Angelina Francis, III-year, BA (Prog) Psy-Socio

Q. Discuss the significance of UDHR in asserting human rights. Do you think they are
universal, explain?

A. In the last seven decades, the idea of human rights has witnessed an international and
domestic political uprise. People all over the globe use human rights as a powerful tool in
their struggles, pursuit of peace and activism. Post the grotesque atrocities of World war II,
there have been relentless efforts to establish universal principles across the globe to bring
forth individual dignity, liberty, economic equality, social justice and group identities.
Human rights are understood in ‘various meanings’ of context; individual and collective
rights, cultural and universal, prioritizing of rights, etc.

The concept of Human Rights-

Human rights are primarily based on the philosophy of 'moral and natural rights' as they are
the most basic rights pertaining to what is essentially human. The prefix 'human' to the
concept of 'rights, refers to the entire mankind in totality, without any predetermined
qualification. It is helpful to locate the concept within the discussion of rights, which
commonly resides in 'rectitude' and 'entitlement'. The former is a standard of moral conduct,
in terms of actions of the duty bearer's obligation. Entitlement is right over something and
individuals can demand that duty to be performed to fulfil their rights.

In the words of C. Kashyap (1978), "the fundamental norm governing the concept of human
rights are of respect for human personality and its absolute worth.” Therefore, the right
holders and duty bearers are intertwined.

Definition of Human Rights-

Human rights are defined differently by various schools of thoughts. They can be defined on
the basis of normative attributes, rights as entitlement to choose, etc:-

According to Barker (1951), they are external conditions necessary for the greatest possible
development of the capacities of the personality and for enjoyment of some particular status,
employing of particular power of action which has to be secured and guaranteed by law.
John Hoffman and Graham said, "human right is an entitlement to treatment that a person
enjoy simply by virtue of being a human-being".

The UN articulates human rights as an inherent in our state of nature and without which we
cannot exist as human beings.

It is essential to understand that Human Rights have evolved significantly. They derived
from natural rights. John Locke substantiated this theory by stating an individualistic
conception of rights, he said that the source of right is not the government or its law rather it
is a state of nature characterized by in absence of 'government'. For this, critics called it
"Possessive individualism". Burke called it "metaphysical abstraction". In 18th century USA,
rights were viewed as a duty in which all men are created equal and are endowed by their
creator with the inalienable right to life, liberty and pursuit of happiness. Marx was critical of
the individualist and universal premise of natural rights. He assessed the need for protection
from state power. Today, human rights have a Neo-Lockean ring, for a long time they were
strictly interpreted as legal rights (Benthamic tradition). The discourse peaked on 1946 with
‘Universal Declaration of Human Rights’. At present, rights of groups and cultural diversity
have been included in the discourse.

Some of the basic features of HR are-

They are human and social attributes essential for the adequate development of human
personality and for happiness. They are universal and are 'universally accepted' fundamental
values, principles and rules regulating the conduct of states towards their own citizens and
non-citizens. They are based on moral principles and nature of humans. Therefore, are
inalienable. They are indivisible, interdependent and non-derogable and transcendental.

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The tradition of protecting the rights of human beings was first held in the USA Bill of
Rights then in ‘The Declaration of Rights of Man and of the Citizen’. They became the
 backbone for the 1948 text of Universal Declaration of Human Rights. A charter drawn after
the horrors of World War II to affirm struggles against fascism and Nazism. The drafting of
the charter was entrusted to committee by Eleanor Roosevelt. This was adopted by the Third
General Assembly of the United Nations on 10th December, 1948 (Paris). None of the 56
members of the UN voted against the text. South Africa, Saudi Arabia and Soviet Union
abstained. The incorporation of Human Rights in the UN agenda provides new rational for
human rights as well as concrete foundation for international action in this area.

The term 'human rights' was not part of common uses and till its incorporation in the UDHR,
which drew ethical thinking from all major religions and no particular philosophical
grounding. This imparted universal appeal to it. The declaration has inspired and decided in
many countries National legislature and translated into nearly 300 National and local
language. The UDHR comprises 30 articles that contain a comprehensive list of key civil,
political, economic, social and cultural rights that are 'universal' in nature and aims to ensure
dignified life to each and every individual:

a) Article 1 affirms the fundamental equality of human beings endowed with dignity and rights.

b) Article 2 is the principle of non-discrimination.

c) Article 3-5 conferred on the individual which is referred as the personal integrity rights.

● Article 3, affirms the right to life liberty and security of person.

● Article 4, prohibit slavery and slave trade.
● Article 5, prohibits torture cruel inhuman treatment.

d) Article 6-7 are about equality before law.

e) Article 9, freedom from arbitrary arrest.

f) Article 10, The right to an effective remedy for human rights violation.

g) Article 13, freedom of movement

h) Article 17, freedom to own property. This is considered a weak right.

i) Article 18, freedom to practice any religion

j) Article 21, the right to take part in government

k) Article 22-26:

● Article 22, see that everyone has the right to economic social and cultural well-being.
● Article 23 include right to work, the right to form and join trade unions.
● Article 25 States the right to an adequate standard of living for individual and their
family.

l) Article 27 the right to participate freely in cultural life of the community. Minority rights to not
find a mention in this. It was only in 1992 that the UN declaration of support for this issue
moved centerstage with the Minority Rights Declaration (MRD).

m) Article 28 indicates the in the visibility of human rights that links all the enumerated rights
and freedoms by entitling everyone to a social and international order in which the rights and
freedoms set forth in this declaration can be fully realized.

n) Article 29 and 30, discuss about the duty of individual towards community that can help in
development of their personality it also lays down duties of individual group or state not to be
party to destruction of the rights laid down in the charter.

Features of UDHR:

1. The text is universal: this feature tries to do away with any discrimination of a qualification
required for dignified life.

2. The text is independent and interrelated of different categories of human rights. For instance, it
is impossible for a society to fulfill its commitment to right to education (article 26) without
taking seriously its commitment to the right to seek receive an important information (Article
19). Or it is difficult to apply right to form and to join trade unions (Art 23) without the right to
peaceful assembly and association (Art 20)

3. The text is non-binding: its inherent flexibility has offered temple room for new strategies to
promote human rights. Despite its non-binding status, its provisions have achieved judicial status
akin to that of norms of customary international laws.
4. The text has moral authority: UDHR is responsible for making the notion of Human Rights
nearly universally accepted and regulating the conduct of States.

In 1966, two important international treaties, the International Covenant on Civil and Political
Rights and the International Covenant on Social and Economic Rights were opened for signature.

ICCPR: The came into force in 1976, in a charter called International Bill of Rights. The ICCPR
contains Civil and Political Rights of the individual. At the moment, there are 154 state parties to
the covenant. Additionally, there are two optional protocols that the states are at liberty to sign,
first, being the protocol to examine individual complaints with respect to human rights violation
by States. Second, abolition of death penalty by state that sign it.

The covenant also designates several rights not listed in the Universal Declaration of Human
Rights. It calls for the establishment of Human Rights committee comprising of experts to study
state parties on measures adopted to give effect to the rights recognized. This imposes immediate
obligations on this state party to respect protect and ensure rights to all persons without
discrimination. Steps including legislative, to give effect to the right and provide all persons with
effective remedies are to be undertaken.

Within, ICCPR-

● Article 1 deals with right of self-discrimination.

● Article 2 places an obligation on the states to take all the necessary steps for the
implementation of rights of the individual as recognized in the covenant being personal,
integrity rights, legal rights, individual freedom, etc.

In the event of an emergency certain rights are likely to be curtailed by State but some are non-
derogable like Right to life (Article 6), Right to be Recognized as a person before the law
(Article 16), etc.

Generally, this covenant undertakes protection of individual from the abuse of power by the
state however there are specific limitations on some rights which can be restricted in accordance
with the law if necessary. In a democratic society, in the interest of national security or public
safety public-order protection of public health or morals, for protection of the rights and
freedoms of others, some rights can be curtailed. For instance, Freedom of movement (Article
12), Freedom of Association (Article 22), etc.

ICSECR: Is sometimes called "Promotional convention", which was not intended for immediate
implementation, the state parties have agreed only to take steps towards achieving progressively
the full realisation of the rights.

These include the right to fair and equal wages, equal pay for equal work by men and women,
right to form trade unions, right to strike, protection of children from social and economic
exploitation and compulsory primary education, right to have adequate standard of living and the
right to culture.

There is an obligation for implementation of these rights on the States whenever there is
availability of resources. ICSECR obliges the state parties to report to the UN Economic and
Social Council on steps to have adopted and on the progress they have made. In 1986, Limburg
Principles became obligations for States to implement these rights. In 1997, Maastricht
developed guidelines on violation of these specific rights.

Other covenants-

They provide the basics for single issue Human Rights such as women's, minority or children's
right or issues like racial discrimination and torture.

1. Convention on The Elimination of All Forms of Discrimination Against Women (CEDAW),

which came in force in 1981.

2. Convention of the Rights of the Children (CRC), 1990

3. Convention Against Torture and Other Cruel Inhuman or Degrading Treatment or Punishment,

4.. International Convention on the Elimination of all Forms of Racial Discrimination, 1965.

5. The Committee on Rights of Persons with Disabilities.

6. International Convention on the Protection of Rights of All Migrant Workers and Members of
Their Families, 1990

The OHCHR has a non-exhaustive list of other Universal instruments relating to human rights.
(They have no binding legal effect)
The generations of human rights-

The evolution of rights has witnessed that a) all rights have not been recognized at a particular
time in the history b) all of them have not got equal importance, in terms of recognition and
protection, at one point in history. The political science and legal scholars have tried to classify
human rights into three broad categories. Vasak, 1977 gave three-fold division of the
watchwords: Liberty, equality and fraternity. This is done with the consideration of evolution
and recognition; both in philosophical and operational level.

First Generation HR aka Blue rights:

This mainly include civil and political rights. In this, people's protection is seen at the
cornerstone of these rights. The emerged to protect the individual from excesses of state and
were promoted through Bill of Rights of USA constitution, Declaration of the Rights of Man
and Citizen in France, etc. they impose a ‘negative right’ on the state as they have to refrain
from intervening in decision making. These are essential for democracy.

They include- the right to life, liberty, equality before law, freedom of speech, freedom of
religion, voting rights, rights to fair trade, etc. At some point in history, they were considered
as more fundamental and basic human Rights which are non-negotiable in nature.

Second Generation HR aka Red rights

This include economic, social and cultural rights, which got recognition and protection by
the state only in the 20th century (esp. post WW2). The focus on equality in social conditions
and treatment. These ‘positive rights’ impose upon the government the duty to respect,
promote and fulfill them depending upon 'availability of resources’. They demand proactive
actions of the state. While first generation rights are negative in nature as they impose some
restrictions and obligations on the state, these rights come after the assurance of the blue
rights. These include rights to food, shelter, healthcare, education, social security, right to
work and livelihood, right to be employed in just in favorable conditions, etc.

Third generation HR aka green rights

These include certain rights which was not mentioned before, in reference to group rights or
collective rights. Vasak, 1977 called these 'right to solidarity' and according to him, they are:
 right to development, right to healthy and ecologically balanced environment, the right to
peace and the right to ownership of the common heritage of mankind. They also include,
large spectrum of rights like: Right to intergenerational equity and sustainability, right to
self-determination, right to one's own natural resources, try to one's own cultural heritage,
LGBTQ+ rights, consumer rights, etc.

They emerged under two circumstances some countries have also developed legal
mechanism for safeguarding these rights:

A. Political independence from erstwhile colonial societies.

B. Threats to humankind that have recently come into surface due to social economic and
environmental problems.

Hierarchy of rights-

The debate of hierarchy has been strongly prevalent for some time. Historically, the erstwhile
USSR felt that the UN should mainly limit itself to the aspect of proclamation of Human Rights
its enforcement should essentially be a matter of domestic action. the political and ideological
mindset of the cold war had an impact on the conceptualization of human rights as there where
emphasis on two sets of rights:

● Civil and political rights

● Social and economic rights.

The former was considered hierarchically superior and justiciable, in comparison to social and
economic rights that were seen as a guide to policymaking. Presently, the remains of these
ideologies can be seen in the two key covenants: ICCPR and ICSECR. The obligation for
implementation of the 'promotional convention' is placed on the states appear to be the basic
difference between the two sets of rights. While States needs to take all the necessary steps to
ensure the right outline in ICCPR, which include the first-generation rights. In the case of
ICSECR, the states are to progressively ensure their implementation based on availability of
resources.
An exclusive legal focus on the interpretation of rights meant Civil and political rights were
considered to be a superior set of rights in social and economic rights. Infact, strictly legal
interpretations so Human Rights just as just Civil and political rights.

This selective attention of UN to some set of rights, suffers from lack of clarity of norms among
states and the complexity of information exchange required to implement these the UN has also
been late in recognizing the significance of minority rights the acceptance of third generation of
rights termed as solitary rights has expanded the focus to a large number of poor non-Western
countries.

There is difficulty in determining who the correspondents of these rights are and what the
corresponding duties are. There is also the case of Western liberal bias which emphasizes on
individual rather than collective and on rights rather than duties. Therefore, there is a
compromise on the Asian values and the universality of human rights. It must not be forgotten
that rights spelt out in UDHR are indivisible and interdependent, one set of rights cannot be
compromised.

Universalism versus relativism-

The universality of Human Rights versus cultural relativism is the most controversial debate in
recent times. Contextually, post WW2 the concept of human right became to be known for its
'universality'. It is argued that unlike the past, certain rights are universally present everywhere
on the earth for every human being. This is irrespective of the social, cultural and political-
setting. Those who support and believe that human rights are universal in nature are known as
'Universalists'. John Locke, Immanuel Kant, John Rawls, Jeremy Bentham, Thomas Pogge, etc
were some prominent universalists.

They view rights as moral and people do not require any qualification to enjoy them. Adamantia
Pollis and Peter Schwab argue that all societies, culturally and historically manifest conceptions
of human rights. Yogindra Khushalani says that human rights can be traced to the origin of
human race itself.

This view faces its greatest critic from the 'Cultural Relativists'. While the universalists
emphasized that universality of human rights and their omnipresent applicability. The latest
stress on diversity and differences, that regulate changes.
Relativists- Alasdair McIntyre, Renteln, Donoh argue that human rights are based on morality
which against is justified in a specific environment of society. Such morality differs from society
to society, relative to a culture. They criticize Human Rights doctrine for failing to respect
different cultural religious and philosophical traditions and therefore ultimately failing to respect
people's identities.

Human Rights scholars like Hoffman and Graham, support cultural specificity and say that the
present concept of Human Rights is a product of Western society and therefore does not include
the values of non-western societies. They also spread Western imperialism. As a result, it is
difficult to implement these rights in many cultures and value systems. There is strong resistance
from many conservative and traditional societies. refutes universalist claims.

The alternate conception of Human Rights such as Islamic, African and Asian values have felt
neglect. For example, Regional political leaders the beginning to ask for redrafting of the
declaration because it was viewed to be clearly incompatible with Asian values and traditions.

Freeman noted that these were being translated by these cultures as soft 'ideological' power
assertion. The best way according to freeman was approaching Human Rights from different
perspectives to enrich our understanding of human rights. The approach of the UN, after the
Vienna Conference, 1993 has reaffirmed that at least certain Human Rights are universally
accepted. The debate is still an open one and the claim of universality is still being contested
from many quarters. However, some scholars argue that universality and cultural specificity are
fully compatible notions they can coexist and interact.

For the concept of Human Rights, skepticism exists too-

1. Utilitarian critique:

Alisdair McIntyre feel that the concept of Human Rights is as fictitious as that of ‘utility’. The
objective of politics and morality should be achieving greatest happiness of the greatest numbers,
something that can be measured in a concrete way. The only type of right that utilitarians accept
are legal rights. They feel that in the language of rights, the objective probably not be something
tangible but we can feel in a concrete way.
2. Richard Rorty considers Human Rights as a matter of sentimental imagination rather than
rational calculations. He seconds McIntyre and considers human rights to be a matter of belief
without theoretical foundations. He points out that the slave drivers, rapists, ethical cleansers and
search do not consider the objects of their violence to be humans. Even if one were able to prove
the absolute existence of human right it would make no difference.

3. The UN led Human Rights regime is a declaratory regime. The treaty and charter-based
working of the monitoring bodies has led to the emergence of widely accepted norms in various
fields of operation and considerable promotional activity, but very little international
implementation is observed.

In Conclusion, one of the most important milestones of mankind is the development of the
concept and legal framework of human rights. Irrespective of the metaphysical and
epistemological foundations for the existence of Human Rights, they have become an integral
part of the global politics and the constitutional system of every modern state. UDHR started an
active dialogue on human rights played an important role in making human rights supposedly
universal. However, the efforts to develop an absolute fundamental principle to justify the human
rights for obtaining wider recognition in the last few decades are commendable. In India,
realization of these rights still remains an uphill task. But, under These covenants, serious efforts
in the area of a meaningful democracy and protection of rights especially for the most
disadvantaged and marginalized are being undertaken.

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Bibliography-

1. Priyam. M, Menon. K, Banerjee. M, Human Rights Gender & Environment, Pearson,

2009: Pg- 3-35
2. Tripathi. R, Human Rights: Various Meanings (Chapter 3): Pg- 51-75
3. Agrwal. S, UN Human Rights Declarations and Covenants (Chapter 4): Pg- 73-91