UNIT ONE

UNDERSTANDING HUMAN RIGHTS

1. Meaning of Human Rights

Human rights are being violated all over the world. Human rights are a matter of law, but
they have increasingly become a matter of politics as well. Lawyers, politicians and
governments, non-organizations, men and women, the elderly as well as children,
violators as well as victims-all of them are involved in human rights. Human rights are
internationally agreed values, standards or rules regulating the conduct of states
towards their own citizens and towards non-citizens. Human rights are, in the words
of the preamble of the Universal Declaration of Human Rights: ‘a common standard of
achievement for all peoples and all nations’. These rules, which states have imposed upon
themselves, serve to restrict the freedom of states to act towards their entire population:
citizens as well as non-citizens, men as well as women, adults as well as children, whites
and non-whites, believers and non-believers, married persons and the unmarried. This
situation is different from the past, when states, or rather their princes, were absolute
sovereign who could treat their subjects in any way they wanted. Nowadays, human
beings have rights: human rights.
The term “human right” came into being very recently particularly after WWII. It
replaced early notions like “Natural rights”/ “the rights of man ”. It has been stated
that the history of rights reflects the various demands forwarded by human beings at
different times and conditions. Human beings demand the realization of diverse values to
ensure their individual and collective being. In addition, the prevalence of exploitation,
oppression and persecution led to the emergence of the consciousness about human
rights. Human rights are understood to represent individual and group demands shaping
and sharing of power, wealth, enlightenment and other values (values of respect and its
constituent elements of reciprocal tolerance, mutual clemency). 0917832928
Human rights also refer to the "basic rights and freedoms to which all humans are
entitled." Examples of rights and freedoms which have come to be commonly thought of
as human rights include civil and political rights, such as the right to life and liberty,
freedom of expression, and equality before the law; and economic, social and cultural
rights, including the right to participate in culture, the right to food, the right to work, and
the right to education and equality before the law.

A more common definition of human right is that they are universal legal
guarantees protecting individuals and groups against actions by governments,
which interfere with fundamental freedoms and human dignity. Human rights law
obliges governments to do something, and prevents them from doing others. They are
also universal moral rights that belong equally to all people simply because they are
human beings. In other words, they are inherent. Human rights are also often described as
generally accepted principles of fairness and justice.
Human rights are frequently held to be universal in the sense that all people have and
should enjoy them and to be independent in the sense that they exist and are available as
standards of justification and criticism whether or not they are recognized and
implemented by the legal system or officials of a country.
Earlier in this century, the term “human rights ” was defined as those rights guaranteed by
the International Bill of Human Rights (comprised of the Universal Declaration of
Human Rights, the International Covenant on Economic, Social and Cultural Rights, and
the International Covenant on Civil and Political Rights with its Optional Protocols).
Over the years, however, international and regional human rights instruments have made
more explicit the rights set forth in the International Bill of Human Rights. “Human
rights” are now defined with far more detail and specificity. International human rights
law is, therefore, more protective of vulnerable individuals and groups, including
children, indigenous groups, refugees and displaced persons and women. In addition,
some human rights instruments have expanded the definition by elaborating new rights.
Most human rights are perceived as individual rights vis-à-vis the Government, human
rights norms may also apply to non-State actors (such as armed opposition groups,
corporations, international financial institutions and individuals who perpetrate domestic
violence) and to those who commit human rights abuses. The campaign to abolish
slavery, one of the oldest efforts to protect human rights, was an attempt to prevent
private actors from keeping or trading in slaves.

By Common Article 3 of the 1949 Geneva Conventions and their 1977 Protocols,
international humanitarian law applies to armed opposition groups. Further, a series of
treaties exist relating to hijackers, kidnappers of diplomats, etc. More recently,
international human rights norms have been addressing the responsibility of governments
to restrain individuals from committing human rights abuses in the areas of domestic
violence, female genital mutilation, etc.
Human rights tell states what they may not do (state abstention), but also what they are
supposed to do (state obligations). These prohibitions and obligations are strongly
interrelated. For, example, states may not summarily, arbitrarily arrest people, or put
them to death, they may not torture people, they may not deny them freedom of
expression and freedom of association and peaceful assembly. On the other hand, they
must care for fair trials, for the equal protection of the law, for a minimum standard of
living, including food, clothing, housing, medical care and education.

What is the difference between the concepts of human rights and

human rights law?
Human rights are legally guaranteed by human rights law, protecting individuals
and groups against actions which interfere with fundamental freedoms and human
dignity. They are expressed in treaties, customary international law, bodies of
principles and other sources of law.

Human rights law places an obligation on states to act in a particular way and
prohibits states from engaging in specified activities. However, the law does not
establish human rights. Human rights are inherent entitlements which come to every
person as a consequence of being human. Treaties and other sources of law generally
serve to protect formally the rights of individuals and groups against actions or
abandonment of action by governments which interfere with the enjoyment of their
rights.
1.1. Historical and Philosophical Foundations
There are different arguments on the origin and philosophical foundations of human
rights. Some argue that human rights originated in the liberal political tradition of the
West, whereas as others propose that human rights have universal origin and multiple
justifications. Now let us see each turn by turn.

1.1.1 The Western Tradition

The two most important historic human rights documents are of western origin: the
Virginia Bill of Right of 1776, which was incorporated in 1791 in the United States
Constitution, and the French Declaration of the Rights of Man and Citizens of 1789.
Both documents contain a list of human rights in the sense of human liberties. Many
of these rights are based on the writings of political philosophers such as John
Locke, Montesquieu and Jean-Jacques Rousseau.
The study of the history and philosophy of human rights is mainly related to the liberal
political philosophy of the West, particularly the revolutions in France, England and
North America. These developments in Western Europe and Northern America represent
the demands of people against their rulers. The underlying objectives were to protect the
citizen against arbitrary power and establish rule of law, i.e. constitutionalism.
A detailed formulation of the liberal political philosophy as applied to the specific
problem of human rights may be found in the French Declaration of the Rights of Man
and Citizen of 1789 and particularly in its second article: ‘The aim of all political
association is the conservation of the natural and inalienable rights of man.
These rights are liberal, property, security and resistance to operation.’
The Declaration doesn’t state why these rights are ‘natural and inalienable ’. No doubt its
authors would have considered that to be self-evident. Many believed that they can be
deduced from the nature of man as a conscious and intelligent being, others, following
Aristotle, from his nature as a political animal, yet others, drawing inspiration from the
Bible, from the nature of man created by the Almighty in his own image. The doctrine of
natural law also contributed to the belief in ‘natural rights’.
The doctrine of natural law holds that there are laws of nature or laws of God above
and beyond positive law made by man, and these laws are the basis of certain rights
and duties. This belief has even found expressions in the 20 th century constitutions of
some European countries, for example, the 1937 Constitution of Ireland. The notion of
natural rights is an acknowledgement that there exist certain rights antecedent and
superior to all positive law.
The French Declaration proclaimed a number of entitlements which are now
generally called Civil and Political rights. These include, the basic principle that all
men are born and remain free and equal in their rights, including equality before the law,
freedom from arrest except in conformity with the law, the presumption of innocence,
protection against the retroactivity of the law, freedom of opinion, freedom of expression,
and the well known definition of liberty as freedom to do anything which is not harmful
to others.
The French Declaration of 1789 constituted the proclamation of rights, which is the most
widely known and the most far-reaching in its consequences in Europe and beyond. Its
impact on the French nation and on other people struggling against authoritarian
governments was such that Lord Action, a historian, described it as ‘a single confused
page .that outweighed libraries and was stronger than all the armies of Napoleon’.
Other historic texts have also incorporated the notion of human rights. In England, the
concept of human rights existed at least since the time of King John who in 1215 was
forced to sign the Magna Carta, also known as the Great Charter. It enumerates a
number of what later came to be thought of as human rights.
It guaranteed to the citizen freedom from imprisonment or from dispossession of his
property and freedom from prosecution and exile unless by the lawful judgment of his
peers or by the law of the land. It also included a formulation of the right to fair trial in
the famous words: ‘To none will we sell, deny or delay right of justice’.
In 1628 the English parliament adopted petition of rights that prohibited the king from
levying taxes and imprisoning any person without charges or law. The 1688 Glorious
Revolution led to the Bill of Rights of 1689 (just a century before the French
Revolution) which assured the supremacy of parliament, the right to free election,
freedom of speech, the right to bail, freedom from cruel and unusual punishment
and the right to trial by jury. The independence of the judiciary and freedom of the
press were established shortly thereafter.
The philosopher John Locke devised a seminal political theory to sustain constitutional
arrangements. He held that sovereignty pertains not to the monarch but to the people as a
whole, and that government is an instrument for securing the lives, the property and the
well-being of the governed without enslaving them in any way. ‘Government is not their
master; it is created by the people voluntarily and maintained by them to secure their own
good’. Locke argued, mainly in his writings associated with the Glorious Revolution that
certain rights self-evidently pertain to individuals as human beings (because they existed
in the ‘state of nature’ before humankind entered to civil society); that chief among them
are the rights to life, liberty and property; that, upon entering civil society (pursuant to a
‘social contract’), humankind surrendered to the state only the right to enforce these
natural rights, not the rights themselves; and the state ’s failure to secure these reserved
natural rights (the state itself being under contract to safeguard the interests of its
members) gives rise to a right to a responsible, popular revolution. The theory of reserved
natural rights is the basis of the maintenance of fundamental liberties; they belong to the
individual by nature, have not been surrendered to the community and therefore cannot
be limited or denied by the state.
This political philosophy of Western Europe was inherited and found expressions in
North America. Thomas Jefferson asserted that the Americans were a ‘free people
claiming their rights as derived from the laws of nature and not as a gift of their Chief-
Magistrate’.
The American Declaration of rights of 1774 considered ‘the immutable laws of nature, as
the principal source from which the colonies derived their rights. When Jefferson came to
draft the Declaration of Independence in 1776 (sometimes referred to as the ‘Virginia Bill
of Rights’), he referred to the necessity for a people ‘to assume among the powers of the
Earth the separate and equal station to which the Laws of nature and of Nature ’s God
entitled them’.

The belief in natural rights was reflected in the declaration in the famous words; ‘We hold
these truths to be self-evident, that all men are created equal, that they are endowed by
their Creator with certain inalienable rights, that among these are life, liberty, and the
pursuit of happiness’. This has much in common with the French Declaration, particularly
the idea that the rights of man are ‘natural and inalienable ’. It is observed, however, that
Jefferson selects the three cardinal rights, i.e. life, liberty and the pursuit of happiness,
whereas the French declaration chooses liberty, property and security. However,
‘resistance to oppression’ contained in the French declaration also appear in the
Declaration of Independence in a different style along the Lockean philosophy, ‘that to
secure these rights governments are instituted among men, deriving their just powers
from the consent of the governed; that whenever any form of governments becomes
destructive of these ends, it is the right of the people to alter or abolish it .. ’. The
Declaration contained other rights. However, it didn ’t form part of the positive law, and it
was not made part of the Federal Constitution drafted in 1787, which was criticized for
not including a statement of fundamental rights. But through amendments fundamental
rights were included in the constitution, which came into force in 1791, and are generally
known as the Bill of Rights, including civil and political rights.

The developments in France, England, and North America tell us rights represent
people’s demands against their rulers. The objectives were the same: to protect the
citizen against arbitrary power and establish rule of law. The notion of natural
rights had played a significant role in this struggle.
The concept of natural law as implying natural rights was elaborated in the 17 th and 18th
century by well-known philosophers. Particularly to be noted are the writings of the 17 th
century English philosopher John Locke and the works of 18 th century philosophers
including Montesquieu, Voltaire and Jean-Jacques Rousseau. John Locke and other
philosophers have formulated and postulated the notion of natural rights as derived from
natural law as the underlying principle of any political association. This suggests that
individuals have natural rights and the legitimacy of the government depends on the
protection of these naturally existing rights.

However, other philosophers have rejected the concept as baseless. In England,

Conservatives Edmund Burks and David Hume criticized the concept because the fear
that the public affirmation of natural rights would lead to social upheaval. Jermy
Bentham, one of the founders of Utilitarianism, criticized the notion of natural rights as
follows; ‘Rights is the child of law; from real law come real rights; but from imaginary
laws, from ‘law of nature’ come imaginary rights . A natural right is simply non-sense.
David Hume concurring to this idea stated ‘natural law and natural rights are unreal
metaphysical phenomena’. John Stuart Mill has proclaimed that ‘rights ultimately are
found on utility’ thus suggesting the notion of natural rights. Others have emphasized that
‘rights are a function of cultural an environmental variables unique to particular
communities’. Rejecting the notion of natural rights, the Jurist John Austin and the
philosopher Ludwig Wittgenstein insisted, respectively, that the only law is the command
of the sovereign’ (a phrase of Thomas Hobbes) and that the only truth is that which can be
established by verifiable experience.

Because of these and other factors, the idea of natural rights had become a matter of
general skepticism. But the role it had played in the struggle of people for freedom and
equality, and its contribution to modern human rights conception is undeniable. Of
course, the notion of natural rights and the 17 th and 18th century revolution in the West
together make up the main stream of historical and philosophical foundation for the
modern idea of human rights. Some even suggest that it is the mainstream conception,
which, after the horrors of WWII, found expression in the Universal Declaration of
Human Rights of 1948.

1.1.2 The Universal Tradition

As already stated some people argue that human rights have their origin not only in the
west but also in non-western societies and cultures. They stated that other societies had
some form of concern for the protection of the individual and the limitation of power of
rulers even if they might have not used the language of ‘rights’.
At the International Conference on Human Rights in Tehran, in 1968, the Shah of Iran
noted in his opening address that the precursor of the celebrated documents (the UDHR,
ICCPR, ICESCR) recognizing the rights of man was promulgated in his country by Cyrus
the Great about 2000 years ago. The author Christian Dubie has recounted the
magnanimity and clemency of Cyrus to subject peoples-in marked contrast to the practice
of earlier conquerors- and particularly his respect for their religion. The author deduced
from the ‘Charter of Cyrus’ the recognition and protection of what we now call the rights
to liberty and security, freedom of movement, the right to property, and even certain
economic and social rights. Others also quote different sources showing the protection of
some rights.

One of the Pharaohs of Egypt has been quoted as giving the instructions that ‘ When a
petitioner arrives from Lower or Upper Egypt Make sure that all is done according to
the law, that custom is observed and the right of each man respected’.

The code of Hammourabi, king of Babylon 2000 years before Christ, recording the
mission of the monarch reads as ‘to make justice reign in the kingdom, to destroy the
wicked and the violent, to prevent the strong from oppressing the weak .to enlighten the
country and promote the good of the people’. This statement signifies the protection of
certain rights.

It has also suggested that the essential problem of Sophocles ’ play Antigone is the
perennial conflict between the positive law of sovereign maintaining order in his country
and the unwritten law of gods or of nature which commands respect for the dead and love
of a brother, which can now be understood as the right to practice once religion.

Arguably, the number of culture which have been contributed to the elaboration and
dissemination of the ‘rights of man’ ‘natural rights’ or ‘human rights’ is very large. In
International Human Rights Year in 1968, UNESCO published a collection of texts
gleaned from different cultural traditions and periods of history, which tried to show the
universality of the notion of individual rights. Though it may not be correct to all human
societies have subscribed to similar values, one can conclude that the moral worth of the
individual is an idea which no culture can claim as uniquely its own.

The idea of individual worth can be found in the work of sages, philosophers, prophet ’s
and poets from different countries and many faiths in all continents. It is therefore
apparent that the premise for human rights is as old as history itself, because it concerns
the need to protect the individual against the abuse of power by monarch, tyrant or the
state. It has been suggested that the focus, in studying the history and philosophy of
human rights, on the liberal philosophy of Western world is not because they have any
monopoly of the subject, it is rather because they have produced its best-known
formulation and instituted the most effective systems of implementation.

1.2. Classification of Human Rights

The classifications of human rights facilitate our understanding of the contents of human
rights. However, there is no complete agreement on the classification of human
rights. This is because the difference on the grounds for and the purposes for
classifications. For instance, based on the type of the right holder human rights can
be classified into; individual rights and group rights. Human rights can also be
classified based on the type of state obligation as negative rights and positive rights.
How do we classify human rights?
However, the most-widely classification is the idea of three-generation rights proposed
by the French jurist Karel Vakas. This is a classification of rights based on their
evolution/generation in human history. He was inspired by the three themes of French
Revolution; Liberty, Equality and Solidarity.
According to Vakas’s classification, human rights are classified into three
generations of rights.
 First generation rights (the ‘classic’ human rights). They include civil and
political rights
  Second generation rights include economic, social and cultural rights
 Third generation rights include solidarity rights/collective rights
However, some scholars assert that the term ‘generation’ is somewhat inappropriate. It
suggests a succession of phenomena, whereby a new generation takes the place of the
previous one. That is, however, not the case with the three ‘generations ’ of human rights.
On the contrary, the idea is rather that the three ‘generations ’ exist and be respected
simultaneously. To that effect, the word ‘generations’ should have been replaced by
‘categories’.

1.2.1 First-Generation Rights

First generation rights include civil and political rights. They are primarily the result of
the 17th and 18th century reformist theories associated with the English, American and
French Revolution. They are the result of liberal political philosophy of individualism. It
has been suggested that the realization of these rights require state abstention rather
than state intervention. However, civil and political rights can not be realized by mere
non-interference. For example, the right to security and the right to fair and public trial
necessarily require positive state action.
The rights contained under Article 2-22 of the UDHR and most of the rights contained in
the ICCPR may be classified as first-generation rights.
First-generation rights (Core rights) are rights that are indispensable for an
existence in human dignity and therefore need absolute protection.
They First-generation rights include:
 The right to life
 The right to liberty and security
 The right to equality
 Freedom from racial and other forms of discrimination
  Freedom from slavery or involuntary servitude
 Freedom from torture and from cruel, inhuman or degrading treatment or
punishment
 Freedom from arbitrary arrest, detention or exile
 The right to fair and public trial
 The right to privacy
 Freedom of movement
 Freedom of opinion and expression
 Freedom of peaceful assembly and association
 The right to participate in government and equal access to public services
 The right to property

1.2.2 Second Generation rights

They include economic, social and cultural rights. The origin of this generation of rights
is associated with the socialist movements of the 19 th century and the 1917 Bolshevik
Revolution. The realization of these rights requires state intervention. These rights are
to be implemented progressively depending on the availability of resources. However, the
right to equality and the principles of non-discrimination has to be implemented
immediately. However, the state has not only positive obligation, but also negative
obligation, i.e. the obligation to refrain from violating these rights, particularly from
taking what are called retrogressive measures.

The rights contained under Article 22-27 of the UDHR and most of the rights contained
in the ICESCR may be classified as second-generation rights.
These Second-generation rights include:
 The right to work and the ‘right in work’
 The right to form/join trade unions
 The right to education
 The right to social security
  The right to health
 The right to adequate standard of living
 The right to participate in cultural life

Moreover, cultural rights include the right to participate in the cultural life of one ’s
community, to share in scientific advancement and the right to the protection of the moral
and material interests resulting from one’s scientific, literary or artistic production.

1.2.3 Third-Generation rights

These include collective or group rights. Some of these rights are associated with the
emergence of Third World nationalism and its demand for global redistribution of power,
wealth and other values.
The third-generation rights include, but not limited to, the following;
 The right to self-determination ( political, economic, social and cultural self-
determination)
 The right to development
 The right to participate in and benefit from the ‘common heritage of mankind’
 The right to peace
 The right to healthy and balanced environment
 The right to humanitarian disaster relief
 The right to one’s own natural resources
1.3 Basic Features of Human rights
Human rights have the following three basic features. These are: Human rights are
universal, natural and inalienable and interrelated, interdependent and indivisible.

A. Human rights are universal. They are rights to which every human beings are
entitled irrespective of their difference in their sex, race, religion, nationality, social
origin, color etc. We have these rights by virtue of being a human. The universality
character calls for their respect and protection at all places and times. However, there are
some challenges to the universality of human rights. Because of the existence of various
cultures across the world, proponents of cultural relativism argue that human rights are
relative to culture of a given society and cannot be universal. Concerning to this
controversy, the 1993 Vienna Convention on Human Rights asserts that ‘human rights
and fundamental freedoms are the birth rights of all human beings, and the universal
nature of the rights freedoms is beyond question’. Therefore, the universality of human
rights has generally been accepted.
B. Human rights are natural and inalienable. As they are derived from inherent
dignity of human beings, human rights exist by nature. They are neither given nor
deprived. By inalienability, we mean that nobody can deprive anybody of these rights and
nobody can renounce them by him/herself. Therefore, what a political society does is not
to grant these rights to human beings but to recognize them and guarantee their respect
and enforcement through its laws and institutions.
C. Human rights are interrelated, interdependent and indivisible . The respect
for human dignity requires the recognition and respect of the civil, political, economic,
social, cultural and other demands. All these demands of human beings deserve due
attention. The recognition and realization of economic and social rights is necessary for
the realization of civil and political rights and vice versa. The recognition and realization
of one right cannot be separated from the other. Therefore, all different sets of human
rights shall be recognized, respected and protected.

In addition to the above three basic characteristics, human rights have the following
features:

A. Human rights are eternal. As far as human society exists, human rights continue
to exist. In addition, any change in government and any change in social,
political/economic outlooks do not have any impact on human rights. This feature can be
subsumed in the universal character of human rights mentioned above.
B. Human rights contain the principles of equality and non-discrimination. There are no
human beings who are more than others. They have all equal dignity. Therefore, equal
dignity requires equal respect and treatment. Human rights are rights all human beings
have and any form of discrimination is not acceptable. Differential treatments are
justified if and only if there are well-grounded reasons (For example, well debated case
of affirmative action).
C. Human rights is not absolute. Rights are subjected to limitations/restrictions whenever
such is necessary to protect some legitimate public or individual interest. For instance,
the right to freedom of expression can be restricted to protect national security, public
order, public morals, or the reputations/rights of others.
Therefore, some of the most frequently cited characteristics of human rights are as
follow:
 focus on dignity of the human being
 legally protected
 internationally guaranteed
 protect the individual and groups
 oblige States and State actors
 cannot be waived/taken away
 equal and interdependent
 UNIT TWO
INTERNATIONALIZATION OF HUMAN RIGHTS
2.1. The Geneva Conventions
Geneva Conventions are series of international agreements that created and developed
international humanitarian law to protect wounded combatants and those who assist them,
prisoners of war, and civilians during times of war or other conflicts. The campaign for
such laws began with the publication of Un Souvenir de Solferino (A Memory of
Solferino, 1862; translated 1911) by Swiss philanthropist Jean Henri Dunant. The book
described the suffering of wounded soldiers at the northern Italian battlefield of Solferino
in June 1859. It advocated for the creation of a relief society and the adoption of a treaty
that would give protection on the battlefield to the wounded and those who assisted them.
These proposals ultimately led to the adoption of the Geneva Conventions and the
founding of the International Committee of the Red Cross (ICRC), which later became
the International Committee of the Red Cross and Red Crescent Movement.
1.2 THE FOUR GENEVA CONVENTIONS

There have been four Geneva Conventions, each of which has subsequently been
amended. The name derives from Geneva, Switzerland, the city where the conventions
were negotiated. The first Geneva Convention was adopted in 1864 and provided for the
protection of sick and wounded soldiers on the field of battle. The second convention,
formulated in 1906, extended those protections to sailors wounded in sea battles. The
third convention, in 1929, protected prisoners of war (POWs). It legislated that POWs
were not criminals, should be treated humanely, and should be released at the end of
hostilities. The fourth convention, ratified in 1949, rewrote, expanded, and replaced the
language of the first three conventions. The fourth convention also provided for the
protection of civilians during wartime. It brought civilians under the protection of
international laws that prohibit murder, torture, hostage-taking, and extra-judicial
sentencing and executions.

What is now commonly called “the Geneva Conventions” refers to the three conventions
that were recodified in 1949 and the fourth convention that was added that same year.
Humanitarian law, also known as “the laws of war, ” is comprised of the Geneva
Conventions and the 1899 and 1907 Hague Conventions. Whereas the Geneva
Conventions primarily protect victims of war, the Hague Conventions and accompanying
regulations primarily protect combatants and noncombatants by limiting the methods and
means of combat. The Hague regulations protect prisoners of war; prohibit poisonous
weapons and weapons calculated to cause unnecessary suffering; and killing or wounding
an enemy who has surrendered. They also provide that an occupying power must respect
“the laws in force in the country.”

1.2.1 THE TWO ADDITIONAL PROTOCOLS

In 1977 two protocols were added to the Geneva Conventions of 1949. Protocol I extends
the law relating to protections of victims of armed conflicts to situations where people are
fighting in the exercise of their right of self-determination against colonial domination,
foreign occupation, or racist regimes. Protocol II extends protection to victims of internal
conflicts in which an armed opposition controls enough territory to enable it to carry out
sustained military operations.

1.2.2 THE THIRD GENEVA CONVENTION

As amended in 1949, the Third Geneva Convention, known as the Geneva Convention
Relative to the Treatment of Prisoners of War, sets forth criteria to determine who is a
POW, a protected person under this convention. Where a doubt arises about whether a
person is a POW, a competent tribunal must decide his or her status; in the meantime, the
person must be afforded the protections of this convention. POWs are entitled at all times
to humane treatment and respect for their personal dignity and honor. Their lives and
health must not be endangered. They must be protected against violence or intimidation,
insults, and public curiosity. They must be maintained in conditions as favorable as those
for the forces of the detaining power. No physical or mental torture, nor any other form of
coercion, may be inflicted on POWs to secure information from them. POWs who refuse
to answer questions may not be threatened, insulted, or exposed to unpleasant or
disadvantageous treatment of any kind. POWs are bound to give only their surnames,
first names and rank, date of birth, and “army, regimental, personal or serial number.”

1.2.3 THE FOURTH GENEVA CONVENTION

The Fourth Geneva Convention adopted in 1949, known as the Geneva Convention
Relative to the Protection of Civilian Persons in Time of War, made explicit the
protections that should be extended to civilians during wartime. It requires that protected
persons—civilians, the wounded, and POWs—be treated humanely. Such persons are, in
all circumstances, entitled to respect for their honor and religion, and must be protected
against insults and public curiosity. No physical or moral coercion shall be exercised to
obtain information from them or third parties. Reprisals against protected persons and
their property are prohibited.

1.3 Countries Belonging to the Conventions

As of 2005, 192 countries had ratified (thus becoming parties to) all four of the Geneva
Conventions. Additional Protocol I had been ratified by 161 states and 156 countries had
ratified Additional Protocol II. Nearly every country has ratified the Geneva
Conventions, so they are now considered customary international law. The United States
is a party to the four Geneva Conventions, but has not ratified the two Additional
Protocols. The United States refuses to ratify Protocol I because it claims the protocol
will legitimize groups involved in wars of national liberation. Although the United States
has not ratified Protocol I, it has indicated that most of its provisions are incorporated into
customary international law. The United States also decided not to ratify Protocol II,
fearing that it might enhance the status of rebels, even though there was little objection by
the U.S. military to ratification of this protocol. Without the Additional Protocols, recent
conflicts in Bosnia and Herzegovina, Sierra Leone, and the Democratic Republic of the
Congo might not have been covered by humanitarian law.

1.4 GRAVE BREACHES AND WAR CRIMES

The Geneva Conventions and Additional Protocol I require the ratifying parties to repress
grave breaches of the conventions, which are classified as war crimes under statutes of
the International Criminal Court and the U.S. War Crimes Act of 1996. States
parties—that is, the ratifying parties—are required to search for persons who have
allegedly committed or ordered the commission of grave breaches of the conventions and
bring those persons before their own courts, or hand them over to another state party for
trial.

Grave breaches of the Third and Fourth Geneva Conventions include the following acts if
committed against a person protected by the convention: willful killing, torture or
inhuman treatment, including biological experiments; willfully causing great suffering or
serious injury to body or health; compelling one to serve in the forces of a hostile power;
and willfully depriving one of the right to a fair trial. Also considered grave breaches of
the Fourth Geneva Convention are the following: taking of hostages; extensive
destruction and appropriation of property not justified by military necessity and carried
out unlawfully and unjustifiably; and unlawful deportation, transfer, or confinement.

1.5 HISTORY OF COMPLIANCE AND NONCOMPLIANCE

Many countries that have signed and ratified and thereby agreed to abide by the Geneva
Conventions have nevertheless failed to live up to their commitments. Germany, for
example, was a signatory to the 1929 Geneva Convention, and yet the Nazi regime of
Adolf Hitler killed nearly half of the POWs it captured in fighting the Union of Soviet
Socialist Republics (USSR) during World War II (1939-1945). The Nazis executed
Soviet POWs at concentration camps such as Auschwitz and Sobibór. Japan, which was
not a signatory to the 1929 agreement, announced in 1942 that it would abide by its terms
but nevertheless was known for its brutal treatment of POWs, including experimenting
with the use of biological and chemical weapons on POWs and other captives.

Many of the provisions created by the Fourth Geneva Convention regarding the
protection of civilians were added in response to war crimes committed during World
War I (1914-1918) and World War II. The prohibition against collective punishment, for
example, resulted from wholesale reprisals taken by the German Army against entire
towns and villages in retaliation for partisan activity.

2.4. United Nations Charter

The United Nations
As it has been suggested in many writings, the modern conceptions of human rights are
the result of the recent and most horrific experience in human history. It is rooted in the
experiences of what is called ‘legal lawlessness’ when crimes were committed with
authorization of the law, and when some human beings were denied their status as such.
This experience is the experience of the Second World War (WWII).

As already stated the concept of human rights emerged recently to replace the phrases
like, ‘natural rights’, the rights of man, and has come to every day use after WWII. The
notion of natural rights played a key role in the 17 th and 18th centuries struggle against
political absolutism, and influenced the formulation of historic documents.

Dear distance learner, as we have noted earlier, the concept of natural rights came under
powerful philosophical and historical attack. Because of these criticisms, the notion of
natural rights fell into disfavor and by the First World War (WWI), there were scarcely
any theories who would or could defend the ‘rights of man ’ or natural rights ’ along the
lines of natural law. Though the heyday of natural right proved short, the notion of
human rights nonetheless endured in one form or another. The abolition of slavery,
popular education, trade unionism, the adult suffrage movement and other changes and
impulses serve as ample proof for the triumph of the ides of human rights. But, it was not
until the rise and fall of Nazi Germany that the idea of rights-human rights-came truly
into its own.
The horrors of WWII gave momentum for the development of modern human rights. It
was recognized that domestic (national) laws and institutions are not sufficient to protect
individual and group interests and rights. To the contrary Nazi Germany used national
laws and institutions to deprive the Jews and other minorities of basic rights and freedom.
The Second World War showed the necessity of realizing the principles of human rights
and marked the birth of the international human right movements.
One of the most striking development in international law since the end of WWII has
been the concern with protection of human rights. This development is a reflection of the
increased concern for people all over the world with the treatment accorded to their
fellow human beings in other countries, particularly when that treatment fails to come up
to minimum standards of civilized behaviors.
Widespread violation of human rights show that the attempts to provide international
protection are not as effective as they ought to be and a great deal remains to be done to
improve the existing international procedure.
Before WWII, certain aspects of human rights enjoyed international protection. The first
international measures for the protection of human rights include the abolition of slavery
since the late 19th century, the evolution of humanitarian law since the mid 19 th century,
the protection of minorities that has evolved after WWI, and International labor
Organization (ILO) convections.
Despite some exceptions, the protection of human rights through international action is a
revolutionary idea and traditional international law had no place for it. This was due to
the view that international law is concerned solely with the relations between states and
cannot confer rights on individuals. It was therefore the accepted doctrine that relations
between individuals and the states of which they were nationals were governed only by
the national laws of those states, as a matter of exclusively within their domestic
jurisdiction.
The atrocities of WWII have resulted in the shift from this attitude to the recognition that
the protection of fundamental rights of the individual (group) is not only a matter of
national law, but also of international law. As a result, today we have systems of
protections of human rights both at national and international level.

The emergence of international human rights system is basically related to that of United
Nations, which was established in 1945 by a Charter to maintain international peace and
security.
What were the major objectives of UN at the time of its establishment?

United Nations (UN) is international organization of countries established to promote

world peace and cooperation. The UN was founded after World War II that ended in
1945. Its mission is to maintain world peace, develop good relations between countries,
promote cooperation in solving the world’s problems, and encourage respect for human
rights.

The UN is an organization of countries that agree to cooperate with one another. It brings
together countries that are rich and poor, large and small, and have different social and
political systems. Member nations pledge to settle their disputes peacefully, to refrain
from using force or the threat of force against other countries, and to refuse help to any
country that opposes UN actions.

Thought the Charter does not incorporate bill of rights, its preamble reaffirms a faith in
international human rights, in the dignity and worth human persons, in the equal rights of
men and women of nations of large and small. Certain articles of the UN charter also
make reference to human rights and fundamental freedoms. The UN prepared and
adopted a number of international human right instruments. These include Universal
Declaration of Human Rights (1948), the International Covenant on Civil and Political
Rights (1966), and the International Covenant on Economic, Social, and Cultural Rights
(1966). These three instruments are together called the International Bill of Rights.
2.6. Universal Declaration of Human Rights and Other Regional
Intergovernmental Organizations
Universal Declaration of Human Rights (UDHRs)
The Universal Declaration of Human Rights was adopted by the General Assembly of the
UN on 10 December 1948, with 48 votes in favor, 8 abstentions, none against it. Ethiopia
as a founding member of UN voted in favor of it. It contained civil, political, economic,
social, and cultural rights as well as the right to development. As its preamble states it
was meant to serve as ‘a common standard of achievement for all peoples and nations ’. It
calls for states to work for the realization of the rights contained therein. It was not
intending to impose legal obligation on states. As any declaration, it reflects mere moral
commitments.

Universal Declaration of Human Rights is a statement affirming the dignity and rights of
all human beings. It is based on principles expressed in the UN Charter. The declaration
is the first section of a proposed three-part international covenant, or agreement, on
human rights. When adopted, the covenant will bind the participating nations in the same
way as any international treaty. The two remaining sections of the covenant amplify the
initial declaration in specific and enforceable terms. One is concerned with civil and
political rights, and the other with economic, social, and cultural rights.

Human rights were incorporated in these UN documents as a reaction to the outrageous

crimes against humanity committed by the National Socialists in Germany between 1933
and 1945. The torture and killing of more than six million Jews, gypsies, political
opponents, minorities and others was the largest-scale violation of fundamental human
rights in modern times. Concepts such as ‘genocide’ and ‘crimes against humanity ’ are
inseparably linked to this period in world history.

The International Covenant on Civil and Political Rights was adopted by the General
Assembly of UN in 1966, and came into force on March 23, 1976 after obtaining a
minimum ratification. The Covenant incorporate what is traditionally called first
generation rights, i.e. civil and political rights. The Covenants impose legal obligation on
states that it to respect and enforce the rights contained therein.

The International Covenant on Economic, Social and Cultural Rights was adopted in
1966 and came into force in 1976. It incorporates most of the Declaration ’s economic,
social, and cultural rights or second-generation rights. This is also binding on states that
ratify it or accede to it.

In general, the rights described in the 30 articles of the Universal Declaration of Human
Rights includes the following: The right to life, liberty, and security of person; to freedom
of conscience, religion, opinion, expression, association, and assembly; to freedom from
arbitrary arrest; to a fair and impartial trial; to freedom from interference in privacy,
home, or correspondence; to a nationality; to a secure society and an adequate standard of
living; to education; and to rest and leisure. The declaration also affirms the rights of
every person to own property; to be presumed innocent until proven guilty; to travel from
a home country at will and return at will; to work under favorable conditions, receive
equal pay for equal work, and join labor unions at will; to marry and raise a family; and
to participate in government and in the social life of the community.

1.2 Regional Intergovernmental organizations

The promotion and protection of human rights is not confined to the works of the UN.
The different regional intergovernmental organizations, among others, the council of
Europe, the Organization of American States (OAS) and the Organization of African
States (recently transformed into the African Union) have developed regional human
rights instruments. Among the various instruments developed by these organs, the main
ones include the European Convention on Human Rights of the 1950 and the European
Social Charter of the 1961, the American Convection on Human Rights of 1969 and the
African Charter on Human and people’s Rights of 1981.

UNIT THREE
HUMAN RIGHTS: CONTROVERSIES AND DILEMMAS
1.1 Human Rights: Philosophical Versus Political Interpretation
In spite of a widespread endorsement of the general principles of human rights, there
have been certain divergences of opinion and disagreements over the specific
interpretations of issues in both philosophical and political contexts. In international
politics, differences of culture, national traditions, and political interests must be counted
for their impact on the conception of human rights. In support of this claim, a survey of
UN debates and voting patterns on human rights issues indicates that many nations have
self-imposed standards for their definitions of human rights. In this context, some
conclude that human rights criticism is irrelevant and interfering unless it issues from
one’s own internal (political) criteria. Others believe that a broad interpretation of human
rights philosophy shows how to overcome narrow self-interest in the international realm
as a concession to world peace and security.
Human rights is viewed as a basic moral entitlement possessed only by persons. Rights
are thus seen as entities that are naturally possessed rather than possessed. Morality and
personhood become the qualifying factors that constitute this entitlement, furnishing the
grounds for making assertions about such inalienable human rights as the right to life,
liberty and the pursuit of happiness.
The other philosophical definitions of human rights emphasize that the various human
rights are universal and irrevocable elements in a scheme of justice. Thus, this definition
seems to imply that human rights do not always function as primary principles of a good
human community, since it is conceivable that the human community may suffer if all
human rights are treated as absolute or unconditional. Human rights, in this context, are
‘inviolable’ only in the sense that their violation is never morally right.
Human rights have been also defined as a valid moral claim based on all primary human
needs. Thus, all human rights are presumably possessed equally by all individuals
because persons as such have the same human needs, and human rights, or else they
couldn’t be regarded as human rights. In contrary to the above definitions, human rights
was viewed as the mere prescriptions for taking primary moral responsibility for all other
persons.
Moreover, various natural right theories define human rights as possessed by all human
beings (at all times and in all places) simply in virtue of humanity. They have the
properties of universality, independence (from social or legal recognition), naturalness,
inalienable, non-forfeitability and imperscriptibility. Only so understood will an account
of human rights capture the central idea of rights that can always be claimed by any
human being.
As a source of some political debate with correlative discussions in the philosophical
literature, questions are raised about whether and under what conditions human rights
should be given practical effect; but even given an appropriate codified legal structure for
human rights, the criteria for their enforcement remain a matter of dispute. For example,
the issue is yet unresolved whether human rights legislation and enforcement should be
exclusively matters of national concern, or whether they would best be treated in the
international Court of Human Rights. Discussions in the philosophical literature generally
follow the world political trend toward unilateral interpretations of human rights issues,
rarely incorporating other than Western liberal formulations.
In contrast to the philosophical interpretations of human rights, the political conceptions
of human rights have been proposed recently. This approach looks first to the treatment
of human right within the already existing discourse and practice of human rights or what
has been called ‘human rights regime.’ The guiding idea is not to assess this regime by its
conformity to the traditional of natural rights or some other philosophical conception, but
rather to clarify the understanding(s) of human right with respect to its own aims and
purposes. Thus, human rights are understood as international norms that aim to protect
fundamental human interests and /or secure for individuals the opportunity to participate
as members in political society.
Central to this political conception of human rights is the idea of human rights as
primarily (though not exclusively) claims against political institutions and their officials
as opposed to claims against arbitrary individuals. Human rights are also understood
primarily in connection with the basic conditions of membership ion a political society
(rather than as ‘general’ rights individuals possess ‘simply in virtue of their humanity ’).
Moreover, human rights are political in that the type of justification given for them is
determined by their political role or function.

Another area of debate about human rights occurring on the level of international
diplomacy concerns the terms in which the topic is advanced. In some instances it is
denounced as an instrument of political propaganda and opportunism; an opposing view
asserts that, despite the partisan treatments of human rights, outside benefits accrue that
ultimately justify the continued usage of human rights ideals as a moral standard in the
worlds political arena. However, many asserted that what is generally overlooked in both
politics and the literature is that differences in the criteria for defining human rights must
be recognized before the concept can be clarified.

Nevertheless, the human rights question today is usually raised in connection with
international law and politics; philosophy plays a more tangential role. But, in the past
philosophers were often at the center of ‘natural rights ’ controversies along with jurists
and politicians. .
3.2. Universalism versus Cultural Relativism
One of the most pertinent issues of the past twenty years has been the conflict between
two different ideologies of human rights on a national scale, universalism, and cultural
relativism. Universalism holds that more “primitive” cultures will eventually evolve to
have the same system of law and rights as Western cultures. Cultural relativists hold an
opposite, but similarly rigid viewpoint, that a traditional culture is unchangeable.
Universal human instruments are based on the assumption that they reflect universally
accepted norms of behavior. This is important, among other things, for the role of the
United Nations in supervising the observation of these international standards. Unless
human rights-or at least a nucleus of such rights-are universally accepted, the United
Nations will lack the basis on which its supervision activities are founded. This
assumption governed the approval in 1948 of the Universal Declaration of Human Rights
by the General Assembly of the United Nations. It states in the beginning of its preamble
that the ‘recognition of the inherent dignity and of the equal and inalienable rights of all
members of the human family is the foundation of freedom, justice and peace in the
world.
No member-state of the United Nations voted in 1948 against adoption of the Universal
Declaration of Human Rights. Eights states –the soviet unions and five of its allies, plus
Saudi Arabia and South Africa-abstained. One of the reasons why the Soviet Union
abstained was that it felt that the Universal Declaration paid too little attention to the
importance of the maintenance of national sovereignty. Saudi Arabia ’s abstention was
based on its rejection of the inclusion under freedom of religion the right of changing
one’s religion. South Africa rejected the principle of equality because of its Apartheid
nature.

However, the acceptance of these texts doesn’t mean that the universal nature of human
rights is a foregone conclusion. Among often-heard criticisms of the Universal
Declaration of Human Rights are the following.
 It was drafted at a time when most Third World nations were still under colonial
domination; developing nations that later incorporated the standards of the
Universal Declaration in their national constitutions or accepted them as members
of the Organization of American States or the Organization of African Unity, did
so under western pressure.
 Furthermore, the rights contained in Universal Declaration are said to reflect
mainly western ideological views, rather than values dominant in non-western
societies;
 The Declaration uses an individualistic approach to human rights, which is
supposedly not suitable for societies that emphasize collective values.

In universalism, an individual is a social unit, possessing inalienable rights, and driven by

the pursuit of self-interest. In the cultural relativist model, a community is the basic social
unit. In determining the universal character of human beings various criteria can be
applied. A very strong criterion would be, for example, that all human beings all over the
world should agree about the meaning of human rights as well as about its
implementation. Obviously, such a criterion cannot be met for the time being. Not all
human beings share the same view about the meaning of human rights and there exists no
agreement about the mutual relationship of various human rights. Should one want to
apply such criterion, then the conclusion would likely be that there is no such
universalism of human rights.
Concepts such as individualism, freedom of choice, and equality are absent. It is
recognized that the community always comes first. This doctrine has been exploited by
many states, which criticize any impositions of western rights as cultural imperialism.
These states ignore that they have adopted the western nation state, and the goal of
modernization and economic prosperity.

Cultural relativism is in itself a very arbitrary idea. Cultures are rarely unified in their
viewpoints on different issues. Whenever one group denies rights to another group within
a culture, it is usually for their own benefit. Therefore, human rights cannot be truly
universal unless they are not bound to cultural decisions that are often not made
unanimously, and thus cannot represent every individual that these rights apply to.

Even though cultural relativism has great problems and a potential for abuse,
universalism in its current state is not the ideal solution. Universalism is used by many
Western states to negate the validity of more ‘traditional ’ systems of law. For example, if
a tribe in Africa is ruled by a chieftain and advised by the twelve most senior villagers, is
this system any less representative than the supposedly more liberal societies of the
West? It is not possible to impose a universal system of human rights if the effects of
social change stemming from modernization are not understood or worse yet, ignored.

In non-Western societies, industrialization, capitalism, and democracy might not have

been the eventual outcome of the process of cultural evolution. These ideologies have
been shaped and created by Western imperialism, the slave trade, colonialism,
modernization, and consumerism. Today’s world shows signs of positive progress
towards the universal system of human rights. The declaration of human rights occurred
immediately after the atrocities committed during WWII. The globalization of human
rights began when the world was awakened to the crimes committed by governments, and
the need for a more universal system of accountability and responsibility. Through a
forum such as the United Nations, Cultural differences are better able to be resolved,
thereby paving the way for universalism while at the same time recognizing and
compromising on the needs of certain cultures. The recent adoption of the International
Criminal Court in June 1998 is an important step in enforcing and promoting the values
agreed upon by the member nations. As the world becomes a smaller place with the
advent of globalization, universalism makes more sense as a philosophy of human rights.
In a world where many people might not be governed by national borders, having
fundamental human rights instead of ones bound to certain cultures provides the best
solution.

At the level of non-governmental organization, the universalism of human rights has

indeed been ‘universally’ accepted. Hence, universal human rights standards area rooted
in may cultures. It is important to affirm the basis of universality of human rights which
afford protection to all of humanity, including special groups such as women, children,
minorities, and indigenous peoples, workers, refuges and displaced persons, the disabled
and the elderly. While advocating cultural pluralism, those cultural practices which
derogate from universally accepted human rights including women ’s rights, must not be
tolerated. As human rights are of universal concern and are universal in value, the
advocacy of human rights cannot be considered to be an encroachment upon national
sovereignty.
3.3. Individual and collective rights
Another distinction often made is that between individual and collective rights. Many
human rights are by their very nature the rights of individuals. Some human rights
combine individual and collective aspects. For example, the freedom to manifest religion
or belief can be exercised individually or in community with others. With respect to other
human rights, collective aspects prevail. This is the case with the rights of the family and
trade union freedoms.
There are also rights which give attention to the special needs of groups as such. By
virtue of their nature and subject matter these are collective rights. Collective rights
include the rights of ethnic minorities, the rights of indigenous peoples and peoples’
rights.
Peoples’ rights include the right to self-determination, to development, to peace and
security and to a safe and healthy environment.
The African Charter on Human and Peoples’ Rights (1981) was the first human rights
instrument to recognize the relationship between individual and collective rights and to
enumerate a catalogue of people’s rights. Critics of collective rights have argued that
individual and collective rights are inherently irreconcilable. Increasingly it is accepted
that individual and collective rights are concerned with conceptually distinct claims and
can exist concurrently. Collective rights can be interpreted and applied in a manner
consistent with individual human rights.
3.4. Economic, Social, and Cultural Rights versus Civil and Political
Rights
The codification of right has taken place under the influence of some important
differences of views, one of the oldest concerning the relationship between economic,
social and cultural rights on the one hand, and civil and political rights on the other. At a
very early stage, UN General Assembly decided that the Universal Declaration would
give rise to different legal instruments protecting different sets of rights.

The communist states and a steadily growing number of developing countries considered
political and civil rights to be subordinate to economic and social rights, which
supposedly corresponded to people’s primary need, whereas Western countries tended to
reverse the rank order. Some of the Western countries maintained that economic rights
were in fact not rights at all, but rather political goals. Moreover, they clashed over the
order in which rights should be implemented. Communist and developing states for a
long time claimed that the realization of civil and political rights had to wait until
economic development and economic rights had been established. Otherwise, chaos
would result and development would be curbed. The Western countries typically took the
opposite position. Democracy and political freedom were in fact necessary to guarantee a
satisfactory level of economic progress and the realization of economic rights.

Philosophers generally agree that civil and political rights must be counted as human
rights. However, there is a basic controversy about whether socio-economic, or, as they
are sometimes called, welfare rights, are to count as human rights. To resolve this
dispute, the same criteria must be as a common frame-of-reference for distinguishing
between human rights and other rights. To illustrate, some philosophers think that civil
and political rights are human rights but are unwilling to include socio-economic rights.
Hence, there are three tests for determining the authenticity of a human right:
practicability, paramount importance, and universality. Thus, these criteria purportedly
offer a clear way of making the desired distinction, such that civil and political rights are
considered to be human rights, whereas the other ‘rights’ are not included; at least not in
the same sense.

Other philosophers hold instead that so-called welfare rights should be included in the list
of human rights. They criticized antagonists using as their conceptual framework such
documents as the Universal Declaration, the European Convention on Human Rights, and
others that favor a similar interpretation of human rights. For them, one can not use the
tests (used by antagonists) to deny status to only one sets of rights without also
proscribing the other set.

These differences have not passed away but they have certainly lost their vigour over the
years. Later on, the UN declared that human rights are what reason requires and
conscience commands. Human rights are rights any person has as a human being. We all
are human beings; we are all deserving of human rights. One cannot be true without the
other. One cannot pick and choose among human rights, ignoring some while insisting on
others. Only as rights equally applied can they be rights universally accepted.

However, other differences may seem more important today. A number of new right
came into fashion some decades ago under varying headings- peoples ’ rights, solidarity
rights, third-generations rights. They include the right to peace and development, and
were largely championed by developing countries, whereas objection was raised in the
west. In particular, the critic maintained that right of this kind seemed to drive away the
traditional individual perspective on human rights, since the focus was not on the rights
of the individual in relation to the power of the state but rather the rights of some
collective (state, country or population) in relation to an ill-defined other party. This has
often been perceived as a way of concealing purely political ambitions.
The right to development has gone furthest towards recognition as a human rights. There
was Western disobedient when the General Assembly adopted the Declaration on the
Rights to Development in 1996, but resistance was finally defeated in 1993 when this
right was ‘reconfirmed’ by the World Conference on Human Rights in Vienna.

The connotations of the right of development have not been clarified, but in the UN ’s
continuing effort to put emphasis on it (for instance, by setting up an open-ended working
group in 1998) differences have manifested themselves sharply. In essence, the conflicts
concern the demands that developing countries are inclined to make on developed
countries- for instance, linking the right to development to changed rules and regulations
for international trade, development aid policies, foreign debt and so on.

The tricky question of the definition or identification of the possessor of right seemed to
be resolved in the 1986 Declaration. Accordingly, the right to development is an
inalienable human right by virtue of which every human person and all peoples are
entitled to participate in, contribute to, and enjoy economic, social, cultural and political
development, in which all human rights and fundamental freedoms can be fully realized.
The human person is the central subject of development and should be the active
participant and beneficiary of the right to development.

By contrast, a similar semantic device by which both the individual and collective were
seen as the possessors of rights does not provide a general solution. In 1984 the General
Assembly adopted the Right of Peoples to Peace whereby it ‘solemnly proclaims that the
peoples of our planet have a sacred right to peace ’. But, there is no mention of individual.
On the other hand, it is clear that a people is not the same thing as a state, since states
have the responsibility for the implementation of this rights.
 UNIT FOUR
HUMAN RIGHTS AND CONTEMPORARY ISSUES
4.1. Human Rights and Women
Women’s Rights are rights that establish the same social, economic, and political status
for women as for men. Women’s rights guarantee that women will not face discrimination
on the basis of their sex. Until the second half of the 20th century, women in most
societies were denied some of the legal and political rights accorded to men. Although
women in much of the world have gained significant legal rights, many people believe
that women still do not have complete political, economic, and social equality with men.

4.1.1. Origins of the movements for women’s right

The struggle for women’s rights began in the 18th century during a period of intense
intellectual activity known as the Age of Enlightenment. During the Enlightenment,
political philosophers in Europe began to question traditional ideas that based the rights
of citizens on their wealth and social status. Instead, leaders of the Enlightenment argued
that all individuals were born with natural rights that made them free and equal. They
maintained that all inequalities that existed among citizens were the result of an
inadequate education system and an imperfect social environment. Enlightenment
philosophers argued that improved education and more egalitarian social structures could
correct these inequalities.

Such radical ideas about equality and the rights of citizens helped inspire both the
American Revolution in 1775 and the French Revolution in 1789. However, the ideas of
the Enlightenment initially had little impact on the legal and political status of women.
Most Enlightenment thinkers had little to say about the position women held in society,
and many of their followers assumed that the concepts of liberty, equality, and political
representation applied only to men. For example, one of the most influential writers from
this period, French philosopher Jean Jacques Rousseau, claimed that women were
sentimental and frivolous. Rousseau argued that women were naturally suited to be
subordinate companions of men.

British philosopher and economist John Stuart Mill, though a leading proponent of
utilitarianism during the 19th century, came to understand that utilitarian thought was
flawed because it failed to take account of people ’s emotions. He became outspoken on
the subject of equality for women, an unpopular cause at the time. His essay The
Subjection of Women (1869) sought to shift the law and public perceptions in order to
free women from what was effectively slavery, and to allow them to live as individuals.

In response to Rousseau and others who belittled the role of women in society, English
writer Mary Wollstonecraft wrote A Vindication of the Rights of Woman (1791). In this
book, Wollstonecraft argued that, like men, women were naturally rational but their
inferior education often taught them to be silly and emotional. Education, she believed,
should cultivate the natural reasoning capacity in girls. She also claimed that the best
marriages were marriages of equals, in which husband and wife were friends as well as
legal partners. Wollstonecraft argued that equality in marriage would only come about
with equality of education.

4.1.2. International women’s right

Women’s rights supporters from the United States and other countries have attempted to
build international ties among activists since the late 19th century. They have formed
international advocacy groups and organized women’s conferences with the aim of
attaining equal rights for women. Women have used these meetings to focus on such
issues as equal pay and equal economic and educational opportunities for women. For
example, the International Congress of Women, founded in 1888, demanded equality of
access to education and industrial training, equal wages for equal work, and a single
standard of moral conduct for men and women. In 1904 activists Susan B. Anthony and
Carrie Chapman Catt established the International Woman Suffrage Alliance to secure
the right to vote for women of all nations.

During the 1930s another group known as Equal Rights International campaigned for the
passage of a treaty that would establish equal rights between men and women. In 1935 a
coalition of international women’s rights organizations brought the treaty before the
League of Nations, which voted to further study the issue of women’s legal status.

Since the 1940s, most international women’s rights efforts have been organized by the
Commission on the Status of Women (CSW), an office established in 1947 by the United
Nations (UN). The Commission is the only existing intergovernmental body that issues
reports on and recommendations for the promotion of women ’s political, social,
economic, and cultural rights. The CSW also acts as an advocate for women ’s rights and
can urge immediate international action in cases of severe violations of women’s rights.

The UN encouraged equality in the workplace for men and women when it sponsored the
Convention Concerning Equal Remuneration for Men and Women Workers for Work of
Equal Value in 1953 and the Convention Concerning Discrimination in Respect of
Employment and Occupation in 1960. Over 100 countries ratified these measures. In
1975 the UN launched the Decade for Women, a ten-year effort to focus on women ’s
issues. From 1975 to 1985 international groups formed a series of conferences organized
around the themes of equality, development, and peace. The conferences took place
throughout the world and drew leaders and delegates from developing and industrialized
nations alike. Until these conferences, most international women ’s groups had consisted
of middle-class or upper-class women from industrialized countries. The Decade for
Women culminated in the 1985 UN Nairobi Conference, held in Nairobi, Kenya, which
was attended by 375 delegations of women from nations around the world.

The United Nations’ Fourth World Conference on Women was held in Beijing, China, in
1995. Over 17,000 people registered for the event, including delegates from nearly 200
countries. The Platform for Action that emerged from the conference focused on the
removal of obstacles to women’s equal participation in society. The most controversial
sections of the platform concerned reproductive rights, particularly the right to have an
abortion. The final document declared that “the ability of women to control their own
fertility forms an important basis for the enjoyment of other rights, ” and asserted the right
of women and men to have access to all legal methods of fertility regulation.

4.1.3. Women’s Rights Today

In recent decades women around the world have made strides in political participation.
By the 1980s women could vote virtually everywhere in the world, except for a few
Muslim countries. As of mid-2005, when women in Kuwait won suffrage, women could
vote in all countries where men could vote except Saudi Arabia. The right to vote usually
included the right to run for elected office. In 2005 there were 12 female national leaders
in the world, including 8 heads of state (3 monarchs and 5 presidents) and 4 heads of
government (prime ministers). In 2005 women made up almost 16 percent of legislative
bodies worldwide, compared to 11 percent in 1999 and 9 percent in 1987. Despite these
advancements, women’s role in governmental decision-making remains limited.

Many disparities persist between women’s legal rights and their economic status. Women
today constitute nearly 70 percent of the world’s poor, despite international efforts to
compensate women and men equally in the workplace. While women made up about 32
percent of the world’s labor force in 1990, the percentage of women in positions to make
important decisions was far lower. In 2002 women held only 15.7 percent of corporate
executive positions in the 500 largest companies in the United States —an increase of 7
percentage points since 1995. In the mid-1990s women comprised only 1 percent of
executives in the 1,000 largest corporations outside the United States.

Women remain at a distinct disadvantage in education as well. While primary school

enrollment for girls now roughly equals that of boys, women constitute about two-thirds
of the world’s one billion illiterate adults. Of the more than 100 million children who
drop out of school before completing the fourth grade, two-thirds are girls. On the other
hand, women are entering colleges and universities in increasing numbers. In Eastern
Europe, Latin America, and the Caribbean, more women than men enrolled in institutions
of higher education during the 1990s.

Reproductive rights for women vary greatly from country to country. Contraception is
available in most countries, with the exception of a few fundamentalist Islamic nations,
such as Iran. However, women in many countries are too poor or uneducated to obtain
effective birth control. Abortion is legal under specific circumstances in many
industrialized Western nations. Some countries with severe overpopulation have the most
liberal abortion policies. For example, China, which encourages families to have only one
child, places no restrictions on when a woman can have an abortion.

4.2. Gross and Systematic Human Rights Violations

4.2.1. Human rights violations and Human rights abuses
Human rights violations include governmental transgression of the rights guaranteed by
national, regional and international human rights law and acts and omissions directly
attributable to the state involving the failure to implement legal obligations derived from
human rights standards. Violations occur when a law, policy or practice deliberately
contravenes or ignores obligations held by the State concerned or when the State fails to
achieve a required standard of conduct or result. Additional violations occur when a state
withdraws or removes existing human rights protections.
All human rights, civil, cultural, economic, political and social-impose three distinct
types of obligations on governments: obligations to respect protect and fulfill. The failure
of a government to perform any of these obligations constitutes a violation of human
rights.

Obligation to respect requires a state to respect their human rights and hence not to
interfere with or impair the exercise of these rights. Such states obligation has often been
described as negative obligation or as a hands-off obligation.
The obligation to protect involves the protection of human rights against violations of
rights by third parties. The obligation to fulfill involves the taking positive measures for
the realization of human rights.

The obligation to fulfill contains obligations to facilitate, provide and promote. The
obligation to fulfill requires states to adopt appropriate legislative, administrative,
budgetary, judicial, promotional and other measures. The failure of a government to
perform any of these obligations constitutes a violation of human rights.

Although the full realization of some aspects of certain rights might only be achievable in
a progressive manner, this does not alter the nature of the legal obligations of States, nor
does it mean that all rights possess some components which are always subject to
immediate implementation.
With specific regard to economic, social and cultural rights, violations can also occur
when a state fails to satisfy “minimum essential levels of the rights” found in the ICESCR
and thus a state in which “any significant number of individuals is deprived of essential
foodstuffs, of essential primary health care, of basic shelter and housing, or of the most
basic forms of education, is prima facie, violating the ICESCR ”. such minimum core
obligations apply irrespective of the availability of resources in the country concerned or
any other actors or difficulties. Any discrimination on ground of race, color, sex,
language, religion, political or other opinion, national or social origin, property, birth or
other status with the purpose or effect of nullifying or impairing the equal enjoyment or
exercise of any human rights constitutes a violation of human rights.
The phrase “human rights abuses” is used as a broader term than “violations ”, and
includes violative conduct committed by non-state actors.
What is Gross and systematic human rights violation?
The term ‘gross, systematic violations' refers top violations, instrumental to the
achievement of governmental policies, perpetrated in such quantity and is such a manner
as to create a situation in which the right to life, to personal integrity or to personal liberty
of the population as a whole or of one or more sectors of the population of the country are
continuously infringed or threatened.
4.2.2. Genocide
The term ‘genocide’ was coined in 1944 by the polish jurist Raphael Lemkin. He referred
to the coordinated and planned elimination of national, religious or racial groups by
activities directed to undermine the foundations of survival of the group in question. The
immediate causes for formulating the term were the Nazi activities to eliminate the Jews.
In 1948, the General Assembly of the United Nations adopted the Convention on the
Prevention and Punishment of the Crime of Genocide. Article II of the convention
describes genocide as any of the following acts committed with the intent to destroy, in
whole or in part, a national, ethnic, racial or religious group, as such
 Killing members of a group
 Causing serious bodily or mental harm to members of a group
 Deliberately inflicting on the group conditions of life calculated to bring about
its physical destruction in whole or in part
 Imposing measures intended to prevent births within the group
 Forcibly transferring children of the group to another group
Thought difficult to come across consensus on the notion of ‘group’, some international
instruments (The court in the Akayesu case) has adopted a working definition of four
groups:
 A national group is defined as a collection of people who are perceived to share a
legal bond based on common citizenship, coupled with reciprocity of rights and
duties
 An ethnic group is defined as a group whose members share a common language
and culture.
 A racial group as a group based on the hereditary physical traits often identifies
with a geographical region, irrespective of linguistic, cultural, national or
religious factors.
  Religion group is one whose members share the same religion, denomination or
mode of worship.

The common characteristic of the four groups is that these groups are stable and
membership to the group would seem to be normally not challengeable by its members,
who belong to it automatically, by birth, in a continuous and often irremediable manner.

Canadian scholars Frank Chalk and Kurt Jonassohn have identified four main types of
genocide. These types can be called: (1) ideological, (2) retributive, (3) developmental,
and (4) despotic. However, any genocide may have characteristics of more than one of
these types.

4.2.1 Ideological Genocide

The Nazi Holocaust, the Armenian massacres, and the Cambodian genocide are examples
of ideological genocide. Most often, this type of genocide is committed in an effort to
achieve an ideal social structure in which all members of society are alike or hold the
same beliefs. Fascism and communism are the major 20th-century ideologies that seek to
establish societies based on likeness. In these cases the governments in power instituted
policies that led to mass deaths as part of a plan to achieve a country based on a single
racial or ethnic group. The Holocaust, for example, was driven by the Nazi racial theory
that Germans belonged to a superior race, which they called Aryans. The Khmer Rouge
goal was to eliminate difference. They killed members of minorities —including all ethnic
Vietnamese, many educated and urban people, some rural people, and anyone suspected
of disloyalty to the Communist regime.

4.2.2. Retributive Genocide

Retributive genocide is undertaken to eliminate a real or potential threat. It is most likely

to occur when one group dominates another group and fears its rebellion or when the
other group actually rebels. The attempted extermination of the Tutsi in Rwanda by the
Hutu in 1994 is one example of this type of genocide. The Hutu tried to maintain control
of the government in Rwanda by destroying the Tutsi.

4.2.3 Developmental Genocide

Genocide undertaken for economic gain is known as developmental genocide. A

government might use this type of genocide against people native to an area that the
government wants to use for building, mining, and other development. An example of
this type of genocide occurred in Paraguay in the late 1960s and early 1970s. To allow
for the expansion of logging and cattle-raising enterprises in the nation ’s interior,
Paraguay’s government collaborated in the forced relocation and execution of an
estimated half of the native Indian population.

4.2.4. Despotic Genocide

Despotic genocide is intended to spread terror among real or potential enemies. The
killings orchestrated by Ugandan presidents Idi Amin and Milton Obote during the 1970s
and early 1980s are examples of this type of genocide. Both Amin and Obote ordered the
deaths of hundreds of thousands of Ugandans belonging to groups who had opposed or
who they feared might oppose their tyrannical rule.

The United Nations has always been reluctant to employ the term- ‘genocide ’, as this
might rule out negotiations with the government that has been so accused. But in regard
to the situation in the former Yugoslavia and in Rwanda the term ‘genocide ’ has been
used nevertheless.

The prohibition of genocide is a collective human right. Genocide can only be practiced
against groups of persons. There can be no doubt that the prohibition of genocide is of
fundamental importance to human dignity. It is a human right to be free from elimination
as a group.
4.3. Human Rights and Globalization
4.3.1. What is globalization?

Globalization—the growing interpenetration of states, markets, communications, and

ideas across borders—is one of the leading characteristics of the contemporary world.
International norms and institutions for the protection of human rights are more
developed than at any previous point in history, while global civil society fosters growing
avenues of appeal for citizens repressed by their own states. But assaults on fundamental
human dignity continue, and the very blurring of borders and rise of transnational actors
that facilitated the development of a global human rights regime may also be generating
new sources of human rights abuse. Even as they are more broadly articulated and
accepted, the rights of individuals have come to depend ever more on a broad array of
global actors and forces, from ministries to multinationals to missionaries.

Globalization is a package of transnational flows of people, production, investment,

information, ideas, and authority (not new, but stronger and faster). Human rights are a
set of claims and entitlements to human dignity, which the existing international regime
assumes will be provided (or threatened) by the state. A more cosmopolitan and open
international system should free individuals to pursue their rights, but large numbers of
people seem to be suffering from both long-standing state repression and new denials of
rights linked to transnational forces.

The challenge of globalization includes unaccountable flows of migration and open

markets present new threats, which are not amenable to state-based human rights
regimes, while the new opportunities of global information and institutions are
insufficiently accessible and distorted by persistent state intervention. Globalization is an
ensemble of developments that make the world a single place, changing the meaning and
importance of distance and national identity in world affairs

What are the effects of globalization?

Optimists suggest that transnational integration will empower citizen challenges to state
power, while revisionists assert that globalization reiterates national and/or market
exploitation. One attempt to resolve this debate delineates good and bad forms of
globalization; "globalization from above" versus "globalization from below." Another set
of scholars contend that a deeper process of globalization has transformed the
fundamental forms of world politics through changing identities, evolving social forms
such as networks, and the diffusion of an increasingly influential world institutional
culture that includes support for human rights or at least democracy.

The emergence of an "international regime" for human rights (Donnelly 1986), growing
transnational social movement networks, increasing consciousness (Willetts 1996), and
information politics have the potential to address both traditional and emerging forms of
human rights violations. Beyond this interaction of new solutions with old problems, new
human rights problems may result from the integration of markets, the shrinking of states,
increased transnational flows such as migration, the spread of cultures of intolerance, and
the decision-making processes of new or growing global institutions.

4.4. Human Rights in a Global Arena

Human rights are a set of universal claims to safeguard human dignity from illegitimate
coercion, typically enacted by state agents. These norms are codified in a widely
endorsed set of international undertakings: the "International Bill of Human Rights"
(Universal Declaration of Human Rights, International Covenant on Civil and Political
Rights, and International Covenant on Social and Economic Rights); phenomenon-
specific treaties on war crimes (Geneva Conventions), genocide, and torture; and
protections for vulnerable groups such as the UN Convention on the Rights of the Child
and the Convention on the Elimination of Discrimination against Women.

International dialogue on human rights has produced a distinction between three

"generations" of human rights, labeled for their historical emergence. Security rights
encompass life, bodily integrity, liberty, and sometimes associated rights of political
participation and democratic governance. Social and economic rights, highlighted in the
eponymous International Covenant, comprise both negative and positive freedoms,
enacted by states and others: prominently, rights to food, health care, education, and free
labor. More recently discussed collective rights may include rights such as membership
in a cultural community and access to a healthy environment . These "generations" of
rights often involve different sets of actors and different levels of state accountability.

While the origins of the international human rights regime, U.S. foreign policy, NGO
monitoring, and much previous scholarship have focused on security rights, this project
will entertain a broader conception of linked political, social, and cultural rights grounded
in the Universal Declaration. A focus on security rights may be desirable for clarity and
manageability, as well as because security rights of life and freedom are "basic" or
enabling rights that make the pursuit of other rights possible. However, human rights
claims have an inherently expanding character, which requires the consideration of every
type of threat to human dignity under a range of changing social conditions. Thus, both
liberty and survival may involve social issues, such as the right to free labor and to
organize for better labor conditions.

Some vulnerable groups, notably women and indigenous peoples, may face linked threats
that emanate from public and private actors, and seek cultural freedoms to meaningfully
participate in civic life. Furthermore, the very process of globalization blurs distinctions
among categories of rights: humanitarian intervention seeks to rescue ethnic groups,
women working as prostitutes are beaten by police for "bothering tourists" to feed their
children, and rights to privacy and expression collide on the Internet .
Human rights values derive from and are justified by reference to philosophical
constructions of human nature, cultural and religious traditions, demands from civil
society, and international influence. In practical importance, the latter two political
factors are the most important source of human rights in the contemporary world.
Accordingly, despite frequent violations in practice, international consensus has
implanted human rights as a nearly universal vocabulary of debate, aspiration, and civic
challenges to state legitimacy.

Analysts of human rights have identified a variety of psychological, social, economic,

and political patterns that put societies "at risk" of human rights violations. These
generally include authoritarian government, civil war, strong ethnic cleavages, weak civil
society, power vacuums, critical junctures in economic development, and military
dominance . Above all, the study of human rights teaches us that human rights violations
usually reflect a calculated (or manipulated) pursuit of political power, not inherent evil
or ungovernable passions.

The effect of globalization on state-based human rights violations will depend on the type
of state and its history. In newly democratizing countries with weak institutions and elite-
controlled economies (Russia, Latin America, Southeast Asia), the growth of global
markets and economic flows tends to destabilize coercive forces but increase crime,
police abuse, and corruption. Global mobility and information flows generally stimulate
ethnic mobilization, which may promote self-determination in responsive states but more
often produces collective abuses in defense of dominant-group hegemony.

On the other hand, the same forces have produced slow institutional openings by less
fragmented single-party states (like China and Mexico). In much of Africa, globalization
has ironically increased power vacuums, by both empowering sub-state challengers and
providing sporadic intervention, which displaces old regimes without consolidating new
ones. Some of the most horrifying abuses of all have occurred in the transnationalized,
Hobbesian civil wars of Sierra Leone, Angola, and the Congo.

But the literature on human rights has also moved beyond the conventional wisdom that
situated human rights violations and remediation predominantly within the state, to
suggest ways in which globalization creates new opportunities to challenge the state
"from above and below" . Human rights research has produced both evidence of new
capabilities for monitoring, pressure, and sanctions, along with reports of new types and
venues of abuse. In general, analysts of globalization find that states' international
integration improves security rights, but increases inequality and threatens the social
rights of citizens.

However, neither economic development nor economic growth in and of themselves

improve human rights performance (Amartya Sen). In addition to globalization and
growth, findings on the effectiveness of international pressure on state human rights
policy suggest that target states must be structurally accessible, internationally sensitive,
and contain local human rights activists for linkage.

There is little systematic evidence available on the overall human rights impact of global
flows and actors, and that which does exist is often contradictory. For example,
quantitative studies that demonstrate improved security rights where MNCs
(multinational corporations) are present, contrast with case studies documenting
multinational reinforcement of state coercion and labor suppression. Other scholars
suggest that the impact of multinationals depends more on their type of production,
customer base, or sending country than their globalizing nature. Similarly, some studies
indicate that even within "economic globalization," different types of global economic
flows at different times will have different impacts on democracy and human rights.

There is some basis for believing that new global human rights mechanisms, such as
transnational NGO campaigns, may be particularly effective against transnational actors
like multinationals. Analysts argue that transnational human rights threats can be most
easily met by transnational human rights campaigns, since it is easier to access
transnational actors than repressive states, transnationals cannot cloak their abuses in
sovereignty rationales, global elites are increasingly amenable to "rights talk," and global
civil society can provide local linkages for transnational networks. Researchers suggests
that the human rights impact of globalization depends on three types of factors: the type
of globalization involved, the level of analysis addressed, and the type of state that is
filtering globalizing flows.
Researchers examine the human rights impact of globalization across states and conclude
that transnational flows and institutions are constructing evolving responses to "the most
obstreperous actor" (still usually a state). By contrast, others distinguish globalization
above and below the state, attributing threats mainly to unaccountable transnational
market forces and institutions, partly combated by the struggles of grassroots global civil
society. Researchers introduce the missing element of globalization through the state,
which they find highly problematic for social rights, in ways that also reiterate the
distinction between different streams of globalization and their differential effect on
rights.

These levels of analysis overlap with the streams of globalization. Global mobility
operates across and through the state, and the rights impact is generally more positive
across and more negative through—researchers suggest that policing creates more
violations than migration itself. Global markets may be across (financial flows), above
(multilateral trade and financial institutions), through (economic adjustment), or below
(grassroots protests, shifts in local production or consumption). This is part of the
problem in assessing the contradictory effects of markets on rights.

Global information is predominantly across and below the state, hence it tends to
facilitate rights unless bottlenecks develop through or above the state. Finally, global
governance appears as the paradigm of globalization from above.

Finally, analysis indicated that the human rights impact of globalization is filtered
through the type of receiving state. Much of the literature on globalization has overlooked
the effect of globalization on the state; globalization has produced a new "globalized
state"—changing rather than eroding sovereignty. As some scholars have argued, power
is moving from weak states to strong states, from all states to markets, and away from
state authority entirely in certain domains and functions. At the same time, the state is the
main administrator of globalization. As one partisan of globalization puts it, globalization
means that the quality of the state matters more, since the state is "the operating system
for global capitalism". Thus, the struggle for human rights in a global era is now from
above, from below—and still through the middle.
In the security sphere, states respond with increased repression to fragmentation,
transnationalized civil war, and uncontrolled global flows such as migrants and drug
trafficking. Transborder ethnic Diasporas help inspire civil conflict, while the global arms
trade provides its tools. Even extreme civil conflicts where states deteriorate into
warlordism are often financed if not abetted by foreign trade: diamonds in the Congo and
Sierra Leone, cocaine in Colombia.

While non-state actors like insurgents and paramilitaries pose increasing threats to human
rights, state response is a crucial multiplier for the effect on citizens. Since all but the
most beleaguered states possess more resources and authority than rebels, they can
generally cause more damage—and human rights monitoring in a wide variety of settings
from Rwanda to Haiti attributes the bulk of abuses to state (or state-supported) forces.
States also differ in their ability and will to provide protection from insurgent terror
campaigns (like that in Algeria).

Global economic relationships can produce state policies that directly violate social and
labor rights and indirectly produce social conflict that leads to state violations of civil and
security rights. While globally induced economic adjustment may cut state services and
intensify poverty and protest, global windfalls of wealth may also underwrite repressive
and predatory states, as in Angola, where oil revenues have fueled repression and civil
war (Harden 2000). It is states that largely determine labor rights and security response to
labor dissidence; states also regulate multinationals, certify unions, and form joint
ventures with global investors.

Just as globalized states may present new threats alongside long-standing patterns of
repression, globalization offers states declining opportunities to serve as a source of
human rights protection. Increasing numbers of residents of increasing numbers of states
are less than full citizens. Over 25 million people are international refugees, while an
estimated similar number are economic migrants—mostly undocumented and generally
lacking civil rights.
Meanwhile, alongside people who are not citizens, states have diminished capacity to
control the conditions of citizenship—even for those securely inscribed within the
juridical and social status. Observers of states undergoing both political and economic
liberalization decry the emergence of "delegative democracy," which is characterized by
"low-intensity citizenship". More and more legal citizens lack effective accountability for
power relationships; their lives depend on distant investment decisions, organizational
resolutions, religious edicts, and information campaigns. "Economic liberalization is
exacerbating the gap between rich and poor within virtually all developing regions. At the
same time, other elements of globalization are increasing the inequalities of political
power and influence, as well as highlighting new dimensions of inequality. For one group
of countries globalization is eroding the cohesion and viability of the state. These global
forces are often translated into local conditions in opaque ways, which deepens the gap of
information, knowledge, and control further. Since migration is the transnational flow
with the strongest claim to state control, it is interesting that Maher and Cabezas each
note a "citizenship gap" both for aliens to developed countries and citizens of developing
countries (vis-à-vis tourists).

Beyond these general trends of accelerating threats and declining opportunities, the
impact of globalization on human rights conditions differs in different types of states.
Many analyses of transnationalism suggest that the impact of global forces on various
issue-areas is filtered by domestic characteristics —even straightforward economic effects
depend on a state's factor endowments, economic institutions, and policies. One scholar
outlines a general pattern of types of states with different patterns of international
interaction: pre-modern, Westphalian modern nation-states, and postmodern, with the
former and latter departing significantly from standard scholarly assumptions of
sovereignty, anarchy, and self-help.

We can further develop these distinctions, and the tendencies of different types of
globalizing states for human rights performance and the citizenship gap. First, in
collapsing and "failed" states such as large sectors of Africa, foreign aid and international
organizations often simultaneously prop up power vacuums and assist victims.
Globalization brings increased market flows and weak intervention, but little
accountability and no definitive governance. Here, the citizenship gap is most severe, as
victims lack control at the community, state, and international level.

UNIT FIVE
HUMAN RIGHTS AND HUMANITARIAN ASSISTANCE
5.1. The Meaning of Humanitarianism and humanitarian Intervention
In its most general form, humanitarianism is an ethic of kindness, benevolence and
sympathy extended universally and impartially to all human beings. Humanitarianism has
been an evolving concept historically but universality is a common element in its
evolution. No distinction is to be made in the face of human suffering or abuse on
grounds of tribal, caste, religious or national divisions

Humanitarianism is an ethic of active compassion, which became expressed in

philanthropy and social welfare. From an exclusive concern with charity, humanitarian
action was led increasingly to vindication of the respect owed to the individual human
being. This idea, originating in stoic natural law, became, in its Christian and secular
manifestations, an important influence in European thought. Not immediately, but
eventually, denial of the spiritual equality inhering in every human being became the
touchstone of 'wrongness' in humanitarian action.

What is humanitarian intervention?

There are two fundamentally different paradigms of activities that have been termed
‘humanitarian intervention’. The first, the ‘classic’ paradigm involves the use of force by
one or more states in the territory of another for the declared purpose of protecting the
latter’s people from human rights violations. But even within this basic paradigm,
different commentators view what constitutes a humanitarian intervention differently.
Some view it broadly, as the use of force by one state in another state to protect anyone,
including its own citizens from human rights violations. Other would restrict it to actions
involving the use of force by one state in the territory of another in order to protect
indigenous populations and would define acts intended to protect nationals of the
intervening state as acts of self-defense, not ‘humanitarian intervention.’

The second paradigm of activities defined, at least by some as acts of humanitarian

intervention are those that involve the direct provision of humanitarian services (e.g.
medical care, food, shelter) in the territory of other nations without the consent of the
recipient nation. Such activities may be undertaken either by a state or non-state actors-
examples would be the intervention of the International Committee of the Red Cross
(ICRC) or Doctors Without Borders in a nation suffering a humanitarian crisis, without
the explicit consent of host states. Such activities fall under the definition of humanitarian
intervention, supporters argue, because they involve the intervention of outside parties in
a state without its consent, with the stated purpose of preventing human rights abuse and
alleviating a humanitarian crisis.

5.2. Evolution of Humanitarianism

The universality of Humanitarianism is exemplified in one of the first statements of the

ethic, the New Testament parable of the Good Samaritan. The answer to the lawyer's
question -- 'And who is my neighbor?' is that 'your neighbor' is anyone in need who you
can help.

The Enlightenment advanced the idea that humanity could be improved by reform of
laws and change in social structure. This idea combined with the humanitarian ethic of
active compassion. Both became the impelling influences upon humanitarian social
action from the 18th century.

Humanism is associated with the Renaissance and the revival of classical learning which
took place in the 15th century. This cultural and educational strand is not part of
Humanitarianism but both Humanitarianism and Humanism share a common view as to
the importance of 'Man'. Unlike Humanitarianism, humanism tends to exclude any
religious basis for that importance. A major difference is that Humanism was not
impelled to engage in action to protest abuses or move collectively for the relief of
human suffering. Nevertheless, in so far as the Renaissance was a precursor to the
Enlightenment, humanism and humanitarianism shared the value of autonomy,
articulated in the Enlightenment, and both equally rejected superstition as a justification
for socially approved cruelty.

In the 18th and 19th centuries the ethic of active compassion coalesced with other ideas
and the interaction resulting from this turned humanitarianism in the direction of reform
These accompanying ideas were: rationalism, individualism and of the concept of social
and legal reform.

5.3. The Idea of Social Reform

The Enlightenment idea of reform combined with the ethic of active compassion to
inspire the social action of the humanitarian movement. It was explained that the
humanitarian movement was a product of the influence of rationalism upon Puritanism.
“The rationalist movement had shaken the persecutor’s sword from the hand of faith and
religion had been to school with her rival reason.

The reformers diverged widely in their underlying beliefs but were united in their
humanitarianism. Thus the Christian individualism of the Quakers, that each person
shares the ‘inner light’ and the Arminianism of the Evangelicals were both differently
based from the Lockean or Kantian individualism or a Utilitarian, but all recognized the
equal moral significance of the human person and that the disregard of it was wrong.
What also united them was the new idea of reform to remove those wrongs. Therefore, in
many of the major areas of humanitarian reform, Christians and rationalists worked
together: in the case of slavery.

The idea that humankind could be improved by deliberate social change as distinct from
the conferring of charity and the doing of ‘good works’ was relatively new. For all intents
and purposes social and legal reform was a product of the Enlightenment. Its origins lay
in the belief in the dominance of reason and that ‘Man ’ was perfectible, if only the social
conditions in which he or she lived would allow it.

Most Enlightenment thinkers believed ‘man’ to be fundamentally good: “he was once free
but is now everywhere in chains”. Voltaire in his Portable Dictionary said that “it is want
that subjects one man to another.” Mankind would be perfected by knowledge – hence
the great Encyclopaedia of Diderot and D’Alembert. Helvetius (1715-1771) made this
philosophy very popular. He believed human character to be a product of social
environment. The chief instruments enabling this to be done would be education and
legislation. There thus grew up the demand for legal reform. If ‘laws are good, morals are
good’ said Diderot.

Reform distinguished the humanitarian movement from charity and philanthropy.

Speaking of the charitable and philanthropic institutions of the 19th century industrial
era, Ernst Troeltsch said, “their aim was a new spirit, not a new society. ” Christian
philanthropy tended to deprecate reform as political. For the humanitarian movement,
however, removal of the abuse causing suffering was the essence. The goal in almost
every field of action undertaken by the humanitarian movement required changed social
conditions and in many instances this could only be brought about through legislation.

5.4. Individualism

The question arises as to the basis for the humanitarian movement's claim of ‘wrongness ’
in the social conditions which it sought to eradicate or reform. The criterion of wrongness
was not cruelty. It is true cruelty was often a manifestation of the social abuse or
‘wrongness’. Public reaction to cruelty was often vital to the mobilization of social action.
But it was not the criterion. If, in the case of slavery, it had been otherwise, the
movement would have been satisfied with improved treatment of the slaves. Historically,
both in ancient Rome and in the southern states of America, many masters and their
families were kind to their slaves and in late Rome and southern America, laws were in
force prohibiting maltreatment of slaves. But this was never the aim of the humanitarian
movement. It sought the abolition of slavery not its amelioration. The institution was
wrong. It was wrong even if no slave were suffering cruelty in the ordinary sense of the
term. It was wrong because by virtue of the institution of slavery the master was able to
subjugate the freedom and autonomy of another human being.

The principle of European individualism upon which the humanitarian movement was
based was that every human being was of equal moral significance and it was the
disregard of that moral significance which constituted the abuses against which the
movement was directed. European individualism can be traced to the Greeks. It was the
stoics, who like Aristotle, attributed significance to the human soul; but who, unlike
Aristotle, considered every human being equal in that significance. Natural law, as the
stoics conceived it, was based upon this principle of spiritual equality. Positive law was
subject to the law of nature and, hence, uniquely to the ancient world, the stoics opposed
slavery.

Medieval Christianity both conserved and transformed the ideal, largely limiting equality
to the capacity of each believer to attain posthumous salvation. In 18th century
Enlightenment Europe, the individualistic idea of the equal moral significance of the
individual in ‘this-world’ re-emerged grounded upon reason and personal autonomy, not
upon the equal capacity to escape damnation in the next world.

It was the disregard of moral significance in this sense which constituted the ‘wrongs ’
identified by the humanitarian movement and justified social action in the case of slavery,
the maltreatment of the working class in the 19th century; the brutality of criminal
punishments and the use of torture in the criminal justice system; the treatment of the
insane; the subjection of women to an inferior status and the inhumanities of colonialism.

Prevention of cruelty to animals involved an extension of the principle to non-human

animals. The stoics had grounded moral significance on capacity to reason. St. Paul and
St Augustine reflected this view and it became part of the Catholic tradition. But animal
nature, however perfect, is far from representing the human being in its completeness,
and it is in truth humanity’s humble hand maid, to serve and obey ”. The humanitarian
movement attributed moral significance to non-human animals and sought the
introduction of laws to protect them.

5.5. The Core Principles of Humanitarianism

There are many principles of humanitarianism. The following are among the most
important ones:

5.5.1. Relieve life-threatening suffering

Humanitarian action should be directed towards a relief on immediate life-threatening
suffering. Rather than acting on humanitarian concern, the international community
frequently allows its response, or non-response to be influenced by other considerations.
For instance,
 The injection of political agenda may motivate the type of response or non-
response
 Bureaucratic inertia-Governments also tend to be lethargic in the face of human
cataclysms.

5.5.2. Proportionality to need

Humanitarian action should correspond to the degree of suffering, wherever it occurs. It
should affirm the view that life is as precious in one part of the globe as another. This
idea of proportionality seems self-evident and unobjectionable.

5.5.3. Non-Partisanship
Humanitarian action responds to human suffering because people are in need, not to
advance political sectarian or other extraneous agendas. It should not take sides in
conflicts.
5.5.4. Independence
In order to fulfill their mission, humanitarian organizations should be free of interference
from home or host political authorities. Humanitarian space is essential form effective
action.
5.5.5. Appropriateness
Humanitarian action should be tailored to local circumstances and aim to enhance, not
supplant, locally available resources. Considerations of appropriateness require using
humanitarian initiatives to strengthen local capacity while taking into account local
cultural characteristics that don’t contradict international norms.

5.5.6. Contextualization
Effective humanitarian action should encompass a comprehensive view of overall needs
and of the impact of interventions. Encouraging respect for human rights and addressing
the underlying causes of conflict are essential elements.
5.5.7. Accountability
Humanitarian organization should report fully on their activities to sponsors and
beneficiaries. Humanitarian activities should be transparent.
5.5.8. Subsidiary of sovereignty
Where humanitarianism and sovereignty clash, sovereignty should defer to the relief of
life threatening suffering. This principle is undoubtedly the most controversial. In today ’s
world apparently, the centuries old doctrine of absolute and exclusive sovereignty no
longer stands and was in fact never so absolute as it was conceived in theory. This new
openness at the international level to attach greater relative importance to humanitarian
imperatives has not made itself felt uniformly among governments, nor have new
procedures been devised to translate those imperatives into political action.
5.6. Relationship between International Humanitarian Law and
International Human Rights Law
Humanitarianism and Human Rights are closely associated. Both movements are
grounded upon the moral significance of the individual human being. However,
compassion and the alleviation of suffering are not necessary in order to give effect to a
human right; and thus that original and basic element in humanitarianism forms no part of
'Human Rights'. The question though, in relation to humanitarian reform, is whether the
denial of a human right and the abuses which humanitarians seek to reform, are
generically the same or differ and, if so, in what way.

Humanitarianism did not campaign against abuses on the ground of human rights but in
the name of humanity. The wrongs which the Humanitarian movement addressed related
to violation of moral duties imposed upon State or Society in relation to the treatment of
human beings. These duties are substantially unqualified and do not depend upon the
consent or absence of consent of persons affected. Thus, under international law slavery
and the slave trade are absolutely prohibited. There is no emergency or other exception.
Torture is similarly absolute. A 'right', in the strict sense, requires a 'right-holder'. It is the
negation of a right if the person advantaged has no option whether to make or decline to
make a moral claim. The duty consequent upon a right may not arise until the right has
been exercised. The moral claims of slaves and of forced labourers exist independently of
their objection. Slavery, torture, cruel punishments cannot be absolved by consent.

Indeed, the word “humanitarian” has become associated with all that is humane and
positive. Like human rights, it implies helping those in need. In the case of
humanitarianism specifically, and to distinguish it from human rights, this need has been
constructed around helping victims. Humanitarian action may, for example involve
helping victims of natural disasters, as in the recent operations in Central America. Our
concern here, however, is more specifically with helping victims in times of armed
conflict. It is important to remember that international humanitarian law comprises the
laws of war. So the humanitarianism we are focusing on is specifically linked to violence.
Without war, there would be no humanitarian law; without war, there would be no
humanitarian space.

5.6.1. International Humanitarian Law

International Humanitarian Law (IHL) can be defined as the branch of international law
limiting the use of violence in armed conflicts.
This definition leads to the basic principles of IHL
 the distinction between civilians and combatants:
 the prohibition to attack those horsed combat;
  the prohibition to inflict unnecessary suffering;
 the principle of necessity; and
 the principle of proportionality
This definition however also shows the inherent limits of IHL
 it does not prohibit the use of violence;
 it cannot protect all those affected by an armed conflict;
 it cannot distinguish according to the purpose of the conflict;
 it cannot prohibit a party to overcome the enemy;
 IHL presupposes that parties to an armed conflict have rational aims.

5.6.2. Relationship between International Humanitarian law and human

rights law
Many believe that the close relationship between these two areas existed and was
perceived “from the outset”. That is not at all the case. Formerly assigned to separate
legal categories, it was only under the persistent scrutiny of modern analysts that they
revealed the common attributes which would seem to promise many fruitful exchanges in
the future.
The relationship between International Human Rights law and International
Humanitarian Law (IHL) is one that is very much discussed in the literature. The
discussions on the relationship are based on the substance of the two branches of laws
and very rarely do they consider the procedural or the enforcement aspect. The
discussions, as we can see later, are mainly from the standpoint of the law of human
rights and not from that of humanitarian law. Even so, the relationship discussions do not
seem to be broad enough as to include the whole aspect of human rights law. It basically
focuses on individual rights.

International human rights law is applicable in time of peace, in states of emergency;

States are, however, allowed to suspend certain rights, save the non-derogable ones, as a
corollary of their sovereignty when circumstances that threaten the life of the nation arise.
Such one situation is war or armed conflict.
The laws that are applicable in such situations are both law of armed conflict and the non-
derogable aspect of human rights law. Some authorities describe this situation as one of
complementarily while others see it as an overlap and still others opine that one is an
aspect of the other. There are still other classes of writers who hold that as the two
branches of laws are developed in different political sphere, they have substantive
differences and yet they converge at some point, particularly after the 1968 Tehran
International Conference.

As discussed elsewhere in greater detail, the literature discussing the relationships is

diverse. It is, however, summarized here into four categories-complementarity, overlap
and convergence between the two and one forming part of the other. These identified four
relationships are not the only relations, nor are they a perfect description of the
relationships. Because they are not critically examining the relations and because they are
made only from the human rights perspective, they do not seem to be well considered and
elaborated to the extent that they underline the accomplishments that have been mode by
International Humanitarian Law. It is not an effort to create competition between the two
branches of laws here, but it is an effort to show how the two branches of law are so
connected so that one is performing the other ’s job. In this regard our discussion is
focused on both individual rights and group rights as protected by International Criminal
Law with a view to bring about better protection of rights.

The discussion from the human rights perspective covers only individual rights. Group
rights seem to be nowhere in the discussions. Group rights are highly politicized and in
recent years they are excluded from the agenda of the General Assembly. IHL seems to
be rescuing the rights of groups through recognition of the new international crimes
against humanity and the crime of genocide. Hence, apart from other immense
accomplishments IHL has made in the formative years of international human rights law
and beyond, it is still taking the place of human rights law and performing the things that
are supposed to be within the purview of the latter.
The relationship between the two branches of laws is such a diverse one that it cannot be
dealt with in a section. At this level, our discussion of their relationship is limited to some
aspect of international human rights law and again some aspects of international
humanitarian law as they appear before the International Criminal Tribunals (ITTS).
Those crimes that appear before the ICTs are the crime of genocide, crimes the crime of
genocide, crimes against humanity, war crimes, and the crime of aggression (crimes
against the peace seem to have been overtaken by the crime of aggression). Arguably, the
crimes of aggression and, to some extent, war crimes seem to be within the proper ambit
of IHL. The strong connation between the two branches of laws seems to be most clearly
seen in respect of crimes against humanity and the crime of genocide.

The three identified major areas of relation between of laws are:

1. IHL existed before human rights law and it protected human rights without
bearing the label human rights, a term which is coined later,
2. Mutual influence of the two IHL has contributed to the development of
International Human Rights law and is largely responsible for the shape and
content of the latter while it also has been influenced by human rights law in its
later development and concern, which resulted in increasing overlap and
convergences.
3. Even when international human rights law exists, IHL protects certain category of
rights, which are found to be highly politicized and not readily prosecutable by
human rights law, such as group rights.

The relationship between the two branches of laws is extensively discussed in the
literature. Those authorities do not determine the relationships though, in some cases,
they employ two or more words having different meaning interchangeably.

The widely discussed relation between the two branches of laws is the complementarily
relationship. Many writers opine that the relationship between international human rights
and IHL is based on the analysis of the time of application. They contend that almost all
international human rights instruments permit derogation from certain rights under
emergency circumstances of which is war. During such period, certain rights are
suspended to meet the exigencies of the situation. Some authorities held IHL is made
precisely for such situations.

Others argued that there are two kinds of reasons for the almost total independence of
international humanitarian law from human rights law immediately after the Second
World War. The first relate to the genesis and development of the branches concerned.
The law of war has its roots in Antiquity. It evolved mainly during wars between
European States, and became progressively consolidated from the Middle Ages. This is
one of the oldest areas of public international law; it occupies a distinguished place in the
writings of the classical authors of this branch. Its international aspect is also emphasized
by the contributions of Christianity and the rules of chivalry and of jus armorum.

Human rights are concerned with the organization of State power vis-à-vis the individual.
They are the product of the theories of the Age of Enlightenment and found their natural
expression in domestic constitutional law. The end of the 1940s was when human rights
law was first placed beside what was still called the law of war. The question of their
mutual relationship within the body of international law can be considered only from that
moment. But human rights law was still too young and undeveloped to be the subject of
analyses, which require a better-established sphere of application and a more advanced
stage of technical development.

The other reasons are institutional in nature. The most important one relates to the fact
that United Nations bodies decided to exclude all discussion of the law of war from their
work, because they believed that by considering that branch of law they might undermine
the force of jus contra bellum, as proclaimed in the Charter, and would shake confidence
in the ability of the world body to maintain peace. In 1949, for example, the United
Nations International Law Commission decided not to include the law of war among the
subjects it would consider for codification. This attitude can be understood only in a post-
war context; it had already existed in the 1930s. In addition to this there was a certain
dichotomy between the ICRC and the United Nations, which was only partly due to the
latter’s elimination of the law of war from its discussions.

A more profound reason was the ICRC’s determination to preserve its independence, a
determination which was strengthened by the political nature of the United Nations.
Human rights, which were seen as being within the purview of the United Nations and
bodies specifically set up to promote and develop those rights, were thus distanced from
the concerns of the ICRC, which continued to work solely in the area of the law of war.
These institutional factors affected the development of the rules: the United Nations, the
guarantor of international human rights, wanted nothing to do with the law of war, while
the ICRC, the guarantor of the law of war, did not want to move any closer to an
essentially political organization or to human rights law which was supposed to be its
expression. The result was a clear separation of the two branches.
6.7. Humanitarianism and Human Security
6.7.1. The concept of Human Security
As a social construct many interpretations and those who promote it are still struggling to
formulate an authoritative and consensual definition. But the idea clearly has roots in the
central principle of international humanitarian law-to civilize warfare and to aid its
victims.
A more immediate origin of the term is found in the 1994 report of the UN Development
programme (UNDP). Human Security appears here as part of a vision for a ‘people-
oriented economic development’. While offering an imprecise and controversial
definition, the starting point for the UNDP was poverty rather than war-but ‘security ’
suggested an escape from them.
However, both physical and economic security are incorporated later. Accordingly, in
essence, human security means safety for people from both violent and non-violent
threats. It is a condition or state of being characterized by freedom from pervasive threats
to people’s rights, their safety or even their lives. Thus, from a foreign policy perspective,
human security is perhaps best understood as a shift in perspective or orientation. It is an
alternative way of seeing the world, taking people as its point of reference, rather than
focusing exclusively on the security of territory or governments.
But, there are no easy answers to such questions as, who is going to provide the security?
Specifically, what are the limits of humanitarian intervention? How is security to be
provided? Specifically, how can assistance or sanctions be operationalized so as to
minimize rather than increase human suffering? When objectives conflict, which interests
are to be served?

There are two possible starting points for exploring the substantive core of ‘human
security’. One is in relation to the security of states, the other in relation to human
development.

The UNDP report examines ‘human security’ in relation to ‘human development ’ drawing
on notions of justice that appeared in the development literature in the 1970s. At that
time, ‘human development’ served as a counterpoint to economistic and growth-oriented
concepts of development, where the objective was to produce material goods and human
were viewed mainly as inputs of labor.

By the late 1990s, the notion of ‘human centered development gained momentum. The
common core was an emphasis on equity and the need to reduce the number of losers in
the development process. Accordingly, ‘Human Security’ was presented both as an end-
state of affairs-‘safety from such chronic threats as hunger, disease and repression and as
a process in the sense of ‘protection from sudden and hurtful disruptions in the patterns of
daily life.

The core of human insecurity can be seen as extreme vulnerability. The central task of a
policy inspired by human security concerns would therefore be to protect those who are
most vulnerable.

However, the reasons why we are obliged to protect the vulnerable remain controversial.
According to contemporary moral philosophers, the rationale lies in our responsibility for
the misfortune of others, and the ultimately weak distinction between negative and
positive duties (i.e. to refrain from doing something harmful, or to do something
beneficial respectively). There are three categories of extremely vulnerable persons.
 Victims of war and internal conflict
 Those who live close to the subsistence level and thus are structurally positioned
at the edge of socio-economic disaster and
 Victims of national disaster
6.7.2 Human Security Regime to Protect the Vulnerable
If the essence of human security is reduced vulnerability, policies to this end could be
aggregated into a ‘human security regime’ designed to protect categories of extremely
vulnerable persons. Hence, the international systems developed to aid the victims of
armed conflict and natural disasters are probably most developed, although incomplete.

The present international regime to protect and assist victims of war and internal conflict
has largely developed since WWII. There is both an international refugee regime
(institutionally centered on UNHCR and normatively on the 1951 convention), and an
International humanitarian regime (institutionally centered on the UN humanitarian
agencies and the ICRC, and normatively on the 1949 Geneva Conventions and the 1977
Additional Protocols). Recent years have seen an explosive growth in NGOs and other
institutions to help both refugees and victims of internal conflicts in situ.
Strategies for further strengthening the international regime to protect victims of conflict
involve three distinct elements
 Developing norms
 Strengthening institutions (national and international)
 Operationalizing and implementing strategies
Further, norm development entails
 The elaboration and codification of rights, as well as standards for compensations
that apply to particularly vulnerable people who are negatively affected by
development projects
 The clarification of rights and establishment of safety nets for those most hurt and
least able to compensate for losers incurred by structural adjustment policies and
  Similar safety nets for ‘the very vulnerable’ whose income or assets are arbitrarily
confiscated by state or local authorities.
6.7.3. Politics in Humanitarian Affairs
There has been a recent growth in “humanitarian affairs ”. Whether it be in the budgets of
organizations specializing in humanitarian matters, the labelling of conflicts as
humanitarian crises, concern about humanitarian action, or even the creation of the post
of Under-Secretary-General of the United Nations in the new Office for the Coordination
of Humanitarian Affairs. There is no question that the word “humanitarian ” is much in
evidence today as a descriptive term for certain events and activities. At first glance this
seems a favourable development. Concern for “humanitarian affairs ” like concern for
human rights appears to indicate a progressive move towards greater attention to
individuals and to their personal safety. Like motherhood and apple pie, greater attention
to “humanitarian affairs” is something no one should be against.
If we assume that war and violence are extensions of the political, then we understand the
traditional description of humanitarian space as an area separate from the political, and
that this separation is a critical ideological concept that is fundamental to organizations
like the International Committee of the Red Cross (ICRC). Impartiality, neutrality and
independence are predicated on separating the humanitarian from the political. One acts
within the humanitarian space in the midst of, but separate from, the political. In this
sense, humanitarian law represents a beacon of hope, order and civility within the
barbarity of violence and chaos. The very fact that there can be humanitarian law in a
situation such as war is seen as one of the crowning achievements of recent history. To
have rules within the breakdown of accepted norms crystallizes man ’s efforts to
overcome his base instincts. Greater concern for humanitarian affairs would seem to
represent an important opening of space for human values and, at the same time, a
closing or limiting of the space for other less benign activities. Increasing the
humanitarian space has inherent implications for the political and the relationship
between them. It seems obvious that space can never be ever-expanding. Therefore, if
humanitarian space is increased, or at least concretized, there is less space for the
political/violent. The separation of the humanitarian from the political has implications
for the occupation of a bounded area. Again, who could be against the expansion of
humanitarian space and the limiting of the political/violent?
In order to re-examine this position, and to show why one might be against the extension
of humanitarian space, it is necessary to go back to the fundamental premise on which the
preceding arguments are based. The separation of the humanitarian from the political
involves a long tradition in Western political thought and touches upon basic assumptions
about who we are and how we live. From Thucydides to Hobbes, from Machiavelli to
Weber, Niebuhr, Morgenthau and Kissinger, there had been a Realist political tradition
with deep religious undertones and important political ramifications. The basis of this
tradition, perhaps best expressed in the theology of St Augustine, is the notion of a fallen
world and the separation of that fallen world from the City of God. Because this world is
fallen, the tradition goes, man is limited in what he can achieve without divine assistance.
Any human action without intervention, therefore, must be limited in its scope and bound
up in the necessarily “messy” affairs of that which is inherently fallen and evil.
In other words, according to the Realist tradition politics must be dirty. Decisions such as
the fire-bombing of Dresden and the atomic bombing of Nagasaki and Hiroshima are
typical examples of what politicians must do. Ethicists study these cases under the title
“the problem of dirty hands”. Any political action in this world, say the Realists, must be
tainted since the very arena in which the action is taking place is fallen.
And, according to this world view, within this fallen world humanitarianism becomes a
tiny, possible opening which much be kept separate from the political.
For humanitarianism, unlike the political, does not involve national interest or power.
Humanitarianism is a space that, while not quite divine, is separate from the “messy ”
affairs of the fallen world. In addition, the greater the interest in humanitarian affairs and
the greater the space this occupies, the smaller the space for the political, given the zero-
sum game we mentioned before. As Adam Roberts has noted in another context but
mirroring this line of reasoning: “The increase in humanitarian efforts in the 1990s
contained many elements of idealism, not least a hope that it was part of a larger process
whereby the sovereignty of states would take second place to the human rights of
citizens”.
All this seems rather obvious and is contained in the assumptions of most of the writing
on the political/humanitarian divide. The separation between the humanitarian and the
political is sacrosanct; the Realist tradition underlies almost all writing on the
humanitarian/political divide. And even if one gets behind simplistic notions of aid
agencies stereotyped as non-political, one is left with unsophisticated arguments about
how and why the becomes involved in the political, such as the following.

In reality, humanitarian actors are deeply involved in the political sphere. To do their
work, aid personnel and human-rights monitors usually require the permission of political
authorities, which include entry visas and residency visas and permits. Relief
programmes need duty-free entry for supplies, permission to exchange foreign currency,
and authorization to communicate regularly and freely with their respective headquarters.
Particularly essential but also especially sensitive in times of armed conflict, aid agencies
need access to distressed populations. But what would happen if we began from non-
Realist assumptions? That is, what would happen if we began from the assumption that
this world is not fallen, and that politics does not exist in a tainted environment? In other
words, what if we began from the assumption that the political is not inherently evil, and
that the humanitarian should not (cannot) be separated from the political? Or, more to the
point, what would happen if we examined the notion that it is a very political move to
separate the political from the humanitarian, and that Realism has its own politics?

Philosophically first, and then practically, this is a line of reasoning that has been taken
up recently by more and more scholars. Much of the current post-structuralist research in
international relations has attacked Realism, pointing out that it is a very particular way
of looking at the world which was formed at a particular moment for a particular purpose.
Re-readings of many of the canons in international relations such as the works of Hobbes
and Machiavelli have opened up new possibilities in a number of areas, but the
humanitarian/political divide has not yet been properly problematized.

Humanitarian organizations are not equipped to handle political crises such as civil wars
or the collapse of governments. Because “political” organs such as the United Nations
General Assembly and the Security Council are unwilling or unable to deal with these
situations, a political move has been made to call the situations “humanitarian ” and to
involve relief organizations in political crises. Indeed, numerous Security Council
resolutions since 1989 have addressed humanitarian issues arising from armed conflicts.
One reason for the UNSC’s astonishing attention to humanitarian issues is that, in a 15-
member body, it is easier to reach agreement on the lowest common denominator of
humanitarianism than on more partisan or risky policies”.
Within this policy vacuum, the humanitarian space given to those organizations is
inherently limited since the abnegation of responsibility allows a mixture of activities to
take place at the same time. Innumerable discussions about differences between peace-
building, peace-making and peace-enforcement highlight the unfortunate situations in
which organizations like the ICRC find themselves today when their humanitarian space
is not clearly defined. Complex emergencies also call for complex responses, with the
humanitarian community playing a limited role. Humanitarian space has traditionally
been a limited space within given parameters. If those parameters disappear or are not
clear, the humanitarian space does not expand automatically. In fact, without the
parameters, that space becomes more diffuse and may even disappear. Part of the re-
examination of the humanitarian/political divide is a re-examination of the zero-sum
game assumption that the growth of humanitarian space limits the political/violent.

For example, if one examines much of the current literature on complex emergencies, one
enters into systemic analyses of the relationship between human rights violations and
violence. That is, one enters into mono-causal arguments that can lead certain complex
emergency theorists to suggest that aid may in fact be allowing, if not producing, famine.
Without going into the details of the argument, what we wish to emphasize here is that
attempts to systematize the causes of conflict often lead to dichotomies similar to the
Realist paradigm we pointed to earlier. And an organization like the ICRC which begins
from a set of principles based on many of those dichotomies may find itself in situations
where its efforts are counterproductive for those it is trying to help. In this sense,
upholding humanitarian principles is a political move that may undercut the ethical basis
of the organization’s activities. That is, by accepting the humanitarian/political divide and
accepting mandates for operations called “humanitarian”, organizations like the ICRC
may in fact be working against their own objectives. Paradoxically, a practical conclusion
of the situation we have described is that it may be necessary to limit humanitarian space
and reduce humanitarian activities. Our argument is that if the root causes of the conflicts
are properly addressed and “response-ability” developed, then when conflicts arise
humanitarian organizations will have limited functions.
For example, for an organization like UNHCR to be involved in rootcause alleviation is
to go beyond its major protective function. The fact that the political/economic root
causes are not being addressed by the proper organs does not justify expansion of the
humanitarian space. As we have argued, diffusing the humanitarian space may cause it to
disappear, not to expand. For, as in the case of UNHCR, increasing the humanitarian
space gives rise to illusions because of the considerable differences between expectations
and capacities, and may prove to be counterproductive to helping victims. Indeed,
UNHCR, after an important period of expansion, has begun to scale down its space and
to return to its primary objective, namely protection, perhaps indirectly recognizing that it
had become a victim of its own success through bureaucratic overreach.

The expansion of the humanitarian space, we would argue, has not been helpful.
Although this is counterintuitive, we have tried to show why it is so. The political move
of focusing attention on the humanitarian has shifted attention away from the politics at
the heart of conflicts and deflected responsibility for some kind of resolution from the
proper organizations. It is always difficult for an organization to refuse a mandate, or to
say that a particular problem is not its business.

The ICRC has tried valiantly to remain within its basic principles, and to remain faithful
to its limitations. Nonetheless, the general increase in humanitarian activity has drawn the
ICRC into situations in which its limited, specific mandate has been called into question.
That limited role is not the subject of this reflection. Rather, we are concerned here with
the original problem of when and where humanitarian organizations are called in. We
look forward to the day when the heads of humanitarian organizations will throw the ball
back into the court of the proper political organs in a political gesture of self-denial that
we feel will be helpful to the victims of abuse.
Those are the “pre-original political decisions”, and a firm denial of the Realist tradition.
For if this world is not fallen, then the ethical can exist, although the decisions will not
necessarily be based on some overarching principles and traditions etched in stone. To
recognize that the ethical and the political cannot be separated is to recognize the
difficulties inherent in living in this world. Much of the writing on humanitarianism is
filled with a dangerous idealism of other-worldly dimensions. While people like Robert
McNamara can be criticized for ordering bombing raids from Monday to Saturday and
then peacefully going to church on Sunday, idealists can work in the same fallen world
from Monday to Saturday and attend the same church on Sunday, for they live in a
similar Realist world. Idealism and Realism are different sides of the same coin. If we are
to move away from the bombings, then we must also move away from the idealism. The
separation of the humanitarian from the political is part of a world in which both have
specific places through a very particular relationship. Reducing the divide between the
two opens up a whole host of new possibilities.
Again, and to be perfectly clear, this reasoning is not meant to deny concern for victims
or the difficult ethical/political decisions involved in trying to help. Rather, it is intended
to initiate a new debate about the proper relations between people categorized as victims
and those people or organizations trying to assist. The categorization of certain activities
as humanitarian and others as political with their radical separation has not been helpful
for the resolution of conflicts and the eventual targeted aid to victims. A small step in
rethinking that categorization would be to understand the ontological nature of the
categories and the political moves made to separate the two spheres.
For example, questions faced by the ICRC operationally such as: “Should aid be given to
populations which are either supporting aggressors or which are unable to keep aid from
aggressors?” are intimately tied to political realities. Helping victims in these situations
belies the impartiality and neutrality of visiting prisoners, for example, although choosing
not to testify about human rights violations once again places the political in the
forefront. The decision not to testify about human rights violations is a very political
decision, given legal conventions outlawing certain behavior. The ICRC has clearly
chosen to place certain priorities above others.
These types of operational decisions show the limitations of the political/humanitarian
divide and the politics of humanitarian activities. Given the increasing number of those
activities, greater transparency in discussing the nature of the decisions would be to
everyone’s benefit. In order to achieve that, recognition of the politics behind the
political/humanitarian divide is a first step which should include a re-examination of what
humanitarian can mean. For to re-examine the political/humanitarian divide is not to
suggest, that there is no space for humanitarian activities. Rather, it is to place the
humanitarian squarely within the political and in so doing to offer greater possibilities not
just to victims, but ultimately for a reduction in the number of victims. In order to do that,
humanitarianism must be reinvigorated, politically. And this reinvigoration paradoxically
includes the implosion of the political/humanitarian divide and the eventual
circumscription of humanitarian activities.

6.8. State Failure, Sovereignty and Humanitarian intervention

6.8.1. The Features of Failed States
The inequalities in living standards and participation in the global economy are a serious
political problem in an era of globalization. Some countries have been unable to function
at even a minimum standard of basic competence in the globalized economy. The only
profitable economic activity in some of these countries is linked to criminal behavior,
such as the trade in illegal drugs, smuggling, and extortion of various kinds. Governments
that are helpless to stop such activity or to collect taxes to meet basic public service needs
are characterized as failed states.
Sometimes failed states can become havens for terrorists and foreign criminals who use
them as bases for activities harmful to other governments and their people. These states
may also provide safe haven for mercenary forces that conduct raids into neighboring
countries. In parts of Africa, for example, where diamonds and other valuable resources
attract criminal despots, mercenary armies have been engaged in mass killing to terrorize
local populations into giving them what they want. The international arms trade and easy
importation of weapons, which allows such behavior, is a serious problem.
While it is universally recognized that states are responsible for human rights condition
their jurisdiction, it is less often noticed that this responsibility has two dimensions, one
normative and one empirical. Normatively, most people agree that stats ought to prevent
human rights abuses. Empirically, however, states may not always be able to do so. In
weak and failing states, agency loss and the inability to police effectively can lead to
abuses by private individuals and rogue agents of the state. This on balance, weak states
typically have worse human rights records than strong ones.

There is an implicit tension in the relationship between states and rights: States are
simultaneously a threat to human rights and their principal protection. Many states are
weak, plagued with corruption and unable to effectively police their territories.
Weak states are those that have difficulty delivering services to citizens, owing to lack of
resources, corruption, poor infrastructure and so on. This includes the most basic service:
security. Failing states are a subcategory of weak state, in which there is armed
opposition to the government. There is also difference between failing states and failed
sates, where opposition is active in the former and opposition movements have destroyed
the central government but have been unable to reconstitute a new order.
6.8.2. Agency loss, poor policing and Human Right Violation
The presumption that states are responsible for rights is found on the legal theory of
sovereignty. Theoretically, sovereign states have legal supremacy over their territories:
No greater authority exists. It has long been recognized that this legal supremacy is
fictive in many places. States are not always able to control their own territories or
otherwise realize the authority with which they are theoretically endowed. Some others
argue, empirically the state must be treated as a variable rather than the constant
supposed by legal theory.

One useful way to think about this difference between the state in theory and in practice
is through principal and agent theory. Although governments as principals have the
authority to give instructions to their agents, agents may or may not comply. If agents fail
to accomplish what their principals intend, this is described as agency loss, a central
problem in principal-agent theory. Principals may be unable to control the behavior of
agents because of information asymmetries or because of conflicting incentives. In the
former case, the agent often knows more than the principal and may have incentives to
conceal information displeasing to the principal. In the latter case, the agent may want to
do things that the principal doesn’t want, or may have an incentive that does motivate the
desired behavior.

Scholars have insightfully applied principal-agent theory to human rights abuse. They
assume that human rights violations are a policy. As with any policy, agents of the state
must be given incentives to carry it out. They recognized the problem agency loss, but are
their major examples of this phenomenon are instances in which principals surrendered
control intentionally in order to reward followers or inflict cruelties while denying
culpability. For instance, principals may exploit agency loss by creating ‘artificial
information asymmetries.’ Choosing not to know what agents are doing in the expectation
that they will likely commit abuses.

Agency loss and poor policing occur to some degree in all countries but most widespread
in weak and failing states. In these ‘lame leviathans ’ resources available to pay salaries
and monitor employees are limited, encouraging corruption.

6.9. Sovereignty and Human Rights

Protection of sovereignty was at the heart of the formation of the UN. After the turmoil of
both the First and Second World Wars, the states that convened to create the UN were
determined to save succeeding generations from the scourge of war. The UN Charter
codified and strengthened the existing international system based on the sovereign
equality of states in order to reduce the threat of war and international strife.
But the need to protect human rights, it is argued, conflicts with state sovereignty: an
argument that has gained momentum in recent years. Globalization has impacted both the
concept of national sovereignty and human right.

Externally, the imposition of neo-liberal economic policies and the enforcement of

structural adjustment programmes, the opening up of national economies to ‘free trade ’
and the unmitigated exploitation of resources have rendered such nation states vulnerable
to the depredation of globalization, better termed corporate globalization. Internally, this
has put them at risk of social, structural and economic breakdown; susceptible to conflict
over borders; to armed opposition groups: to struggle over resources, to civil wars.
For these reasons, the gap between popular sovereignty and national sovereignty has
grown ever larger as nation states either use repression to maintain power against popular
will, or collapse into smaller ethnically-defined territories, liable to conflict and
instability.
Commentators have attempted to argue that ‘humanitarian interventions ’ are permitted
under international law, despite the UN Charter’s protection of sovereignty and
limitations on the use of force, in several ways. First, all emphasize the importance that
human rights are granted in the UN Charter, in treaty law and in international customary
law. Article 1(3) of the UN Charter states that one of the purposes of the UN is to
‘achieve international cooperation in solving international problems of an economic,
social, cultural, or humanitarian character, and in promoting and encouraging respect for
human rights and for fundamental freedoms for all’.
In addition, Article 2(3) emphasizes that international disputes are to be settled in the
furtherance of justice, in addition to values of peace and security. Article 55 states that
‘the United Nations shall promote . . . universal respect for, and observance of, human
rights and fundamental freedoms for all’ and Article 56 states that ‘All Members pledge
themselves to take joint and separate action in cooperation with the Organization for the
achievement of the purposes set forth in Article 55 ’. Therefore, the Charter mandates all
members to make a commitment, in co-operation with the UN, to further human rights.
In addition to the provisions of the UN Charter protecting human rights, numerous
subsequent multilateral treaties have been implemented protecting human rights which
limit the sovereignty of states. These include Conventions on Torture, Genocide,
Refugees, Race, Children, Discrimination against Women, and International Covenants
on Civil and Political Rights and on Economic, Social and Cultural Rights. These
multilateral conventions, ratified by a super-majority of states, limit the range of
permissible actions that a state may take vis-a`-vis its own citizens, thereby limiting its
sovereignty. Although none of these conventions have a specific provision, allowing for
intervention in other states in order to defend the rights protected under them, their clear
message is that human rights are a matter of international concern, not purely within the
domestic jurisdiction of a state, and that the international community values human
rights, at least to some extent, over sovereignty. A super-majority of states have agreed to
this new paradigm. All of these conventions, combined with the Universal Declaration of
Human Rights (UDHR), have created an evolving customary international law that
protects human rights and limits sovereignty and that is binding on all states, whether or
not they have ratified existing human rights treaties.
The defenders of humanitarian intervention argue that all of these – UN Charter,
multilateral human rights treaties, and customary international human rights law – have
created a norm of international legal protection of human rights that is at least as
important as the norm protecting sovereignty and the norm of non-intervention. By virtue
of the fact that this norm, of necessity, involves the limitation of state sovereignty, human
rights can be seen as being given priority above sovereignty.
Existing international human rights law, it is argued, allows for states to engage in
‘humanitarian intervention’ because human rights law, being of at least equal, if not
superior, importance, provides an exception to the norms of sovereignty and non-
intervention. Essentially, ‘norms of non-intervention in addition to prohibitions on the use
of force are somewhat at odds with the contemporary view that the occasion of human
rights abuse provides legal and moral grounds for disregarding the sovereign rights of
states’. The solution to this dilemma, supporters argue, has been decided by the
international community through the importance that it attaches to human rights –
sovereignty must yield to human rights.
The attempt to resolve existing norms of sovereignty and nonintervention with norms of
human rights has given rise to at least two different arguments in support of humanitarian
intervention. Some holds that international law creates an obligation on states to protect
human rights and the international norm protecting sovereignty does not protect actions
that involve substantial violations of human rights. Therefore, ‘a government that engages
in substantial violations of human rights betrays the very purpose for which it exists and
so forfeits not only its domestic legitimacy, but its international legitimacy as well. ’
Thus, sovereignty can only be justified as long as the basic right to life is preserved. In
this sense, sovereignty is limited. Because substantial violations of human rights are not
actions covered by international norms protecting sovereignty, interventions to eliminate
substantial violations of human rights do not involve violations of sovereignty, but are,
instead, actions furthering international norms protecting human rights. Sovereignty has
been limited by international human rights law, it is argued, and humanitarian
interventions are legal because they do not violate this new conception of state
sovereignty. This argument is bolstered, say its proponents, by the series of ‘humanitarian
interventions’ since the end of the cold war which have been either supported or not
directly opposed by most of the international community.

A second argument holds that humanitarian interventions do not violate the provisions of
the UN Charter protecting sovereignty and limiting the use of force, regardless of
whether international human rights law has changed the notion of sovereignty. Focusing
on Article 2(4) of the UN Charter, Simon argues that a ‘humanitarian intervention ’ does
not involve the use of force for any of the three prohibited purposes. A humanitarian
intervention does not violate the territorial integrity of a state because it does not involve
the ‘permanent loss of a portion of one’s territory’. It does not violate the political
independence of a state because it does not involve the permanent abrogation of a state ’s
independence, but merely the elimination of activities that violate human rights. It does
not violate the UN Charter because this specifically states that one of its purposes is to
protect human rights; in fact, members of the UN must pledge, under the Charter, that
they will take actions to promote human rights. Therefore, one does not even need to
argue that emerging international human rights law has provided an exception to norms
of sovereignty and non-intervention. A humanitarian intervention does not involve a
violation of sovereignty or impermissible non-intervention at all and is therefore not
covered by those provisions of the UN Charter outlawing the use of force.

Commentators acknowledge that endorsing a right to engage in ‘humanitarian

intervention’ could lead to serious problems if it was used as a pretext for engaging in
interventions for self-interested purposes. Therefore, those who argue that humanitarian
interventions are authorized under international human rights law have proposed a
number of ways to ensure that actions taken under this doctrine are truly humanitarian;
that is, not used as a pretext to justify interventions undertaken for other reasons.

One of the more skeptical advocates of humanitarian intervention has suggested nine
‘procedural and factual requirements’ that would ‘form the basis for an appropriate and
balanced regime’ for ‘humanitarian intervention’. The first requirement he suggests is
proof that ‘widespread and grave international crimes, as defined in the Rome Statute of
the International Criminal Court, are being committed in a state and that this state
supports these criminal activities, acquiesces in them, or cannot control them ’. Second, ‘a
regional intergovernmental organization’ should give notice to the state that the crimes
are occurring, giving it the chance to rectify the problem. Third, the intervening parties
must exhaust all non-violent remedies to the problems, including ‘negotiations, political
initiatives, [and] non-forcible countermeasures (such as economic sanctions)’.

Fourth, the situation must be brought to the attention of the UN General Assembly and
Security Council and the intervening parties must receive explicit authorization from the
Security Council, under Chapter VII of the UN Charter, to use force to remedy the
problem. Fifth, the action must be taken by a regional or international organization or
coalition. Sixth, the target state should receive warning of the pending intervention.
Seventh, the states carrying out the intervention must consent to the jurisdiction of the
International Court of Justice (ICJ) over any claims made by affected states that the
intervention involved a breach of international law and to the jurisdiction of the
International Criminal Court (ICC) over claims that their nationals violated international
law during the intervention. Eighth, the intervention may only involve the minimal force
necessary to stop the human rights violations and the ‘requirements of international
humanitarian law [should be] strictly observed’.

Scholars, in discussing this requirement, has emphasized that any such U.N.-authorized
forcible intervention should be limited by the humanitarian objectives. The forcible
intervention should not be aimed at forcing governmental change in the invaded country
or at battling the national armed forces beyond what is necessary to secure the
humanitarian effort. Ninth, the intervening states must withdraw their forces once they
have ‘accomplished the appropriate objectives and the future is secured’.

Others have suggested yet more requirements. Accordingly, there must be evidence that
the populace as a whole desires relief. Recognizing ‘the effects of a tyrannical
government on the willingness or the ability of oppressed people to speak out ’, they
believe that this requirement should be interpreted liberally, while ensuring ‘that any
request for international relief comes from a person or organization that is truly
representative of the will of the oppressed populace’. It was also proposed that ‘a claim of
humanitarian intervention must be examined in light of the record of human rights of the
intervening country’

Others argue that the list advocated by the aforementioned scholars and others is too
restrictive and should be more permissive. Accordingly, it should not be a requirement
that humanitarian interventions be multilateral; in certain situations in which the
international system fails adequately to protect human rights, nations should be
authorized to intervene unilaterally. But before a nation engages in a unilateral
intervention, ‘the Security Council must actually have knowledge of the situation and fail
to act’. In addition, it is points out that ‘there is no immediate or completing guarantee that
armed force processed or authorized by an international institution for humanitarian
purposes will ipso facto be less open to abusive behavior’. The Security Council is
composed of nation states with political objectives and there is no reason, in logic or
history, to believe that these political considerations somehow evaporate when they get
together in international bodies. Thus, a unilateral intervention is not inherently more or
less open to abuse than a multilateral intervention, but a flat prohibition on unilateral
action would stop legitimate ‘humanitarian interventions’.

The requirement of multilateralism should include the proviso that the ‘Security Council
is deadlocked indefinitely on the issue and has not explicitly prohibited intervention ’.
Simon and others have also argued that nations engaging in ‘humanitarian intervention ’
need not be motivated solely by humanitarian concerns.
In most circumstances, with ample scrutiny in our highly integrated world community,
some self-interest can inevitably be found; however, if objectively a nation intervenes for
humanitarian motives, the fact that some self-interest may arise should not prevent the
nation from promoting human rights. As long as it is clear that humanitarian concerns are
the ‘overriding’ motivation behind the intervention, it should be allowed. In addition to
setting up a procedure, to ensure that ‘humanitarian interventions ’ are truly humanitarian
in nature, proponents of the doctrine have also addressed many of the concerns of
opponents.

Hence they identify what they believe are the three major objections. The first objection
is that the doctrine of humanitarian intervention is likely to be abused by powerful states
to pursue their own self-interested agenda in the name of human rights. But they reject
this on the grounds that ‘It is a big mistake, in general, to stop short of recognition of an
inherently just principle [merely] because of the possibility of non-genuine intervention ’.
In the words of one renowned scholar: ‘Obviously, what is needed is a system that
effectively targets the underlying problem of crime or human rights violations and not
one that eliminates the solution . . . humanitarian intervention, without implementing
another solution.’ The essence of this argument is that what is needed to prevent
humanitarian intervention being used as a pretext for self-interested interventions are the
proper safeguards, not the doctrine’s wholesale elimination.

The second objection cited is that the doctrine will be used selectively to promote human
rights for favored victims, while the plight of disfavored victims is ignored. To this, their
response is that some intervention for humanitarian reasons, even if biased in application,
is better than no intervention whatsoever to protect human rights. In their view, ‘Inherent
in the very conception of a right is an element of selectivity in the exercise of that right ’.
Thus states engaging in ‘humanitarian interventions’ have the proper authority to decide
when to intervene and when to abstain. Moreover, as the ‘natural human urge to help
those in need’ further develops, the doctrine will be used in a more universal manner.
Essentially, helping someone in need, even if the choice of who to help is biased is better
than helping no one in need.

The third objection cited is the lack of purely humanitarian motives on the part of
intervening states. But, they argue, ‘There is . . . something decidedly spurious about
making legal determinations on the basis of ulterior motives or hidden agendas. ’ ‘What
matters in such situations is not so much the nature of the motive . . . but the practical
outcome of the intervention in question.’ Therefore, if a state engages in an intervention
that has humanitarian outcomes, that intervention can be characterized as ‘humanitarian,
whether or not ‘humanitarian’ motives were at the forefront of the decision to intervene.
Essentially, as long as the doctrine promotes human rights, who cares what other
motivations nations may have? Fundamentally, the argument runs that, whether or not the
doctrine is perfect or the nations engaging in interventions are fully motivated by
humanitarian concerns, certain actions authorized as ‘humanitarian intervention ’ have real
world benefits in reducing human rights abuses. Human rights advocates should therefore
embrace the doctrine and, if any problems arise, attempt to amend it in such a way as to
better promote human rights. Complete rejection of the doctrine, its supporters argue,
leaves many people without a remedy for very serious human rights abuses.