
It
shall
promote
Nothing
in
this
Declaration
may
be
understanding,
tolerance
and
friendship
interpreted
as
implying
for
any
State,
group
among
all
nations,
racial
or
religious
groups,
or
person
any
right
to
engage
in
any
activity
and
shall
further
the
activities
of
the
United
or
to
perform
any
act
aimed
at
the
Nations
for
the
maintenance
of
peace.
destruction
of
any
of
the
rights
and
freedoms
set
forth
herein.
(3)
Parents
have
a
prior
right
to
choose
the