OBLAN, OFEL JEMAIMAH I.

HUMAN RIGHTS

LLB-1A
Assigned International ASEAN 1987 Republic Act Supreme Court Government
Right Covenant on Declaration Constitution Decisions Programs or Projects
Civil and of Human
Political Rights
Rights
Article Article 22 ECONOMIC Article III Republic Act G.R. No. 94716 Union and CBA
23. , SOCIAL Section 8. No. 9481 November 15, Registration
Everyone AND The right of An Act 1991
(4) shall have the CULTURAL the people, Strengthening Under PD 442 of the
Everyone right to RIGHTS including The Workers' ASSOCIATION Labor Code of the
has the freedom of Section 27 (2) those Constitutional OF COURT OF Philippines, as
right to association Every person employed in Right To APPEALS amended, the DOLE is
form and with others, has the right the public Self- EMPLOYEES mandated to process
to join including the to form trade and private Organization, (ACAE), the application for
trade right to form unions and sectors, to Amending petitioner, registration of labor
unions and join trade join the trade form unions, For The vs. organizations in order
for the unions for the union of his associations, Purpose HON. PURA for them to acquire
protectio protection of or her choice or societies Presidential FERRER- legal personality and to
n of his his interests. for the for purposes Decree No. CALLEJA, in enjoy the rights given
interests protection of not contrary 442, As her capacity as to legitimate labor
International his or her to law shall Amended, Director, organization. Union
Covenant on interests, in not be Otherwise Bureau of Labor registration refers to
Economic, accordance abridged. Known As Relations, and the process of
Social and with national The Labor UNION OF determining whether
Cultural laws and Code Of The CONCERNED the application for
Rights regulations. Philippines EMPLOYEES registration of a labor
Article 8 OF THE union organized for
COURT OF collective bargaining,
1. The States APPEALS complies with the
Parties to the (UCECA), documentary
present respondents. requirements
Covenant prescribed under Rule
undertake to 3 and 4 of DOLE
ensure: Department Order No.
All employees 40-03 and the rules
(a) The right of an implementing Book V
of everyone to appropriate of the Labor Code, as
form trade bargaining unit amended.
unions and shall be given
join the trade an opportunity
union of his to organize and
choice, to determine
subject only which labor
to the rules of organization
the should be their
organization exclusive
concerned, for bargaining
the promotion representative.
and protection Hence, a
of his petition for
economic and certification
social election filed by
interests. No an interested
restrictions labor
may be placed organization
on the shall be dealt
exercise of with
this right accordingly,
other than with a view to
those attaining this
prescribed by objective. This
law and which is especially
are necessary true when it
in a involves the
democratic ultimate respect
society in the for and
interests of protection of the
national rights of
security or government
public order employees. In
or for the granting to
protection of employees in
the rights and the civil service
freedoms of the right to
others; organize, a
procedure has
(b) The right been enacted to
of trade allow them to
unions to select what
establish union shall be
national the recognized
federations or representative
confederation for all those in
s and the right one agency, i.e.,
of the latter to a certification
form or join election.
international (Sections 5, 6
trade-union and 12;
organizations; Executive Order
No. 180;
(c) The right Sections 3 and
of trade 4, Rule V and
unions to Rule VI, Rules
function and Regulations
freely subject to Govern the
to no Exercise of the
limitations Government
other than Employees to
those Self-
prescribed by Organization)
law and which
are necessary
in a
democratic
society in the
interests of
national
security or
public order
or for the
protection of
the rights and
freedoms of
others;

(d) The right

to strike,
provided that
it is exercised
in conformity
with the laws
of the
particular
country.
 INTERNATIONAL HUMAN RIGHTS LAW THEORY
By:Frédéric Mégret

The author described the International human rights law as it can be analyzed as partly deliberate, partly
accidental fusion of three ideas which are an international made up of an environment, a political set up, an
idea. On the other hand, the human rights itself can be an ideological project and Law is a a tool and a project.
Thus, to sum it up, it likely results also to dilemmas and which therefore simultaneously involves human rights,
international and legal dilemmas. The essence of Human rights raise issues of the foundation, nature, and
content of right. Likewise, their transplantation in the international arena raises issues about what it means for
human rights to become international and for the international to become more dominated by the idea of rights.
It also encompasses the process of legalization of human rights internationally then creates challenges for both
human rights and international law. In his discussion of Theory of Rights, he ascertains that Human rights exist,
in a strong sense which to some ideas the natural law is the ground not just for natural rights, but also towards
human rights. Rights might not exist, in other words, but they can certainly be justified. Moreover, the search
for a foundation of rights can be found between moral and political philosophy. It can clearly portraits that
Rights are a moral theory that calls to be translated in a political system. However, the attempt to ground human
rights involves difficult study and situations or exercise about what makes humans human and tends to how
rights can respond to that fundamental intuition. He also discussed the possible foundations of rights which
includes human beings’ rationality, their autonomy, their aspiration to happiness, their fundamentally social
nature, their inherent freedom, etc. Alternatively, looking at what human beings are, is to look at what they
want. While, international human rights theory is concerned with the historical construction and development of
international human rights as a project.

The article discusses several foundations and theory of human rights. The way it emerges and bedded in
Human rationality and sense of natural right. In conclusion, the author insists that foregrounds the active role of
the human rights practitioner not as a slave to the law, but as an ideally conscious and articulate interpreter of a
project in the making.
International Human Rights Law Theory
30 Pages Posted: 21 Jan 2010

Frederic Megret
McGill University - Faculty of Law

Date Written: January 20, 2010

Abstract
This draft textbook chapter on international human rights law theory aims to give a comprehensive overview of
the field to those interested in its ongoing dilemmas. It covers both the theory of human rights, of international
human rights, and of international human rights law, as three integrated dimensions: human rights, the
international and the legal. I would recommend the chapter as an introduction to a class on international human
rights, at both the undergraduate and graduate levels.

Note: although the chapter will be published in a different form in an actual book, I anticipate that this
electronic version will be updated at regular intervals, and will therefore emerge as a live (although probably
not quite real time) resource, that makes the most of a medium such as SSRN to post up to date content.

Suggested Citation:
Mégret, Frédéric, International Human Rights Law Theory (January 20, 2010). Available at
SSRN: [Link]
 International human rights theory is a broad term that describes a variety of foundational and conceptual
dilemmas which scholars and practitioners of international human rights engage with. These raise fundamental
issues about the nature, purpose, transformation and direction of human rights on the global level. International
human rights theory is not human rights “in theory”, a sort of utopian blueprint of what might be, but the theory
of international human rights as the set of assumptions and general understandings that comprehensively
structure the project’s very daily operation.
International human rights law can be analyzed here as the partly deliberate, partly accidental fusion of
three ideas: international (an environment, a political set up, an idea), human rights (an ideological project), and
law (a tool and a project). The resulting dilemmas are therefore simultaneously human rights, international and
legal dilemmas. Human rights raise issues of the foundation, nature, and content of right; their transplantation in
the international arena raises issues about what it means for human rights to become international and for the
international to become more dominated by the idea of rights; and the process of legalization of human rights
internationally then creates challenges for both human rights (which may suffer distortions) and international
law (which may come under challenge). In practice these dilemmas are often difficult to disentangle. This
chapter merely aims to give a short overview of the sort of problems they create for those interested in
developing a theory of international human rights law.
More perhaps than general public international law, international human rights law has from its
inception and increasingly with time become a locus of disciplinary fusion: partly domestic, partly legal; partly
legal yet in very crucial ways moral and political.1 “International human rights” as an object of study has
contributed to blur many lines, so that today “human rights studies” are typically a fusion of many approaches.2
The insights of the social sciences, history, sociology, economics have all contributed tremendously to a study
that is often impoverished when it is exclusively envisaged as a legal byproduct.3 This does not necessarily
detract from the distinctiveness of international human rights law as a legal project, but it does raise central
questions for international human rights lawyers: how distinct is that law from the values it embodies? How
distinct, in turn, are human rights from the international law that has been one of the principal vehicles of their
universalization?
This chapter is a broad overview of international human rights theory research. As such, it will be more
literature review than systematic substantive engagement with the arguments that have been made over time
about the theory of international human rights. However, it is hoped that, in exploring the agendas of scholars
and thinkers, some sense of where the discipline’s core dilemmas lie will emerge. The chapter will envisage, in
succession, the theory of human rights, the theory of international human rights, and the theory of international
human rights law, although these three levels of analysis are profoundly integrated.
1 M. FREEMAN, HUMAN RIGHTS: AN
INTERDISCIPLINARY APPROACH (2002); H. J. STEINER, P. ALSTON & R. GOODMAN,
INTERNATIONAL HUMAN RIGHTS IN CONTEXT: LAW, POLITICS, MORALS: TEXT AND
MATERIALS (2008). 2 As illustrated, for example, by the discipline’s (or the object’s) flagship journal,
Human Rights Quarterly. 3 T. LANDMAN, STUDYING HUMAN RIGHTS (2006).
3
THE THEORY OF RIGHTS

THE EXISTENCE, FOUNDATION AND JUSTIFICATION OF HUMAN RIGHTS Much soul

searching has gone into the issue of whether rights actually “exist” in a fundamentally demonstrable way. There
has been a feeling that the movement would be on much firmer footing if it could make a strong case about its
intellectual bases. Although this is an issue that could be raised in a strictly domestic context, the
internationalization of rights has made it much more sensitive,4 as the human rights movement came under a
variety of attacks urging it to better justify its founding assumptions.
The traditional view is that human rights are based on a strong truth or validity claim. Human rights
exist, in a strong sense.5 Religious thinkers (e.g.: neo-scholastics such as De Vitoria and Suarez) gave the initial
impetus to some ideas about natural law as a ground for at least natural rights,6 but also human rights;7 secular
natural law theorists believe that rights inhere in human nature or are somehow inherently deducible from it;8
Enlightenment philosophers believed they could be discovered and justify rights through Reason. Immanuel
Kant, for example, is often presented as one of the great human rights thinkers, because of his attempt to deduce
universally valid moral principles derived from transcendental considerations.
These strong ontological claims about rights have come under substantial attack, although probably no
more so than the Enlightenment project in general and a certain unmitigated faith in the force of Reason.
Attacks have come from all kinds of political quarters. Political conservatives, from Burke onwards, for
example have had problems with the idea that rights belong equally to all, preferring a more patrician model. A
utilitarian like Jeremy Bentham once described rights as “nonsense upon stilts”. Marxists were prone to see
human rights as little more than a liberal bourgeois ideology.9 20th Century totalitarianism have also challenged
the foundation of rights.
The reaffirmation of rights after the Second World War has coincided with a reassessment of the
foundation of rights. To a large extent, lawyers, whether domestic or international, have sought to affirm the
existence of rights on the basis of the existence of the Law itself – when it happens to support the existence of
rights - whether it be through constitutions or international instruments. The problem with a merely positivistic
theory of the foundation of rights is that most human rights lawyers like to think that certain rights exist
regardless of whether the state has recognized them as such. In other words, domestic and international human
rights law is always tempted to reach beyond positive law, especially at times when rights are arguably needed
most, namely when a
4 J. J. Shestack, Philosophic Foundations of Human Rights, The,
20 HUM. RTS. Q. 201 (1998); M. Freeman, Philosophical Foundations of Human Rights, The, 16 HUM. RTS.
Q. 491 (1994). 5 P. J Fitzgerald, Do Human Rights Exist - A Reply, 37 QUIS CUSTODIET 132 (1972). David
McCarthy, Human Rights: Do They Exist - A Reconsideration, 35 QUIS CUSTODIET 60 (1972). 6 R. J.
Araujo, Catholic Neo-Scholastic Contribution to Human Rights: The Natural Law Foundation, The, 1 AVE
MARIA L. REV. 159 (2003). 7 J. MARITAIN, LES DROITS DE L'HOMME ET LA LOI NATURELLE
(1947). 8 Ralph McInerny, Natural Law and Human Rights, 36 AMERICAN JOURNAL OF
JURISPRUDENCE 1 (1991). 9 J. WALDRON, 'NONSENSE UPON STILTS': BENTHAM, BURKE, AND
MARX ON THE RIGHTS OF MAN (1987).
4
state, for example, refuses to recognize them at all. Moreover, purely positivist justifications of the
existence or importance of rights can be quite shallow, as many different actual attitudes to rights might lie
behind the bare act of ratifying a human rights treaty.
Today, the foundation of human rights is more often seen to lie in a variety of alternative foundations
which one might describe as “intermediary”, i.e. neither entirely metaphysical nor entirely positivist.10 Rights
may not exist in a strong sense, but they are not simply a random political choice and exert some sort of higher
claim to our normative commitments. Rights might not exist, in other words, but they can certainly be justified.
If nothing else, according to one popular interpretation, the late modern claim to rights is based on the historical
affirmation, intuitive and empirical as it may be, that rights are necessary if humanity is to avoid a repeat of the
Holocaust (or various episodes of systematic rights violations experienced in given society). 11 Alternatively,
rights are presented sociologically as a social construct emerging from the need to fight against oppression;12
In terms of more distinctly philosophical and speculative discourse, the search for a foundation of rights
is marked by work at the intersection between moral and political philosophy. Rights are a moral theory that
calls to be translated in a particular political system. Inevitably, the attempt to ground human rights involves
difficult exercises about what makes humans human, and how rights can respond to that fundamental intuition.
Possible foundations of rights thus include human beings’ rationality, their autonomy, their aspiration to
happiness, their fundamentally social nature, their inherent freedom, etc. An alternative to looking at what
human beings are, is to look at what they want. Some utilitarian theorists, in particular, have sought to show
how human rights can protect certain values that are in themselves goods that all human beings aspire to. The
problem is that we know human beings to want very different things, and that utilitarianism tends not to take
their autonomy very seriously.13 The temptation, thus, is to return to a naturalist or Kantian notion of human
rights, based on a moral theory about how human beings should treat each other (e.g.: as ends rather than
means), although how one translates an inter-personal theory of morality into a fundamental political system is
problematic. A certain skepticism has at times emerged that the tension between utilitarian and deontological
conceptions of rights can ever be alleviated.14
Much thought has also gone into renovating some of the bases of social contract theory in the context of
a renewed interest in the notion of justice. For example liberal theories of rights present them as the minimal
 AN INTRODUCTION TO THE HISTORY OF INTERNATIONAL HUMAN RIGHTS
LAW
By: Dinah Shelton, Professor of Law

For each person studying human rights throughout the world which there were still a powerful opponent
who sought to retain privilege, hierarchy, hereditary rule, property, continuity and caste. The author avers that
Human rights proponents were challenging and in turn challenged by vested interests. The history of human
rights is the product of millennia of struggle by individuals concerned with human justice and well-being. For
example, such Religious traditions: "all of the major religions of the world seek in one way or another to speak
to the issue of human responsibility to others." Likewise, history of human rights is also can be examined
through Cultural, philosophical roots, emergence of protection of citizens abroad and national laws. Thus, she
contends the very idea of human rights as a legitimate claim of every individual, founded in theology, morality,
and philosophy, is thus a powerful governance tool. While, successes in human rights can be attributed to
several linked factors because human rights is aided by its moral and ethical dimensions and the innate desire of
every human being for protection from abuse. On continues history of human rights, the civil society has
insisted on the right to participate in the development of international human rights law and structures. For
example, Nonstate actors, particularly human rights NGOs, have played an essential role at every stage of the
human rights movement. She also emphasized the role NGOs as a part of history of human rights as they likely
represent actual or potential victims of human rights violations who are concerned with preventing
governmental actions that are contrary to human rights guarantees As of today, their roles as watchdogs and
whistle-blowers are crucial to the effectiveness of human rights guarantees and to its continues development .

The author likely emphasized that history of human rights is the evolution of the society towards their
rights against the government. However, it has not yet succeeded in addressing and helping on massive
violations that as of today still occurs in weak or failed states which emerging anarchy and civil conflict prevail,
it was because of the violations by nonstate actors. It includes that the future of human rights will need to
address all these issues to maintain the progress achieved over the past centuries.
An Introduction to the History of International Human
Rights Law
GWU Legal Studies Research Paper No. 346
GWU Law School Public Law Research Paper No. 346

31 Pages Posted: 3 Sep 2007

Dinah L. Shelton
George Washington University - Law School

Date Written: August 2007

Abstract
As part of a lecture series given at the International Institute of Human Rights, in Strasbourg, France, in July
2003, the author presents an overview of the history of international human rights law. The author explores
numerous religious, political, cultural, philosophical, economic and intellectual movements throughout history
that have informed and guided the development of human rights law on the global stage. In doing so, the author
examines the moral and ethical dimensions which underpin international human rights law, including what she
defines as the innate human desire for protection from abuse. The author highlights the world's most significant
historical events and people who have influenced modern concepts of human rights law. Despite the many
successes of the human rights movement, the author draws attention to international institutions established to
protect human rights, which are often too weak to address many contemporary human rights violations and
atrocities occurring in failed states or at the hands of non-state actors. As this area of international law continues
to develop, these shortcomings must be addressed if human rights progress is to continue.

Keywords: human rights, religious traditions, international law, international organizations, United Nations,
NGOs, democracy

JEL Classification: K33

Suggested Citation:
Shelton, Dinah L., An Introduction to the History of International Human Rights Law (August 2007). GWU
Legal Studies Research Paper No. 346; GWU Law School Public Law Research Paper No. 346. Available at
SSRN: [Link]

AN INTRODUCTION TO THE HISTORY OF INTERNATIONAL HUMAN RIGHTS LAW

Dinah Shelton, Professor of Law Lectures given at the International Institute of Human Rights, Strasbourg,
France July 2003

Preface: The extensive legal protection for human rights that currently exists in national, regional and
international law is the product of millennia of struggle by individuals concerned with human justice and well-
being. These visionaries have provided inspiration and guidance, some of them acting out of religious belief
and duty, others out of compassion or a sense of responsibility. Perhaps like Edmund Burke they believed that
"All that is necessary for the triumph of evil is that good men [and women] do nothing." Or, like Margaret
Mead they "d[id] not make the mistake of thinking that concerned people cannot change the world; it is the only
thing that ever has." This short course cannot present a detailed history of all the intellectual, cultural, and
legal developments that have evolved and merged into the current international system for the protection of
human rights. It does, however, attempt to indicate the principal currents, events and individuals who
contributed to the present human rights era.

I. National Cultural, Religious and Legal Antecedents

a. Religious traditions: "all of the major religions of the world seek in one way or another to speak to the
issue of human responsibility to others." (Lauren, p. 5) • Hinduism (texts: Vedas, Agamas, Upanishads) address
the necessity for moral behavior, the importance of duty (dharma) and good conduct toward others suffering in
need. Practice charity and compassion for the hungry, the sick, the homeless, and the unfortunate. All life is
sacred, to be loved and respected. "Noninjury (ahimsa) is not causing pain to any living being at any time
through the actions of one's mind, speech or body." (Veda) • Judaism: sacredness of the individual endowed
with worth and equal value. Isaiah 58:6-7: "undo the tongs of the yoke, let the oppressed go free. . . share your
bread with the hungry, and bring the homeless poor into your house." • Buddhism: Respect for all life and
duties of compassion and charity; urged renunciation of differences of caste and rank in favor of universal
brotherhood and equality. • Confucianism: (texts: Analects, Doctrine of the Mean, and Great Learning)
Harmony and cooperation exist when duty and responsibility towards others leads to treating all human beings
as having equal work and recognizing that "within the four seas, all men are brothers." The fundamental
teaching "Do not impose on others what you yourself do not desire." Analects, XV, 23. "If there be
righteousness in the heart, there will be beauty in the character. If there is beauty in the character, there
2
will be harmony in the home. If there is harmony in the home, there will be order in the nation. If there be
order in the nation, there will be peace in the world." Great Learning, cited in Smith, 181. • Christianity: A
message of equality: "there is neither Greek nor Jew, nor slave nor free, nor man nor woman, but we are all one
in Christ." Gal. 3:28. Respect for others: "Do unto others as you would have them do unto you." • Islam:
Charity or lifting the burdens of those less fortunate is one of the pillars of belief. The Qur-an speaks to justice,
the sanctity of life, freedom, mercy, compassion and respect for all human beings. All races are equal and
religious toleration should be guaranteed. The first declaration of religious freedom in the world proclaimed
that Jews and Christians shall be protected from all insults and vexations; they shall have an equal rights and
shall practice their religion as freely as the Muslims.

Note that these texts generally do not speak of rights, but instead address moral duties and responsibilities
towards others. At the same time, the rationales underlying these duties -- equality, human dignity, and the
sacredness of life -- provide a foundation for the concept of human rights.

b. Cultural and philosophical roots • Hsün-tzu, Chinese philosopher @ 400 B.C.: "In order to relieve anxiety
and eradicate strife, nothing is as effective as the institution of corporate life based on a clear recognition of
individual rights." UNESCO, p. 303 • African traditions: see UNESCO, pp. 43, 189, 269. • Greek philosophy:
developed the idea of natural law including equal respect for all citizens, equality before the law, equality in
political power and suffrage, and equality of civil rights. • Cicero: natural law and universal justice binds all
human society together and applies to all without distinction. Each person has unique dignity which imposes on
all the responsibility to look after others. This natural law is eternal and unchangeable and valid for all nations
and all times. • John Locke: Second Treatise of Government (1690): every individual person in the state of
nature possesses certain natural rights prior to the existence of any organized government. People are born in a
state of perfect equality and enjoy all rights equally. Societies and governments are formed to preserve these
rights, not to surrender them. • Jean-Jacque Rousseau: Man is born free with intrinsic worth. • Olympe de
Gouge (nom de plume of Marie Gouze): Declaration of the Rights of Woman and Citizen (France 1791):
"woman is born free and remains equal to man in her rights". In 1793, de Gouge was beheaded. • Thomas Paine
introduced the expression "human rights" in his best seller The Rights of Man (1791). He ascribed inspiration
to the religious traditions that all observed the unity of humankind and the equality of all individuals.
3
• Mary Wollstonecraft (1792) publishes A Vindication of the Rights of Women. c. National laws

• Babylon: Code of Hammurabi (1795-1750 B.C.) The oldest legal code known today was itself based upon
earlier texts that are now lost. It represented a codification and development of the customary law of the region.
While many aspects of it today are incompatible with human rights (in particular the punishments imposed),
other portions established basic human rights principles such as equal protection of the law and remedies for
mistreatment of prisoners. In the Preamble Hammurabi expresses the fundamental purposes of government: "to
bring about the rule of righteousness in the land, to destroy the wicked and the evil-doers, so that the strong
should not harm the weak . . . and enlighten the land, to further the well-being of mankind." • Laws of the
Pharaohs: "Make sure that all is done according to the law, that custom is observed and the right of each man
respected." Lauren, 10. • Persia: Charter of Cyrus: liberty and security, freedom of movement and religious
belief, the right to property, and some other economic and social rights. • India: Edicts of Asoka (300 B.C.):
Guaranteed freedom of religion and other rights. Other Indian customary law developed humanitarian laws of
war, protecting all places of religious worship, civilian houses and property against attack. The wartime
principle of discrimination is found in the Law of Manu: no killing is permitted of one who is sleeping; who is
without his armour; one who is naked; who is deprived of his weapons; one who is only looking on and not
fighting, and one who is engaged in fighting with another person. Prisoners of war, the sick and the wounded
were to be well treated. Nirmal, p. 2 • Spain, Kingdom of Leon (1188): Confirmation of the rights of the
assembly including the rights of an accused to a trial and the inviolability of life, honor, home and property. •
England: The Magna Carta (1215), Petition of Right (1628) and Habeas Corpus Act (1679): Although imposed
by - and largely for - the nobility, the Magna Carta also contained more broadly applicable civil rights and
established the rule of law: "no freeman shall be arrested, or detained in prison or deprived of his freehold . . .
except by the lawful judgment of his peers or by the law of the land." • Hungary: The Golden Bull (Aranybulla,
1222): During the reign of King András, the Golden Bull recognized the “Hungarian Nation” and created the
framework for an annual meeting of the Diet. The text, considered the first written Hungarian constitution, was
issued at the insistence of the nobility to safeguard their rights. The last item of the Golden Bull assures the
right of individuals to disobey royal acts not
 IS THERE A HUMAN RIGHT TO DEMOCRACY? BEYOND INTERVENTIONISM
AND INDIFFERENCE
By: Seyla Benhabib

The applicability of human rights, together with its defense and institutionalization, are now seen as the
uncontested language of global politics. The author ascertained that there is wide-ranging disagreement in
contemporary discourse about the justification as well as the content of human rights. Likewise, it was explicitly
issue on the society the language of human rights and become the public vocabulary of a conflict-ridden world
which is increasingly growing together. A “free standing” global overlapping consensus is intended to enhance
the prospects of world peace by assuring that the terms of agreement be acceptable to all peoples. One of the
problems in Democracy was with liberal toleration and peaceful coexistence, for example in Rawls’s Law of
Peoples asserts for the world’s repressive regimes such as many “decent, hierarchical peoples” may be and
often are it can lead to liberal indifference, and even more, to an unjustified toleration for the world’s
repressive regimes such as many “decent, hierarchical peoples” may be and often are. She introduced the
standpoint of the “generalized other” which requires every individual as a being entitled to the same rights and
duties as like all the people want to ascribe to themselves. Thus, to have human rights in Democracy is only
possible in a society that institutionalizes a communicative framework through which individuals as citizens or
residents can participate in opinion – and will-formation regarding the laws which are to regulate their lives in
common. The right to have rights then is not only a right to conditions of membership but entails the right to
action and to opinion in the public sphere of a polity the laws of which govern one’s existence. Only through
the public expression of opinion and action can the human person be viewed as a creature who is capable of
self-interpreting rights claims.

In conclusion, the author describes Human Rights or basic rights are moral principles that need to be
embedded in a system of legal norms such as to protect the exercise of communicative freedom.
Is There a Human Right to Democracy? Beyond
Interventionism and Indifference
APSA 2011 Annual Meeting Paper

20 Pages Posted: 1 Aug 2011 Last revised: 12 Aug 2011

Seyla Benhabib
Yale University - Department of Political Science

Date Written: 2011

Abstract
There is wide-ranging disagreement in contemporary discourse about the justification as well as the content of
human rights. On the one hand, the language of human rights has become the public vocabulary of a conflict-
ridden world which is increasingly growing together. The spread of human rights, as well as their defense and
institutionalization, are now seen as the uncontested language, though not the reality, of global politics. In this
essay I wish to shift both the justification strategy and the derivation of the content of human rights away from
minimalist concerns towards an understanding of human rights in terms of the “right to have rights” (Hannah
Arendt). I will defend a discourse-theoretic justification strategy which seeks to synthesize the insights of
discourse ethics with Hannah Arendt’s concept. I thereby hope to point the way toward a more robust defense
of human rights within a global justice context. Whereas in Arendt’s work, “the right to have rights” is viewed
principally as a political right and is narrowly defined as the “right to membership in a political community,” I
will propose a non-state-centered conception of the “right to have rights,” understood as the claim of each
human person to be recognized and to be protected as a legal personality by the world community.

Suggested Citation:
Benhabib, Seyla, Is There a Human Right to Democracy? Beyond Interventionism and Indifference (2011).
APSA 2011 Annual Meeting Paper. Available at SSRN: [Link]
 There is wide-ranging disagreement in contemporary discourse about the justification as well as the content of
human rights. On the one hand, the language of human rights has become the public vocabulary of a conflict-
ridden world which is increasingly growing together.1 The spread of human rights, as well as their defense and
institutionalization, are now seen as the uncontested language, though not the reality, of global politics. Yet “… in
recent years, as political commitment to human rights has grown, philosophical commitment has waned.”2 Some
argue that human rights constitute the “core of a universal thin morality,” (Michael Walzer); others claim that
they form “reasonable conditions of a world-political consensus,” (Martha Nussbaum). Still others narrow the
concept of human rights “to a minimum standard of well-ordered political institutions for all peoples”3 (John
Rawls) and caution that there needs to be a distinction between the list of human rights included in the Law of
Peoples and the Universal Declaration of Human Rights of 1948. Different justifications of human rights
inevitably lead to variation in their content and to “cherrypicking” among various rights. Michael Walzer, for one,
suggests that a comparison of the moral codes of various societies may produce a set of standards, a “thin” list of
human rights, “to which all societies can be held – negative injunctions, most likely, rules against murder, deceit,
torture, oppression and tyranny.”4 But this way of proceeding would yield a relatively short list. “Among others,”
notes Charles Beitz, “rights requiring democratic political forms, religious toleration, legal equality for women,
and free choice of partner would certainly be excluded.”5 For many of the world’s moral systems, such as ancient
Judaism, medieval Christianity, Confucianism, Buddhism and Hinduism, Walzer’s “negative injunctions against
oppression and tyranny” would be consistent with great degrees of inequality among genders, classes, castes and
religious groups. Another suggestion is that a nonparochial view of human rights, while it may not be endorsed by
all conventional moralities, would in fact, find favor in the eyes of main conceptions of political and economic
justice in the world: understood thus, human rights would constitute the core of a political
* I first developed the themes discussed in this essay in my Presidential Address to the American Philosophical
Association, Eastern Division in December 2006. See Benhabib (2007a, 7-32). I have presented this lecture at the
University of Kansas at Lawrence upon the occasion of the annual Lindley Lecture (October 26, 2007); during the
annual meeting of the Yale Law School’s Middle Eastern Seminar in Istanbul, Turkey in January 2008; at Yale’s
“Law and Globalization Seminar” on March 31, 2008; at Fordham University’s Graduate Students in Philosophy
Conference on April 12, 2008, and at the People for Women in Philosophy conference at the New School for Social
Research on April 23, 2008. I wish to thank participants in these occasions for their lively engagement and
comments and in particular, David Alvarez Garcia, for drawing my attention to Joshua Cohen’s work on
democracy as a human right. 1 See Ignatieff (2001). I use the concept of “a public vocabulary” to distinguish it
from the Rawlsian concept of “public reason.” Public reason for Rawls is primarily the deployment of reason as a
justificatory enterprise in a pluralistic, liberal society, in which many world-views compete for the allegiance of
citizens. See Rawls (1996). A “public vocabulary,” by contrast, is a shared normative language for all sorts of
actors and agents in civil society, as well as state institutions, within, and often beyond national borders, through
which moral and political claims are articulated. It would go beyond the limits of this essay to explore all the
epistemological and methodological differences between the Rawlsian concept of public reason and the discourse-
theoretic model which I will defend. For my early critique of Rawls, see Benhabib (1996). 2 Mendus (1995, xliii,
10). For two recent contributions to the debate about human rights, cf. also Risse (2008); and Baynes (2009). 3
Rawls ([1993], 1999, 552). To distinguish this essay from the book of the same title, I refer to each text followed by
the dates 1993 and 1999 respectively. For an interesting critique of Rawls along these lines, see also Ferrara (2003,
3 ff.). 4 Walzer (1994). It is unclear to me what a human right against “deceit” would imply? A right not to be lied
to? This is a moral claim, not a human right. 5 Beitz (2001, 272).
3
rather than moral overlapping consensus. Martha Nussbaum’s defense of human rights follows this strategy.6
Certainly, the most provocative defense for limiting human rights to “to a minimum standard of well-ordered
political institutions for all peoples,” has been John Rawls’s. Rawls lists the right to life (to the means of
subsistence and security); to liberty (to freedom from slavery, serfdom, and forced occupation and to a sufficient
measure of liberty of conscience to ensure freedom of religion and thought); to personal property and to “formal
equality as expressed by the rules of natural justice (that is, that similar cases be treated similarly)”7 as the basic
human rights. The rights to liberty of conscience and association are pared down in The Law of Peoples (1999)
such as to accommodate “decent, hierarchical societies,” which grant some liberty of conscience to other faiths but
not equal liberty of conscience to minority religions that are not state-sanctioned. Article 18 of the UDHR, by
contrast, which guarantees “the right to freedom of thought, conscience and religion,” including the right to
change one’s religion, “to manifest one’s religion or belief in teaching, practice, worship and observance,” is much
more egalitarian and uncompromising vis-à-vis existing state religions than is Rawls’s right to the “nonegalitarian
liberty of conscience.” Most significantly, Rawls passes over without comment the all-too crucial Article 21 of the
UDHR which guarantees everyone “the right to take part in the government of his country, directly or through
freely chosen representatives,” and which stipulates that “the will of the peoples shall be the basis of the authority
of government.”8 There is no basic human right to self-government in the Rawlsian scheme. Given that the
Universal Declaration of Human Rights is the closest document in our world to international “public law,” how
can we explain this attempt on the part of many philosophers to restrict the content of human rights to a fraction
of what is internationally agreed to – at least on paper? I am not precluding, of course, the possibility that these
documents themselves may be philosophically confused, produced as a consequence of political compromises, as
was the UDHR, which was the subject of continuous negotiations between the delegations of the United States and
the Soviet Union.9 As James Griffin has observed, however, it is at least necessary to consider seriously the
“discrepancies between the best philosophical account of human rights and the international law of human
rights.”10 In a recent article Joshua Cohen has helpfully distinguished among two kinds of “minimalism about
human rights.” The first is “substantive,” the second, “justificatory” minimalism.11 Substantive minimalism
concerns the content of human rights, and is “more broadly, about norms of global justice.” On this view, human
rights are largely confined to what was once known as “negative liberty.” Michael
6 Nussbaum (1997-98, 273-300). 7 Rawls (1999, 65). The earlier list in the 1993 article of the same title presented a
slightly different formulation: included here as human rights were “the elements of the rule of law, as well as the
right to a certain liberty of conscience and freedom of association, and the right to emigration,” Rawls ([1993],
554). 8 See Rawls ([1993], 553-54, (1999), 79-80). 9 Cf. Morsink (1999). 10 Griffin (2001, 1-28). The result of such
an examination may be that “Some of the items on the lists are so flawed that they should be given, as far as
possible, the legal cold shoulder” (26). I agree, but Griffin proceeds from a rather conventional account of human
 rights as “centered on the notion of agency…We value our status as agents especially highly, often more highly
than our happiness. Human rights can then be seen as protections for our agency – what one might call our
personhood” (4). This defense of human rights is subject to the same criticisms as all other agent-centric views:
that some condition is necessary for the exercise of my agency does not impose an obligation upon you to respect
this condition, unless you and I also recognize each other’s equality and reciprocity as moral beings. This is the
first justificatory step in the argument. See fn. 24 below. 11 See Cohen (2004, 192).
4
Ignatieff’s, Human Rights as Politics and Idolatry (Ignatieff 2001, 173), but also Thomas Nagel’s “The Problem of
Global Justice” endorse this view.12 “Justificatory liberalism,” by contrast, is about how to present “a conception
of human rights, as an essential element of a conception of global justice for an ethically pluralistic world – as a
basic feature of ... ‘global public reason’” (Cohen 2004, 192). This is an important distinction. The attractiveness
of “justificatory minimalism” flows out of a concern with finding an “overlapping consensus” in the international
domain that would not be based on comprehensive world-views and doctrines which often are exclusionary or
sectarian in outlook; instead, such a global overlapping consensus would need to be “free standing” in Rawlsian
language. In a world where the concept of human rights has been much used and abused to justify all sorts of
political actions and interventions, such caution is certainly welcome. A “free standing” global overlapping
consensus is intended to enhance the prospects of world peace by assuring that the terms of agreement be
acceptable to all peoples. Yet this laudable concern with liberal toleration and peaceful coexistence in Rawls’s Law
of Peoples may also lead to liberal indifference, and even more, to an unjustified toleration for the world’s
repressive regimes such as many “decent, hierarchical peoples” may be and often are. Joshua Cohen’s position vis-
à-vis this implication of Rawls’s work is complex. Unlike Rawls, Cohen argues that “any reasonable conception of
collective self-determination that is consistent with the fundamental value of membership and inclusion, will…
require some process of interest representation and official accountability, even if not equal political rights for all”
(Cohen 2004, 213). In other words, even if the scope of representation and accountability defended by Cohen goes
beyond the “consultative hierarchy” considered sufficient by Rawls, Cohen still considers “the recognition of equal
political rights” for all not to be necessary for the condition of universal respect for all to be satisfied. How
plausible is this limitation? How cogently can one distinguish “interest representation” and “official
accountability” from democratic equality? Why compromise on “equal political rights for all ?”13 In this essay I
wish to shift both the justification strategy and the derivation of the content of human rights away from minimalist
concerns towards an understanding of human rights in terms of the “right to have rights” (Hannah Arendt).14 I
will defend a discourse-theoretic justification strategy which seeks to synthesize the insights of discourse ethics with
Hannah Arendt’s concept. I thereby hope to point the way toward a more robust defense of human rights within a
global justice context. Whereas in Arendt’s work, “the right to have rights” is viewed principally as a political
right and is narrowly defined as the “right to membership in a political community,” I will propose a non-state-
centered conception of the “right to have rights,” understood as the claim of each human person to be recognized
and to be protected as a legal personality by the world community.15 This reconceptualization of the “right to
have rights” in non-state-centric terms is crucial in the period since the 1948 Declaration of Human Rights – a
OBLAN, OFEL JEMAIMAH I.

Essay: History of Human righats

The history of human rights can be ascertained from the evolution of society towards their rights against
the government. On my point of view, history of human rights is also can be examined through Cultural,
philosophical roots, emergence of protection of citizens abroad and national laws. Thus, the very idea of human
rights as a legitimate claim of every individual, founded in theology, morality, and philosophy, is thus a
powerful governance tool. While, successes in human rights can be attributed to several linked factors because
human rights is aided by its moral and ethical dimensions and the innate desire of every human being for
protection from abuse. On continues history of human rights, the civil society has insisted on the right to
participate in the development of international human rights law and structures. For example, Non-state actors,
particularly human rights NGOs, have played an essential role at every stage of the human rights movement.
She also emphasized the role NGOs as a part of history of human rights as they likely represent actual or
potential victims of human rights violations who are concerned with preventing governmental actions that are
contrary to human rights guarantees As of today, their roles as watchdogs and whistle-blowers are crucial to the
effectiveness of human rights guarantees and to its continues development.

On the other hand, the history of human rights can way it emerges and bedded in Human rationality and
sense of natural right. It can clearly portraits that Rights are a moral theory that calls to be translated in a
political system. However, the attempt to ground human rights involves difficult study and situations or exercise
about what makes humans human and tends to how rights can respond to that fundamental intuition. Thus, the
foundation of history of human rights can be ascertained through evidences of rights evolved through the years.
Subject: OUTLINE FOR MIDTERM PAPER
Title: right to form and to join trade unions for the protection of his interests
I. INTRODUCTION
A. Definition of right to form and to join trade unions
The right of workers to form and to join trade unions is one of the most important international labour standards.
This means that employees, no matter where they are employed (public or private sector), have the right to form their own
organizations (unions).
There are a number of definitions for the term union. Likewise, in the history and theory of syndicalism, Karl
Marx defined union as a class organization and means of freeing workers from the capitalist mode of production. While,
the most accepted and most quoted definition of union is the one by Sidney & Beatrice Webb who see union as a "labour
organization whose main goal is maintaining or improving the conditions of their employment."
Thus, according to Majhoshev and Velinovska in their study the Right to Form and To Join Trade Unions As
Defined in International Legal Instruments, the basic principles of union organizing are: voluntariness, autonomy and
democracy.
The principle of autonomy infers that unions should have autonomy from the political parties, the government, the
employers, religious organizations and others. This kind of autonomy to the union in relation to the government is
reflected in the organizational, financial and functional sense of every Workers union. Such that, Autonomy in the
organization means independence in the establishment of its organizational structure, the establishment of union funds and
independent election of the bodies of the union.
Furthermore, the principle of democracy involves submission of democratic principles on deciding on the internal
union issues associated with its functioning such as internal democratic relations and a democratic election of union
representatives, as well as of bodies of the union.
The most important principle is voluntariness which means voluntary membership and free choice of workers in
terms of the union they want to join. The Workers right to voluntarily decide which union would they become members
of, without pressure from the employer, political parties another centers of power of the said right.

The basic principles of union organization and association are the basis for organization and association of
workers with the purpose to exercise their rights and interests.
II. MAIN BODY
A. Right To Form And To Join Trade Unions For The Protection Of His Interests
a. Universal Declaration of Human Rights
Everyone has the right to form and to join trade unions for the protection of his interests.
b. International Covenant on Civil and Political Rights
Article 22. Everyone shall have the right to freedom of association with others, including the right to form
and join trade unions for the protection of his interests.

International Covenant on Economic, Social and Cultural Rights

Article 8 1. The States Parties to the present Covenant undertake to ensure:
(a) The right of everyone to form trade unions and join the trade union of his choice, subject only to the rules of
the organization concerned, for the promotion and protection of his economic and social interests. No restrictions
may be placed on the exercise of this right other than those prescribed by law and which are necessary in a
democratic society in the interests of national security or public order or for the protection of the rights and
freedoms of others;
(b) The right of trade unions to establish national federations or confederations and the right of the latter to form
or join international trade-union organizations;

(c) The right of trade unions to function freely subject to no limitations other than those prescribed by law and
which are necessary in a democratic society in the interests of national security or public order or for the
protection of the rights and freedoms of others;

(d) The right to strike, provided that it is exercised in conformity with the laws of the particular country.

c. ASEAN Human Rights Declaration

ECONOMIC, SOCIAL AND CULTURAL RIGHTS Section 27 (2) Every person has the right to form
trade unions and join the trade union of his or her choice for the protection of his or her interests, in accordance
with national laws and regulations

d. 1987 Philippine Constitution

Article III. Section 8. The right of the people, including those employed in the public and private sectors,
to form unions, associations, or societies for purposes not contrary to law shall not be abridged.

e. Republic Act
Republic Act No. 9481 An Act Strengthening The Workers' Constitutional Right To Self-Organization,
Amending For The Purpose Presidential Decree No. 442, As Amended, Otherwise Known As The Labor Code Of
The Philippines
Article 211. Declaration of policy. - A. It is the policy of the State:

"(a) To promote and emphasize the primacy of free collective bargaining and negotiations, including voluntary
arbitration, mediation and conciliation, as modes of settling labor or industrial disputes;

"(b) To promote free trade unionism as an instrument for the enhancement of democracy and the promotion of
social justice and development;

"(c) To foster the free and voluntary organization of a strong and united labor movement;

"(d) To promote the enlightenment of workers concerning their rights and obligations as union members and as
employees;

"(e) To provide an adequate administrative machinery for the expeditious settlement of labor or industrial
disputes;

"(f) To ensure a stable but dynamic and just industrial peace; and

"(g) To ensure the participation of workers in decision and policy-making processes affecting their rights, duties
and welfare.

"B. To encourage a truly democratic method of regulating the relations between the employers and employees by
means of agreements freely entered into through collective bargaining, no court or administrative agency or
official shall have the power to set or fix wages, rates of pay, hours of work or other terms and conditions of
employment, except as otherwise provided under this Code."
 f. Jurisprudence
G.R. No. 94716 November 15, 1991
ASSOCIATION OF COURT OF APPEALS EMPLOYEES (ACAE), petitioner,
vs.
HON. PURA FERRER-CALLEJA, in her capacity as Director, Bureau of Labor Relations, and UNION
OF CONCERNED EMPLOYEES OF THE COURT OF APPEALS (UCECA), respondents.

All employees of an appropriate bargaining unit shall be given an opportunity to organize and to
determine which labor organization should be their exclusive bargaining representative. Hence, a petition for
certification election filed by an interested labor organization shall be dealt with accordingly, with a view to
attaining this objective. This is especially true when it involves the ultimate respect for and protection of the rights
of government employees. In granting to employees in the civil service the right to organize, a procedure has been
enacted to allow them to select what union shall be the recognized representative for all those in one agency, i.e.,
a certification election. (Sections 5, 6 and 12; Executive Order No. 180; Sections 3 and 4, Rule V and Rule VI,
Rules and Regulations to Govern the Exercise of the Government Employees to Self-Organization)

g. Government programs/projects
Union and CBA Registration
Under PD 442 of the Labor Code of the Philippines, as amended, the DOLE is mandated to process the
application for registration of labor organizations in order for them to acquire legal personality and to enjoy the
rights given to legitimate labor organization. Union registration refers to the process of determining whether the
application for registration of a labor union organized for collective bargaining, complies with the documentary
requirements prescribed under Rule 3 and 4 of DOLE Department Order No. 40-03 and the rules implementing
Book V of the Labor Code, as amended.

B. Objective of the Right

a. in general
The right to assembly and organization is one of the most important international labour standards and
principle of employment. This right guarantees the freedom and the right to organization and association of
employees and employers. Workers have the freedom and the right to form and join trade unions, while
employers have the right to join employers’ associations.
b. in relation to other rights

Unions improve the health and safety practices of workplaces. Thus, Unions are essential to a fair economy
and a vibrant democracy.
II. CONCLUSION
Unions fight for equal opportunities in the workplace. They stand for equal pay and treatment and against
discrimination. Unions strengthen democracy by giving workers a voice in policy debates. Workers shall enjoy adequate
protection against acts of anti-union discrimination in respect of their employment.
MIDTERM PAPER:

Trade unions, their members and officials even though the right to form and join trade unions, still faced

number of challenges such as denial of the said right, harassment and intimidation. Likewise, effective

collective bargaining between employee organization, employers has declined throught the Phuilippines. To

strengthen the government programs or projects of right to form and to join trade unions for the protection of

interests by every worker , I would like to supplement the Union and Registration Under PD 442 of the Labor

Code of the Philippines, as amended, the DOLE is mandated to process the application for registration of labor

organizations in order for them to acquire legal personality and to enjoy the rights given to legitimate labor

organization. Union registration refers to the process of determining whether the application for registration of a

labor union organized for collective bargaining, complies with the documentary requirements prescribed under

Rule 3 and 4 of DOLE Department Order No. 40-03 and the rules implementing Book V of the Labor Code, as

amended. As, the Right of Self-organization is the right of workers and employees to form, join or assist unions,

organizations or associations for purposes of collective bargaining and negotiation and for mutual aid and

protection. It also refers to the right to engage in peaceful concerted activities or to participate in policy and

decision-making processes affecting their rights and benefits. Right of Self-Organization should provide for

Unity as it acts as the Strength which unions provide workers with a powerful collective voice to communicate

to the management their dissatisfaction and frustration. They should have an equal representation on congress

even though it is white-collar job or blue collar. The treatment and accessibility for benefits and relationship to

have further opportunities shall be given. For example, the Collective Bargaining Agreement or "CBA" refers to

the contract between a legitimate labor union and the employer concerning wages, hours of work, and all other
terms and conditions of employment in a bargaining unit. It would guarantee that every right of the worker is

protected against abuse.

The collective bargaining agreement (CBA) is agreed upon by union representatives work with

employees and management to assure the rights and obligations are properly spelled out in the agreement are

honored. Thus, in the situation wherein they represent workers in high-stakes situations, such as when a safety

violation has resulted in injury, by the means of collective bargaining will give workers a say in the terms of

their employment, the security of knowing that there are specific processes for handling work-relate grievances,

and a path to solving problems. As well as, to cover expenses for negotiating contracts, defending workers’

rights, resolving disputes, and providing support to members of the bargaining unit, unions collect dues.

Furthermore, the strict registration would protect both labor and the public from abuses, fraud and, most

importantly, impostors who don't really have the concerns of labor at heart and pretend to be organizers of

unions they claim to represent (Villar vs. Inciong, 121 SCRA 444.)