Examples include the Law Code of Hammurabi from the eighteenth century BCE (which covered the protection of property, prohibition of murder and the presumption of innocence), or the Magna Carta of 1215, which is sometimes claimed to champion the common person against the state, but Bates claims that it was much more concerned with the protection of barons rather than the “common man” [Bates in Moeckli et al 3rd ed., Chapter 1, pg 4]. 

However, Thomas Jefferson often had 200 slaves at any given time (https://www.britannica.com/biography/Thomas-Jefferson/Slavery-and-racism), which makes me hesitant to respect him as a “founding father”.

Karl Marx criticised the French Declaration of Rights for being concerned only with the rights of the bourgeoisie, and not providing freedoms to the average individual. [Bates in Moeckli et al 3rd ed., Chapter 1]

Griffin’s definition of what should constitute human rights, is, as I understand it, based in a world where ones “basic needs” are provided for; that their welfare is fulfilled. He argues that certain rights in international documents should not truly be defined as “human rights” if they do not contribute nor diminish one’s personhood. An example he gave was Article 14 (6) of the International Covenant on Civil and Political Rights, which establishes a right to compensation [Griffin, 2001]. He argued that if a population’s personhood is achieved in all other ways, including minimum provision, then a lack of compensation would not be limited in their agency as they would already have their means provided for.

Griffin also focuses on the concept that rights based on fairness or in the interest of justice, should not be defined as human rights but as legal rights. In one way I do agree with Griffin that to give too many things the status of being a human right may water down the meaning, but that also is quite a pessimistic view. I believe that we should not chop down the tree before it is given the chance to grow, that we must try to aim for a better standard of life for all people and using human rights is one method of doing that.

Additionally, his criticization of aspirations being named as rights seems baseless to me. What are human rights if not an aim to achieve a world in which people do not suffer and have the ability to live a fulfilling life?

Griffin's focus on agency as the defining characteristic of humanity raises concerns about the exclusion of vulnerable groups such as young children and individuals with severe disabilities. These individuals deserve protection and rights, even if they don't fit the normative agency criteria.

Beitz asks the question of whether we wish to “think of human rights as natural rights or as something more ambitious” [Beitz, 2003]. I personally lean toward the latter, as human rights should inspire a better future rather than maintaining the current status quo. Human rights go beyond natural rights, aiming to create social conditions for dignified lives [Beitz, 2003].

I question the need to determine the origins of rights or their underlying reasoning. Why should human rights rely on divine reasoning or pre-civilization morality? We, as humans, shape our world and can establish what should be guaranteed. If we were to base our rights and aspirations on pre-civilisation, I wonder whether many of even the “natural rights” that philosophers claim would exist? On the contrary, some may argue that a lack of higher morality gives governments the power to give and take away human rights as they see fit.

In the case of Manuel Wackenheim v France, the UN Human Rights Committee prioritized society's dignitas over individual dignity. While there are merits to this decision, some, like Sandra Friedman, argue for a transformative approach that goes advocates for measures to ensure individual dignity alongside dignitas. [LW2207 Lecture 2, 21/09/2023]

The Punta Del Este Declaration provides a dynamic approach to dignity, recognizing its evolving nature. Treating human rights as living documents allows them to evolve with society, technology, and other changes.

Those who want to limit the list claim human rights are only those that impose duties on others and can be enforced through reputable, viable and just institutions [LW2207 Lecture 2, 21/09/2023]. If we were to reject all human rights that we struggle to enforce, we would find very few would survive. As Beitz said, human rights can be purely aspirational [Beitz, 2003].

Beitz argues that for anything to qualify as a human right, it must be an issue that concerns all governments on an international level. Human rights are something that all nations have an obligation to protect, both inside their own borders and beyond them. Human rights, according to Beitz, ought to be formulated in a way that compels the international community to take proactive steps towards preventing rights breaches and advancing the realisation of rights in communities where such rights are not fully guaranteed [LW2207 Lecture 2, 21/09/2023]. State sovereignty would be a severely restricting factor on this theory, as states would be unlikely to voluntarily accede [LW2207 Lecture 2, 21/09/2023]. On the other hand, is it really meaningful for states to acquiesce to certain human rights if no other state is ready to intervene in cases when those rights are violated?

Human rights aren't meant to be timeless, but that is not an issue if we approach them with the “living tree” theory, that is they should be interpreted in the circumstances and social environment of the time that is being read, rather than what was intended when it was written. One caveat I would add is that once established, rights cannot be reversed.

Philosophers often seem to fail to understand that legal human rights are a separate concept to the philosophical concept of human rights. While the philosophical underpinning may provide durability from the power hungry, rejecting legally established human rights for not fitting a rigid philosophical design is dogmatic and unconstructive [Beitz, 2003].

Cultural relativism has been one solution proposed to the rigid ethnocentric universalist view of human rights. An-Na’im refers to it as enlightened ethnocentricity. Cultural relativism involves recognising, respecting, and taking note of other lifestyles, highlighting the worth of all cultures and acceptance of customs that are distinct from your own. However, cultural relativism walks a fine line. It can breed tolerance of injustice, even endorsement or facilitation. If we cannot compare cultures and call out differences, we may fail to identify injustices [LW2207 Lecture 3, 29/09/2023].

Kausikan’s article highlights Asian’s states “different standards” of human rights and criticises a Western-centric interpretation of human rights. He also criticises the West, particularly America, of having “a missionary zeal to […] remake the world in its own image.” [Kausikan, 1993]

Kausikan's argument can come across as evasive, and an attempt to paint rich Asian nations as victims. I reject his criticism of NGOs, young people and activists now push to ensure that affected and marginalized voices are at the forefront of discussions, such as Fridays For Future’s focus on MAPA (Most Affected Peoples and Areas) voices. Additionally, the statement that Western definitions of freedom and democracy are “best foregone in the interest of promoting real human rights” an absurd one that lacks clarity and precision. What are “real” human rights? 

Kausikan’s strongest point suggests that the West should help oppressed people within their existing systems to improve their situation, rather than making them a political playground [Kausikan, 1993]. This approach parallels the "just transition" concept in addressing climate change without sacrificing livelihoods. In relation to human rights, it is more prudent to fight for better respect than to tear down the system in which they exist altogether. Exploitation is common in garment manufacturing industry, particularly in South Asian countries, but if we were to insist that all companies pull their contracts with factories in those nations, those same garment workers who were being exploited would be left without a source of income completely. Instead, NGOs should encourage companies to engage with the factories they contract out to and the governments of the respective states to ensure workers’ rights are protected. 

France's laws restricting Muslim religious wear, such as hijabs and niqabs, have been criticized for being fundamentalist and ethnocentric [Hamza Yusuf, LW2207 Lecture 3, 29/09/2023]. Just as the Islamic Republic in Iran must be criticised for forcing women to wear headscarves, France must be criticised for forcing women to go without. Both are examples of ethnocentrism resulting in restrictions of freedom.

Mutua explores the metaphor of “savages, victims and saviours” in relation to human rights. He questions the motivations behind campaigns, specifically those on Female Genital Mutilation, branding it as a crusade of Western countries that is inherently racist [Mutua, 2001]. It does appear hypocritical, particularly when coming from the United States, where over 80% of males are circumcised and the practice is widely accepted. Western citizens will quickly denounce female circumcision as barbaric but refuse to consider whether their own cultural practices could be construed the same way. Mutua describes human rights legislation as carrying on the custom of imposing Eurocentric standards worldwide and meddling in the affairs of developing nations [Mutua, 2001]. Mutua seeks that instead that human rights be led by local activism that promote local innovation and perspective on social justice and transformation [Mutua, 2001].

Gearty provides a response to the claim that human rights are solely a Western construct. He submits that the language of human rights has been and continues to be misused to underpin abuses of power by the Global North, but that this perspective must be profoundly rejected. He advocates for an understanding of human rights that drops traditional North assumptions and instead views them as a type of language, “a shared tongue” [Gearty, 2008]. To do this, the Global North must also accept and acknowledge the history and misuse of the term. Gearty calls on An-Na’im’s and Deng’s academic work on this approach, which he describes as providing energy that will rescue human rights and establish their legitimacy across the world. [Gearty, 2008].

Though I recognise the need for critique and acknowledge that many human rights campaigns take on a form of neo-colonialism, I also do not think it is beneficial to tear the whole thing down. If we can facilitate dialogue that will allow us to build and develop the human rights corpus, the conclusion will be much more satisfying.

This is a complex issue and I struggle to identify how exactly we can define human rights while respecting cultural differences without allowing for injustice. Identifying whether a cultural practice is harmful from a Western perspective or universally can be problematic, compounded by claims that non-Western voices that agree are not modernised but colonised. The issue of universalism and diversity may be a paradox that will continue for many years to come.  An-Na’im also highlights that individuals and groups who are in power have a tendency to “monopolize the interpretation” of culture to their advantage, and that this must also be considered. He holds that there are acceptable means of influencing a society's moral norms without imposing one's will; support can be provided, but external imposition cannot and ought not to be used to resolve the internal struggle [An-Na‘im, 1995].

1. international conventions

2. international custom

3. the general principles of law recognised by civilised nations

4., judicial decisions and the teachings of the most highly qualified publicists

 

There is much debate about whether the statute of the ICJ is an adequate authority on sources for contemporary IHRL [Chinkin in Moeckli et al 3rd ed., pg 64]. Fragmentation of international law into different regimes has seen conflicting mandates and principles develop. Most notably, the core concept of state sovereignty is challenged and stretched in the human rights regime [Megret in Moeckli et al 3rd ed., pg 87]. The challenge with this conflict is to ensure that human rights law is not absorbed into the language of traditional international law, and retains its “special character”.

The “special character” of IHRL focuses on the nature of human rights obligations being a promise to the international community of a state’s treatment of a third party, the individuals in their jurisdiction [Megret in Moeckli et al 3rd ed., pg 88-89]. The term "special character" also suggests that these obligations are innate ethical responsibilities regardless of a state's agreement to be bound by them, and as such, treaties are only a proclamation of those duties that already exist [Megret in Moeckli et al 3rd ed., pg 90-91]. This is the basis on which the erga omnes status of the human rights regime is built.

This “special character” of human rights, particularly the universal aspect, is challenged by the ability of states to make reservations to treaties. If a state signing up to a treaty wants to change, modify, or exclude clauses it can enter a reservation. Reservations give the benefit of allowing IHRL to be flexible but this tendency for states to cull their obligations or take creative interpretations can diminish the essence of a treaty [Megret in Moeckli et al 3rd ed., pg 92].  Critics have expressed concern over the abundance and scope of reservations which are allowed, and urge states and international treaty bodies to limit them [Megret in Moeckli et al 3rd ed., pg 93-94]. 

Many treaty bodies do have procedures in place for limits on reservations, but many reservations still slip through the cracks that should not be allowed to. Perhaps this already exists, but a database recording reservations that was easily accessible to the public would allow for states to be held accountable for any reservations they make. This would also counteract the ability of states to gain positive reputations for ratifying treaties that are severely watered down.

 

The “special character” of international human rights law also becomes obvious in relation to remedies. Where ordinarily states would suspend, terminate, or use countermeasures when international law was breached, these measures are not suitable for the human rights regime. It is not possible for other states to terminate or suspend human rights treaties if a state breaches their obligations, it clearly violates the treaties’ purpose. Countermeasures are not appropriate either, for similar reasons [Megret in Moeckli et al 3rd ed., pg 104-105]. 

 

Withdrawal additionally has different rules under the human rights regime. While some instruments do have clauses that allow for denunciation, it is widely regarded that it is not an option for human rights treaties. A key example being when North Korea tried to withdraw from the ICCPR, but was refused unless there was unanimous agreement from all state parties [Megret in Moeckli et al 3rd ed., pg 106-107].

Customary international law is unwritten and difficult to identify but is binding on all states. It requires two elements, state practice and opinion juris. To a certain extent customary law exists in a paradox, due to the requirement for opinion juris that means states must consider something to already be law before it can become law [LW2207 Lecture 4, 06/10/2023].

Jus Cogens norms are the apex of formal sources [Chinkin in Moeckli et al 3rd ed., pg 73]. They represent fundamental values and are intransgressible. As such they technically override individual state consent, but are challenging to establish [Chinkin in Moeckli et al 3rd ed., pg 73].

The reference to general principles of law is one that is unclear and rarely used. Debate continues over whether they take their initial meaning of encompassing concepts like good faith and res judicata, or if they have evolved in their own right to be intrinsic to the international legal system [Chinkin in Moeckli et al 3rd ed., pg 74].

 

Though judicial decisions are just a "subsidiary means" of establishing international law, they still have significant legal weight and expedite the development of customary international law. Even across jurisdictional lines, judges will call on foreign decisions as they may feel it “bestows legitimacy on their own judgment.” [Chinkin in Moeckli et al 3rd ed., pg 77].

Writings of the “most highly qualified publicists” may have originally been intended to mean academics, but today reports from expert bodies from treaty committees to NGOs provide much more influence in the development of international human rights law, drawing together multiple other formal sources and soft law to base their arguments upon [Chinkin in Moeckli et al 3rd ed., pg 76-78].

 

Outside of the sources named in the ICJ Statute, other sources that may be considered are decisions and statement of treaty bodies, resolutions of international institutions, and ‘Soft law’ such as guidelines or instruments from UN global summit meetings [LW2207 Lecture 4, 06/10/2023].

Human rights may be best characterized as political movement rather than a legal project, but human rights law law serves as a means of transforming aspirational objectives into genuine, effective action [LW2207 Lecture 5, 12/10/2023].

One method of human rights enforcement lies in the charter bodies of the UN. While the UN Charter does commit itself to a universal respect for human rights, it is tempered by the caveats of sovereignty and non-interference. These caveats lead to a reduction in the powers that the UN has available to implement human rights law. [LW2207 Lecture 5, 12/10/2023].

The Charter-body system allows for better cooperation and communication and is appropriately flexible for the nature of the human rights regime. However, it struggles with harsher mechanisms of enforcement. It is not a legal system and as such the basis of its enforcement methods is political, focused on persuasion and shame to coax states into cooperating with its obligations. 

 

With varying perspectives, Member states endeavoured to establish a process that would evaluate every state, guaranteeing that no influential nation would evade examination [Gaer, 2007]. The Universal Periodic Review (UPR) is a peer review that is required by all 193 UN member states every 4.5 years [LW2207 Lecture 5, 12/10/2023].

The universal nature of the UPR is something to be celebrated, as it combats the previous criticisms of the Commission that the focus was purely on the Global South and never on Western countries. Criticisms of the UPR process are that there is still a level of politicisation, with friendly states banding together in an attempt to drown out criticism, as well as there possibly being too many recommendations in the final report, especially due to the lack of implementation by states currently seen [Connors in Moeckli et al 3rd ed., pg 372-375].

Suggestions have been made to reduce the workload by introducing alternative triggers such as a dossier or questionnaire to reduce the already heavy workload for states [Gaer, 2007]. However, this may reduce the universal coverage aspect of the UPR procedure and could see a very quick return to the criticisms of politicisation faced by the HRC’s predecessor. A compromise may be instead of an original self-report states could present a dossier of documents that would include other reports produced for treaty bodies and information from various sources such as national human rights institutions and NGOs, provided that the dossier included all the information required. 

Walter Kälin proposed that the UPR should result in specific conclusions that includes methods of overcome challenges and recommending technical assistance or advisory services [Gaer, 2007]. This addition would contribute to the HRC and UN’s desire for cooperation over confrontation, as to provide feedback without solutions is not constructive criticism.

The UPR does reflect a significant improvement in that it applies equally to all member states of the UN, which diminishes the possibility of unfair focus on non-Western states and a Western hegemony over the human rights regime. Unfortunately, however, it can be criticised for lacking in follow up. Reports often have a high volume of recommendations but lack specific methods of improving a countries human rights performance which leads to poor levels of implementation. If one was to be overly pessimistic, it could be described as both the UN and member states trying to appear as if they are actively working to improve human rights, while in reality very little changes.

 

There are a number of other special procedures in the mandate of the HRC, such as special procedures in emergency/crisis situations, country and ‘thematic’ mechanisms, Special Rapporteurs, and independent commissions of inquiry, fact-finding missions and expert groups [LW2207 Lecture 5, 12/10/2023]. Special procedures have been described as the “eyes and ears” of the HRC and can act as catalysts for positive change, but they also face challenges with state cooperation, inadequate resources and limited follow up capacity [Connors in Moeckli et al 3rd ed., pg 381].

 

Through the Complaint Procedure, victims, NGOs, or those with firsthand information can file complaints against consistent patterns of noncompliance. Although there are critiques of its effectiveness, the process processes more than 10,000 complaints a year, and can remedy human rights violations in the early stages [Connors in Moeckli et al 3rd ed., pg 393 – 395].

The Responsibility to Protect doctrine allows the UN to interfere to protect citizens when states were unwilling to, but it was controversially interpreted by NATO forces in Libya. NATO undertook offensive operations and oversaw a regime change, which was far beyond what the Security Council authorised. This has led to a much more cautious approach and Security Council deadlocks [LW2207 Lecture 5, 12/10/2023].

While the Security Council has the power to intervene in extreme situations where human rights violations cause a threat to peace and security, the veto power held by the 5 permanent members gives specific countries too much power over the decision-making process. Just recently on Wednesday 18^th October 2023 we saw the United States veto a decision by the Security Council to call for humanitarian pauses to deliver lifesaving aid to millions in Gaza. To allow one country, particularly one that funds the Israeli military, to veto a Security Council decision is absurd. Especially when that power is held by very few nations and is regularly abused. If the Security Council cannot adequately deal with human rights concerns of such a grave nature, then it is most definitely not an appropriate body for general concerns of human rights.