Academic journal article Harvard International Review

Achieving International Justice: Human Rights Promotion and the Law

Academic journal article Harvard International Review

Achieving International Justice: Human Rights Promotion and the Law

Article excerpt

Do universal human rights exist, and if so is it necessary to justify them philosophically?


There are, without a doubt, universal human rights. The 1948 Universal Declaration of Human Rights represents a broad consensus on this. In fact, one of the projects I have recently undertaken is to consider and analyze widely held principles of international human rights law.

To the second part of the question, my answer is partially affirmative. There is no doubt that philosophy and philosophers have contributed deeply to the content and nature of human rights. At the same time, however, my studies of the practice of human rights law indicate that rights involve much more than just theory; they entail a process involving grievances, the articulation of claims based on those grievances, followed by political negotiations, the recognition of rights, and the battle for the implementation of those rights.

There are those who say that economic, social, and cultural rights are not human rights because they are not philosophically grounded. I would reply to them that it is critical to bear in mind that past codification of rights--including the Magna Carta, the English Declaration of Rights, the French and US declarations, and the Universal Declaration of Human Rights--were all results of political processes. In this sense, while philosophers are relevant, they are not decisive.

From what international actors and intellectual circles do the most serious challenges to human rights come?

At a formal level, there is no real challenge to human rights today. What do I mean by that? I am struck that the United Nations Commission on Human Rights, while mired in many problems, has successfully held a one-week high-level summit at the beginning of its session for the last two years. During this conference, high-level personalities from about 80 to 100 countries come to explain their actions with reference to human rights. In this sense, whatever other faults the commission has, it provides a forum for leaders of countries who come to the United Nations to be held accountable in terms of human rights--and I am not aware of anyone challenging this.

The more powerful challenges to human rights come first from global poverty and second from internal conflicts. Currently, I do not think that we are seeing religious or cultural challenges to human rights, but rather challenges that are economically or politically rooted. It is these challenges, in turn, that sometimes produce cultural and religious tensions.

Under what circumstances might a government be justified in violating human rights?

The general answer is that, especially in today's world, we must be very careful when we make for such allowances. As the Acting High Commissioner of Human Rights, I issued a statement asserting that, "ours is a world in which human rights are affected by poverty, conflicts, equality, and gender discrimination, and state violence against its own citizens." Because we are dealing in a world plagued with such problems, I think it is important as a matter of principle to hold fast to the human rights norms when possible. In all other cases, however, we must look to the answers given in international human rights law.

International human rights law says that there are, in fact, a few limited situations in which states may derogate from human rights. Article 4 of the International Covenant of Civil and Political Rights states that human rights norms may be curtailed if the life of a nation is threatened or if there is a public emergency affecting the life of a nation. Moreover, there are grounds of limitation specified for the definitions of the rights themselves. In this regard, therefore, many conditions must be met before a human rights violation is deemed acceptable: there must be an emergency that affects the life of a nation, the existence of the emergency must be officially proclaimed, and the measures taken must be proportional to the emergency. …

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