Nature and Grounds of Human Rights
Main Points
Introduction
- HRs given to HBs
- IHRL
- HRs belong to all human beings
- Universal in nature.
- Modern Discourse on HRs
● Exclusionary
- Contemporary Discourse
● Inclusionary
● HRs given to a real person (alive)- Multifarious needs, various emotions
● All kinds of rights vested
● HRs discourse - livelier, carnivalistic
● Earlier State-centric - now people-centric (NGOs, people’s movements)
- Several Factors
● 2nd World War
● Nazizism and Fascism
● Hitler had an organic view of the state.
➢ Identified state with race and race with blood
➢ State an organisation of physically and psychologically similar people for
better facilitation of the maintenance of the species.
● Holocaust
● Starvation,
● Death Disease, deaths of civilians
● And atrocities committed against warring alliances against each other.
- HBs were not the subject of discourse in IHRL
- IHRL - dealt wth matters related to territorial sovereignty, trade, laws of the ssea,
- violation and abuse of human dignity were not the subject matters
- Atlantic Charter (principal policy statement issued during the 2nd World War)
● Set goals for the post-war period
● Became the basis for the establishment of the UNs in 1945
● UDHR was adopted in 1948
➢ A normative statement on how human beings ought to to be treated
➢ Declaration
➢ Need for a legally binding document was felt
● ICCPR - 1966
● ICESCR- 1966
- Cold war politics delayed the process of incorporating the rights in the UDHR as legal
norms
- Eastern Bloc - gave importance to social rights
- Western Bloc- felt social rights -
● Abstract
● Intangible, indeterminate
● Difficult to enforce as the civil and political rights.
● Interpreted social rights as provision rights or manifesto rights
● It is the duty of the state to protect and not provide
- UDHR
- ICCPR
- ICESCR
- All 3 constitute the International Bill of HRs or HRs regime.
Nature of HRs
- HRs are norms that help to protect people from severe abuses
- Restore the dignity of the human individual
- HRs are not privileges that can be granted or revoked
- They are inherent to each individual; inalienable and universal
- There is that notion of the ‘independent existence HBs embedded in the idea of HRs
- HRs are Universal rights
- Debate on the idea of Universality of HRs and Cultural Relativism
● Universalism- believes that some ideas are universally applicable/valid
● Cultural Relativism- cultural values and rights are relative in nature
- Inalienable
● Can’t be taken away
● Inherent to HBs
● However, it doesn’t mean that they are absolute
● Means that they are of such paramount importance that they cannot be traded off
easily
● Hard to lose
- Indivisible
● Means priortising certain rights or assigning hierarchy between rights is not
appropriate
● HBs need all kind of rights
- Interdependent and Interconnected
● Right to work has less value if workers are not allowed to meet and assemble and
meet each other
● Sen (2000) no substantial famine, has taken place in a democratic country
● Campbell (2007) - talks of “mutually supportive relationship” between rights
➢ Practical differences rights have been greatly exaggerated
● Taisoulas (2007) severe poverty means not only material deprivation but also lack
of security, poor health, autonomy, deprived of understanding and friendship
- Plural in nature
● Do not address a single issue, rather numerous issues
● Deal with real individuals, having multifarious needs
● Hoever, some are opposed to the ever-expanding (proliferation) list of HRs
- Minimal Rights
● Manny writers support a minimal view of rights
● Prefer few right to too many rights
● If HRs are too expansive then they are difficult to implement universally because
of nations having different cultural and moral systems
● Michael Walzer
➢ “Thin and thin moralities”
➢ Upholds a minimal view of HRs
➢ There is a set of moralities which is upheld by all societies- all societies
have rules against murder, deceit, torture.
➢ They are non-parochial and constitute the moral minimum which can be
upheld and endorsed by all in “global moral pluralism.”
● Vincent R. J
➢ There is a core of basic rights which is common to all cultures
➢ Lowest common denomination
➢ Which can be upheld by all societies
● Michael Iggnateiff
➢ HRs can command universal assent only as a thin theory of rights
➢ If HRs become expansive they will be difficult to endorse.
- Claim rights
● Claim rights are rights that impose duties, responsibilities or obligations on others
➢ Claim rights are often distinguished from liberty rights which do not
impose duties on others.
● Joel Feinberg (1970) holds that rights are “valid claims” - as valid claims entail
duties.
➢ Claim which cannot be fulfilled like related to blanched diet, universal
free education as manifesto rights or potential rights.
Grounds of HRs
- Moral Conception/grounds on which HRs are supported
- Political Conception of HRs.
- Moral Conception
- Looks at HRs from a moral standpoint.
- HRs are rights given to human beings in the capacity of being human
- Has deep philosophical and historical roots
- John Locke
● HBs are born with rights
● Natural theory of rights
● Pre-legal and pre-social
● Theory was developed to limit the powers of the state.
- Immanuel Kant
● Argued that HBs are rational and autonomous beings
● They are an end in themselves
● They possess dignity, and treating them with dignity means treating them morally.
● These are categorical imperatives which demand universal application and must
be upheld under all conditions.
- Pico della Mirandola
● God fixed the nature of all things but left HBs to determine their own nature
● It is the autonomous nature of HBs that constitutes an individual.
● HBs may differ from each other, but it is the autonomous nature of HBs which
brings them together.
● This view received powerful support from Renaissance thinkers.
- This is the fundamental nature of human beings. It was, is and will remain the same in the
future.
- Craft (2015) says HRs are essential means to realise the features that individuals value
the most- dignity, autonomy, agency. good life, and basic needs.
- Agency
● Is a distinguishing feature of human beings - James Griffin (2000)
● Says that it is this feature which distinguishes human beings from animals.
● Human beings have a conception of life, - form a picture of what a good life is-
and try to realise this picture.
● We are agents of our lives.
● This process of choosing and following the conception of life demands freedom
and individual autonomy.
● This is human agency.
● Griffin calls human agency “normative agency” or “personhood”
● Human dignity should be understood in these terms
● HRs protect our dignity by protecting our agency- the right to choose our own
conception of life.
● When rights are violated human dignity, human agency and dignity are
compromised.
● Many rights can be derived from the agency account–
➢ right to life, ( human beings should be able to sustain themselves,
maintaining their life to be agents of themselves
➢ The right not to be tortured
➢ Freedom of expression
➢ Freedom to form personal relationships
- Good life
● A broader/ expansive view and ground on which HRs have been supported.
● Aristotle - eudamonia or human flourishing
● Human happiness is the central purpose of human life
- Need
● Minimal view of HRs
● Needs are things that all human beings require, they are basic to HBs
- Capabilities
● Sen and Martha Nussbaum (2011)
● Capabilities are substantial freedoms - that give real opportunities - to achieve
certain functionings.
● Functionings are “being and doing”
● They are the different states in which an individual can be, and the different
activities that an individual can undertake
● Functionings are the goal - the end point- which can be achieved through
capabilities
● Nussbaum refers to 10 capabilities
➢ Life (able to live a normal, healthy life, not dying prematurely)
➢ Bodily health
➢ Bodily integrity
➢ Emotions
➢ Affiliation
Political Conception
- Theorists like John Rawls, Charles Beitz and Joseph Raz ground HRs in contemporary
international political practices.
- According to this view, HRs play a political role or a combination of such roles
- They work as a benchmark, a yardstick, to evaluate domestic institutions, determine the
eligibility of development assistance.