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Where do human rights come from?
"The claim that all the existing human rights standards already enjoy universal cultural legitimacy may be weak from a historical point of view in the sense that many cultural traditions in the world have had little say in the formulation of those standards." (An-Na’im)

The "history" of human rights looked at here is very much centred on the West, and there are many different approaches to what human rights are.
Some of the approaches looked at here do not apply to everyone and some rely too heavily on the involvement of the state.
I personally prefer those approaches that acknowledge that not everyone is the same, instead of focusing on one value such as dignity or agency as its basis.
I often come back to the same questions: Are all human beings equal? Can we make general definitions about human rights if there is such a large range of different societies, values and norms?

What are human rights?
It is incredibly hard to actually define what human rights are
there are so many approaches, explanations and ideas. But maybe it is better that way. If we were to try and make a set definition and/or list of human rights, it would restrict their application and reach. On the other hand, it would also make it a lot easier to enforce them.
Another issue with this would be cultural relativism. Could a universal system of human rights be agreed upon, while also keeping this in mind?
This might be possible, if everyone can agree that all different kinds of background and values should be considered and respected. There are probably some basic human rights that everyone could agree on as being universal. But it would most likely be a very limited list.

→There is no clear definition of what human rights are and no clear history of where they came/come from. What human rights are can change with time and be different in different parts of the world. Even if it were possible for everyone to get together and agree on a set definition of and approach to human rights, this might not actually be the best way to go. Maybe leaving it open for interpretation and expansion is the best way to go.

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What are human rights and where do they come from?

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Implementation of human rights obligations

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Implementation of human rights obligations

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Duty to respect:

negative obligation not to violate rights

probably the easiest to achieve

Duty to protect:

positive obligation to ensure that people do not suffer from human rights violations

liable where violation is directly connected to the state's failure

private issues can become public by virtue of duty to protect: e.g. domestic violence (Velásquez Rodriquez v Honduras (1988))

Duty to fulfil:

positive obligation to take steps towards the enjoyment of human rights

e.g. the right to vote is meaningless if the state does nothing to implement it

important: providing a remedy

→ These duties are not always easy to distinguish. But they can help with understanding the polycentric nature of obligations.

(Lecture 4)

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Reservations are a good way to get as many states as possible to sign up to treaties etc. and they help with the issues of cultural diversity. However, if there is no limit to reservations some states' commitment to treaties will simply be of a performative nature.

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Allows states to change or modify their obligations under a treaty (definition in Article 2 of Vienna Convention).

Why do states do this?

to be consistent with their national laws (especially religious & constitutional laws)

cultural relativism, e.g. to provide for different religious beliefs

to protect from expansive interpretation of obligations

(Lecture 4)

Pro: gets more states to sign on to Treaties

Cons:

if states do not agree to all honour the same rights the universality of human rights is threatened

possibility that states may get a „free ride“ by getting benefits that come with being part of a treaty while also only having to comply with parts of it

problem of legal certainty: What is the exact scope of rights?

(Mégret)

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Human rights law is special because it focuses on the needs and rights of the individual, not the state. In comparison to other international laws it has a "higher purpose" and involves moral obligations.

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Human Rights law is a branch of Public International Law, but there are many differences.
→ Obligations of states towards individuals (HR) vs obligations between states (PIL)

human rights deal with issues that are of a humanitarian nature

supranational: goes beyond national laws, "higher purpose"

objective (ECHR): not dependent on what states want

human rights obligations have a high normative worth

(trying to set standards of behaviour for future conduct)

human rights treaties declare existing moral obligations: states are committing to something which they are already morally obliged to recognise (Mégret)

(Lecture 4)

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Article 38(1) ICJ Statute sets out four concrete sources of international law:
1. International conventions/treaties etc.:

usually only states are parties (sometimes also other organisations such as EU, Red Cross)

not reciprocal: state promises to do something for the individual, they do not have to do anything in return

agreements to be bound by legal obligation

treaty bodies monitor and report on implementation

2. Customary international law:

binding on all states

unwritten, reflects societies views

two criteria: state practice & opinio juris

3. General principles of law:

principles included in most legal systems (e.g. equality before the law, right to a fair trial)

human rights is likely to be general principles

4. Judicial decisions etc.:

no central international human rights court, no precedent

no legislature & no enforcement = makes judicial decisions even more important

Article 38(1) ICJ is not exhaustive. You have to look beyond it because it does not reflect the diversity and complexity of human rights.
There is no official test for determining new human rights. It may be good this way because if there was an official process there might be less inclusion and flexibility.

(Lecture 4)

Chinkin:

human rights is a field that engages many different actors, not just states and these actors also influence the development of human rights law through their activities

these might not constitute formal sources of human rights law but they also cannot be completely ignored

human rights law is a tool for people to rely on its standards to appeal against what they regard as unwarranted intrusion into their lives; it provides tools for challenging state action

human rights law is ever evolving and the decision-makers need to decide whether they want to strictly rely on formal sources and interpret them narrowly or if they want to include other instruments so that a wider range of behaviour can be included and to affirm them as contrary to international law

(Chinkin)

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All of these approaches have a similar basis: they advocate for more conversation and for respecting diversity of different values and norms. I think this is a great approach.
Concerning the Margin of Appreciation: good idea, but I wonder if it could also work on a larger scale?

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Cross-cultural consensus:

the conversation of what human rights mean needs to be culturally legitimate

least common denominator approach not enough

for there to be a broad foundation for the range and scope of human rights, there needs to be an expansion of the area and quality of agreement between different cultural traditions

proposes to expand the universal consensus on human rights through internal reinterpretation and cross-cultural dialogue on basic human values and norms and their meanings and implications

there are certain fundamental interests, values, concerns etc. that all human beings and societies share; if these are identified then they can become the framework for a common "culture" of universal human rights

internal discourse: struggle to establish enlightened perceptions and interpretations of cultural values and norms

cross-cultural dialogue: should be aimed at expanding and deepening international/intercultural consensus

this approach must try to emphasise internal values over external ones

(An-Na'im)

→ good way of addressing the debate between universality and cultural relativism; at the least the conversation about human rights should be a representative conversation, human rights can be interpreted in a culturally relevant way

Inclusive Universality:
Brems: conversation about coming up with universal values needs to be inclusive

Bounded Pluralism:
Roth: we need to be sceptical when things are said to be universal, we need to place some limits on universal standards

Margin of Appreciation:
ECHR: enables court to take into account and place a lot of weight on the way in which things are done in a particular country

(Lecture 3)

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Clearly, the approach to human rights has been too Western centric for too long. However, I do not agree with the argument that human rights should not be used as an instrument of political pressure. I certainly do not think that it should be a common practice, but the option should be there, because there might be situations where it is very much needed (not for political gain but to help people who's rights are not being respected).

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Only one of many critiques (universalism as neo-colonialism, feminist critique of universality, relativism and cultural homogeneity, tolerance etc.).

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Bangkok Declaration 1993: affirms commitment of Asian States to human rights but also declares that historical, cultural and religious backgrounds are important and must be considered (Lecture 3)

Kausikan:

points out that East and Southeast Asia can now exert considerable influence on an international scale, including human rights politics, therefore their values should not be disregarded

human rights should not be used as an instrument of political pressure

Vienna UN conference in 1993 did not bring any real dialogue between Asia and the West, or address any of the issues

international norms must always evolve through debate about different viewpoints in order to be able to maintain a consensus

Asian cultures often puts the good of the community over the individual, so individualistic human rights may be a problem such cultures

the strong individualistic ethos of the West may be seen as a hinderance to the foundation of their economic success by Asian countries

suggests that Asian countries should still sign up to the UN human rights covenants and then accommodate for their cultural and political concerns through reservations, derogations etc.

the West on the other hand will need to adjust to the fact that they need to acknowledge diversity of societies and cultures and accept that they are all equal

(Kausikan)

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It has its merits because it allows us to acknowledge differences, that some cultures/societies do things differently than we do.
However, it makes conversation and debate difficult and can lead to injustice being permitted.
Criticism should always be allowed, at least to some degree, as part of a larger conversation.

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"Enlightened ethnocentricity":
"the acknowledgment of equal validity of diverse patterns of life"

others have the right to be different, no matter if they are in the same or a different society

better approach than universality because that is based on rigid and exclusive ethnocentricity

(An-Na'im)

Moral systems are embedded in culture and these different cultures lead to different moralities.

but the recognition of different values in different societies does not mean that all these values need to be tolerated

Acts as a "counterpart to the arrogance and abusive effect of universalism".

(Dembour)

Critiques:
Can lead to indifference and inaction:
"calling for inaction when resistance is needed"
(Dembour)

Denies the moral right to make comparisons and to insist that there are some universal standards of right and wrong. Leads to nihilism?
(An-Na'im)

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The idea that there are absolute truths that apply to everyone is a great one. But how would you define those or should that even be done? (I always seem to come back to the problem of whether or not there should be set definitions.)
There is also, again, the issue of excluding certain people that can be found in approaches such as dignity and rationality. But here, whole cultures/societies might be partly precluded.

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Rights found in our common humanity - dignity principle.
→ centrality of the human being as a whole

Beyani: universal human nature, that can be explained by reason and rationality
→ stands against moral relativism, human nature can be objectively defined
(Lecture 3)

Critiques:
Ethnocentricity:

important for accepting our culture, which we need for our survival

becomes a problem when it is too rigid, breeding intolerance and hostility towards different cultures/ways of being/societies

main critique of universality

(Lecture 3)

Universality of human rights is only a theory, not a fact. There is a clear danger to not respect the ways of others, and it can lead to arrogance in thinking that the dominant position is the best position.
(Dembour)

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If we were to define human rights like this, then there is no way that a lot of countries would sign up to human rights treaties etc. And if they did, the content of such a treaty would probably be very small, because no state would ever allow others to have the right to heavily interfere in their national affairs.

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Looks at the question of when can a country interfere with another country's affairs to help protect human rights?

Beitz:

Human rights in international practice cannot be described as natural rights: they are not pre-institutional, they do not "belong" to people solely because of their common humanity, and they are not timeless.

Natural rights are supposed to be able to be claimed anywhere, at all times. This might mean that human rights should be too.

"The lack of timelessness is a problem only if we insist that human rights should be something they were plainly not meant to be."

Beitz proposes:

human rights are closely connected to dignity and they are of global concern → they are the basic requirements of global justice

if a country does not satisfy the conditions of human rights, then that triggers an international duty to act (leads to outside interference); human rights are meant to be of international concern

this interference does not always have to be negative, e.g. it could simply be assistance

it also does not have to lead to interference, and many political and practical considerations would be of importance

(Beitz)

This approach is more defensible than approaches based on philosophy, because no prior philosophical layer is needed to discover or derive human rights. (Lecture 2)

Problems?

Clear interference with state sovereignty

States would probably only accept a very limited list of human rights

(Lecture 2)

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This approach is very different from previous ones. But is every human right a right that has to be enforced by others? Overall, this approach seems a bit too imprecise.
(reminds me of the arguments made by both Pillay and Roth, that it is the state's responsibility to protect human rights)

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Human rights should be limited to those rights which impose a duty on others to respect or fulfil those rights.
→ shifts focus from the person who holds the human rights to the one who has to fulfil/protect them

Raz:

the key feature of human rights is that they are capable of creating a corresponding duty in someone else

Why should others have that duty imposed on them, have their freedom limited?

less thinking about what rights we are entitled to

effective enforcement is an essential criteria in determining what a human right is

Problems?
Example of right to health:

would not qualify as a human right because it would be impossible to enforce an international right to health

can only be enforced on a national level

Substance vs Enforcement:

even if not all of a right can be enforced some substance of it possibly can, e.g. a persons health cannot always be guaranteed but access to healthcare etc. can be guaranteed

(Lecture 2)

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The general idea of identifying basic interests that all human beings have in common is a good one, but I worry that the actual list might be rather short. Do all humans have the same necessary conditions under which they can grow and thrive?
I also agree with the criticism that economic and social rights would be largely excluded. This would very much limit the applicability of human rights.

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There are a range of different interests that we can identify and these form the core of human rights (these rights are universal).
→ contrasts with principles such as dignity and rationality because it does not emphasise a single value
→ similar to capabilities approach, both identify a set of basic interests that are crucial

Buchanan:

some interests are common to everyone and of such great moral concern that they should be given protection by the most important institutions

these interests are shared by everyone because they are necessary conditions for human growth and thriving

Advantages of this approach?

less exclusionary and opens up a wider spectrum of interests that are crucial to leading a fulfilling life

Problems?

Supports the approach that such rights should only be limited to civil and political rights, because it argues that the basic rights are what we consider universal (which economic and social rights are often not included in).

Some worry about the proliferation of human rights, the intrusion of human rights into other areas. This could water down the strength of human rights discourse ("rights inflation").

(Lecture 2)

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This approach has the advantage that it reflects the reality of our world better. Not everyone is the same and it is important to acknowledge that when talking about human rights, especially when trying to figure out what principles human rights are based on.
However, again, I am worried that this approach might also  limit the scope of rights available.
The heavy involvement of states needed for this could also be problematic.

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Sen:

it is central to human rights that an individual has the right to do and be whatever he chooses

this autonomy only exists within the options available to an individual in an unequal world

Nussbaum:

draws connection between autonomy and dignity

individuals are dignified, free and shape their own life in cooperation with others

we are not isolated from other people, relationships shape our lives and abilities

there should not be a distinction between different human rights

Everyone needs to be put in a position where everyone can lead a fulfilling life. Nussbaum suggests:

ten central human capabilities (instead of human rights)

essential to a life worthy of human dignity

material support from the state is needed, the state should always intervene

Problems?

some argue that the state should not have to intervene, this would limit the freedom of choice of individuals

(Lecture 2)

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One of the questions that this approach brings is if there should be a set definition of dignity. This would make it less controversial for judges to use it, but as with agency, a set definition might exclude some people.
As seen with the Wackenheim case, basing human rights on dignity can put states in a difficult position where they have to decide between an individual and society.

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"Inherent dignity" is mentioned in many human rights texts (e.g. UDHR Preamble).

Waldron: Human rights derive from the inherent dignity of the person and dignity gives us the specific content of rights.

McCrudden:

intrinsic worth of each human being that should be respected; some forms of conduct are inconsistent with this

the individual does not exist for the State, the State exists for the individual

Case: Wackenheim v France (2002)

'Dwarf-tossing' case

the decision was more concerned with the dignity of society rather than that of the individual

Problems?

judges using dignity opens up too much discretion (McCrudden)

(Lecture 2)

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Human rights as a protection of our agency is in general a good idea, but not every human being can be described as having agency. This approach opens up problems and questions about if all humans are protected by human rights.
Is it a good idea to make lists of rights and determine some of them to be "unacceptable" or "debatable"? Griffin seems to want to define human rights more clearly and I am not sure if that is the best way to go in order to protect as many people and different rights as possible.

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Griffin:
"Human rights can then be seen as protections of our agency - what one might call our personhood."

there are two grounds of human rights, personhood and practicalities: personhood generates the right and practicalities give them a determinate shape

three categories of agency: autonomy, welfare & liberty rights

human rights are there to protect our personhood, so there should also be "second-order" human rights for remedies of violations of such

goes through a list of unacceptable (e.g. claims to welfare rights) and debatable (e.g. compensation for a miscarriage of justice) items in international law

suggests that debatable cases should be accepted as human rights, even though they cannot be described as "protection of a component of human agency," because their aim often seems to have been the protection of liberty, autonomy and property

human rights is still a theoretical term and it needs to be given a "satisfactorily determinate sense"

(Griffin)

Normative Agency Theory: The agency to make decisions is what distinguishes us from animals and it fundamental to what it means to be human.
The basic principle shaping human rights derives from the fact of our humanity.
→ You can tell what a human right is if it supports or furthers normative agency.

Problems?
If you have rationality and autonomy as the basis for human rights then any person who is does not have these attributes (e.g. because of a disability) is excluded.

(Lecture 2)

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Justifications of / Approaches to Human Rights

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Justifications of / Approaches to Human Rights

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What are explanations that scholars have given to human rights?

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All three have different approaches to what human rights are for. What is common to all of them is the idea that human rights are there to protect people's freedom and work towards equality, especially where the law on the national level fails them.

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human rights defenders have to choose between political action, eg. advocacy or protest, or by asserting rights through legal process

"giving the problem a human face"

if human rights principles are contained in national laws, the potential for social justice increases

if this is not the case the international human rights system can protect against violations or offer redress

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"International human rights law sets forth the core obligations of governments toward their people, prescribing the basic freedoms that governments must respect and the steps they must take to uphold public welfare."

in some places there is no one on the national level who can or wants to hold the government accountable for human rights violations

international human rights law should be seen as a law of last resort in cases where domestic rights legislation fails

key to this enforcement pressure is exposure and shame; it is technically the job of the government to protect human rights

the biggest challenge is to convince the public that human rights violations are wrong, the public can influence the government

"Shame can be a powerful motivator."

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Human rights helps people claim the same rights and freedoms for everyone (equality).

Human rights jurisprudence and implementing mechanisms are a protective canvas that recognises everyone’s kinship in rights - this allows everyone to claim their entitlement to a life of dignity and to count irrespective of who they are and where they are from.

How can human rights be given effect without ranking them?

promising potential of the UN Human Rights Council: Universal Periodic Review, contributions by civil society, it is a standing body

Office of the High Commissioner: is in a special position to help both governments and individuals in protecting and promoting human rights

deterring violations with international criminal responsibility (International Criminal Court)

→ In the end, however, it is the states’ responsibility to promote and protect human rights. It is the individuals responsibility to assist them in fulfilling these obligations

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Three personal reflections

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Bates clarifies that because he is focusing on the origins of legal measures in human rights, his focus is on Western development and might show a Western bias.
This template is also definitely not a complete history of human rights (this would probably be impossible to make), and definitely very Western centric. But it shows the developments that I find the most important and interesting in the development of human rights.

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Nuremberg trials (1945): crimes of universal relevance; states for the first time agreeing to have their subjects be judged under international law
(Lecture 1)

UN Charter (1945): human rights officially a concern of the international community
→ members mostly required to "promote" human rights, but not too much explicit commitment
(Bates)

Universal Declaration on Human Rights (1948): treaty, no legal obligations → probably the only reason they got 48 states to sign on
(Bates)

International Bill of Rights: UDHR, ICCPR (obligation on state is immediate), ICESCR (obligation only to progressively realise to the maximum of its resources)
(Lecture 1)

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Concept of Westphalian sovereignty: states are protected from interference by other states → this clashes with human rights

19th century: states begin to interfere with other states, particularly in the common interest of humanity (eg. Britain outlawing the slave trade).

Early 20th century:

distinctly international movements such as the Women's Suffrage Movement

1920: formation of the League of Nations (first international legal organisation)

(Lecture 1)

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Hobbes (1651): "social contract" concept = the rulers' power to govern derives from the consent of those he governs

Locke (1690): natural rights; "the seeds to the idea of modern democratic governance"

US Declaration of Independence (1776) & French Declaration on the Rights of Man (1789): both reflect the idea of human rights as natural law

Criticisms:
Bentham: natural rights can cause great social damage (eg. by fuelling revolutions)
Marx: "privileged rights of the bourgeoisie"; these rights do not truly free the individual

(Bates)

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Concepts related to human rights can be found in ancient civilisations across the globe:

Babylonian Law Code of Hammurabi

various religious codes

→ You cannot trace the origins of human rights to any one culture, religion or region.

(Bates)

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What are some of the most important moments in the development of human rights?