Guide The Challenge of Human Rights: Origin, Development and Significance

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The social and political concerns of Africans are shaped mainly by the legacy of colonialism and postcolonial instability together with the severe socioeconomic conditions the continent faces: staggering international debt, the highest number of refugees in the world, widespread starvation, and severe resource depletion.

Despite this situation, the local African debate on human rights today is not as active as either the Asian or Middle Eastern debates. This is likely attributable to the fact that there are relatively few locally based human rights NGOs in Africa. With the exception of a very small number of activist organizations, most African NGOs are either church-based or law-oriented, such as legal aid groups or bar associations.

Foreign scholars of Africa and international human rights groups, therefore, generate much of the human rights activity and debate that takes place in Africa today. This critique has fueled the perception among Africans of the human rights regime as not just Western-inspired, but as something foreign and even imperialist. It is this failing that has brought the human rights movement to the point of near irrelevance, according to a number of African critiques.

To the extent that there remains a local debate about the possibilities of human rights, its characteristics are remarkably similar to those of the Asian values debate in several respects. Cultural nationalists arguing against the applicability of international human rights for Africa claim that the notion of the individual, upon which human rights rest, does not exist in Africa.

Here again, primacy is placed on the communal nature of rights and social harmony, with an emphasis on duties and obligations over rights. A third prevalent argument made by some African scholars is that human rights in the West developed over a long period of struggle for democracy and that Africa has yet to go through these stages.

Also in Africa, as in other Southern Hemisphere contexts, the claim that economic and social rights should take priority over civil and political rights is prevalent. Yet, while many African activist-intellectuals hold the position that the two sets of rights are equally important, they tend not to dispute the claim as forcefully as their counterparts in other regions do. This attitude reflects the long-standing Marxist approach that still has many adherents in Africa today.

The split between the cultural nationalist perspective and the intellectual perspective of human rights is also found in the United States. The American rights debate centers around four main issues: what priority to accord economic, social, and cultural rights; the applicability of international human rights law to the United States; when, if ever, to use capital punishment; and most recently, whether there is justification for curtailing civil liberties in the interests of national security.

In one of his many recent writings on the human rights movement, Michael Ignatieff reminds his readers that the American vernacular of justice—civil liberties, civil rights, labor rights—is not the international language of human rights.

And when human rights advocates in the West rebuffed genuine efforts to promote a more expansive notion of rights, they only fueled this sentiment. Such was the response southern NGOs in Asia and elsewhere faced in the early s when in the wake of the end of the Cold War they sought to fight the historical tendency—particularly strong in the United States—to delink civil and political from economic, social, and cultural rights. At that time, then—executive director of Human Rights Watch Aryeh Neier reportedly pointed out that human rights activists in a number of Third World countries, especially Asia, have long held the view that both kinds of concerns are rights.

Their argument has not proved persuasive in the West, however, and none of the leading international nongovernmental groups concerned with human rights has become an advocate of economic and social rights. Much has changed in the last decade, however. Americans are accustomed to thinking of human rights as a foreign policy issue, not as a matter of domestic concern. A minority group of left-leaning activists and intellectuals have long been pushing for the recognition of a broad range of rights for Americans, not only civil and political but also, increasingly, economic and social rights.

Yet as in other domains of international affairs, American cultural nationalists resist the notion that international human rights rules should apply to the United States. The latter view appears to have won out in Washington, where the Senate has ratified few international laws and, most notoriously, has not ratified the Convention on the Rights of the Child—the most widely and rapidly ratified human rights treaty in history, with participating nations—making the United States the only country not to do so.

One treaty upon which there has been recent action in the U. Another area of significant controversy is the use of the death penalty in the United States. Protests against the death penalty have been taking place since the U. Supreme Court reinstated capital punishment in , after overturning the death penalty in In , the Council of Europe adopted Protocol 6, which outlawed the death penalty during peacetime; in ratification of Protocol 6 was made a precondition for EU membership. In recent years activists have used the tactic of shaming the United States by drawing attention to the company it keeps in its liberal use of the death penalty.

The American perspective on human rights priorities is also becoming remarkably similar to that of nations the United States and the international human rights movement have long targeted in the arena of curtailing civil rights for the sake of national security. Public criticism of the Bush administration and its measures to curtail civil liberties immediately following the World Trade Center attacks was limited to groups such as the American Civil Liberties Union, Human Rights Watch, Amnesty International, and other, smaller civil liberties organizations.

In fact, the public tolerance for detention of terrorism suspects and open discussion of the merits of torture during interrogation in left-leaning publications, such as The Atlantic Monthly, shocked many American rights advocates. Pundits at all points on the political spectrum argue that the U. The justification for these measures resonates with arguments once heard only in places such as China and Singapore, which have long used public security as an excuse to limit individual rights.

In this brief overview of regional perspectives of human rights in four regions I have tried to show that conflicts over human rights are taking place across the board, not along civilizational lines and not primarily between North and South as so often assumed. The challenges to human rights, including the suspension of civil liberties, resisting economic and social rights, and the denial of rights to certain groups, are taking place in our own backyards. Several lessons can be drawn. Those views range from the assertion that local values are compatible with human rights principles; to the claim that human rights values are a product of Western culture—or in the case of American critics of CEDAW, liberal international forces—and therefore alien to the local culture; to in-between views that local values are not so much inimical to international human rights, but that in the application of rights they receive different priority.

To do so is to undermine the genuine debates on human rights happening within these cultures, and worse, to be complicit with states in silencing these voices. Second, at the same time that we are seeing convergence of perspectives, different societies continue to have different human rights priorities that stem from their distinct histories and experiences. It is a mistake, however, to interpret the difference of priorities as a disagreement over norms. Investigations of rights discourses in different regions rarely turn up a conflict over principles.

The death penalty and abortion—areas in which U. Netherlands International Law Review. The right to development RTD is contested in international law, politics and practice. This remains the case, despite the year existence of the United Nations Declaration on the Right to Development UNDRTD , the many substantive leads that current international law provides, and the renewed inspiration that can be drawn from Agenda and its sustainable development goals.

Account Options

This article explores whether there is a possible new momentum for the RTD in international law. Deep substantive and political divisions about the exact content and implications of the RTD prevail between—and within—the North and the South. Up to now these divisions have stood in the way of achieving greater normative clarity, follow-up and implementation action.

This state of affairs has directed us to adopt a pragmatic approach, by which we consider the scope for revitalizing the RTD through existing provisions of international law, rather than by creating additional normative frameworks. Then, we pursue the question of how existing provisions of international law could be mobilized more explicitly for the sake of revitalizing the RTD and more in particular for its actual realization in the future.


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Three concrete means of implementation provide at least some prospect for positive change: international cooperation for development, accountability and monitoring mechanisms, and regional and inter-regional instruments and procedures. This Declaration is revered as the first international instrument to express the individual as well as the collective right to development at a global level.

The importance of the Declaration also currently still lies in the fact that it provides one of the few structured approaches to addressing development issues in a rights-based manner.

Thus, while being a soft law instrument as will be addressed below , the UNDRTD takes State contributions to development policies and development work at large out of the realm of voluntariness and charity and into the sphere of rights and required international cooperation, or the duty to cooperate. Furthermore, according to the Declaration, the Right to Development RTD focuses not only on equity and the indivisibility of human rights, but also on the importance of inclusive participation in development both as a means and as a goal.

This is very much in line with what current conceptualizations of development, such as the sustainable development goals SDGs , still emphasize today. Despite the significance of its content and approach, in practice the UNDRTD has not managed to inspire a great deal of concrete implementation efforts.

In fact, due to the great substantive and political divisions prevailing between—and within—the North and the South about the exact substance and implications of the RTD, relatively little explicit follow-up has occurred. The 30th anniversary of the UNDRTD thus coincides with the continued acuteness of undertaking efforts to bring about, and further stimulate, development efforts, and with the substantive resonance between the UNDRTD and contemporary articulations of development concerns and agendas.

This coincidence provides ample reasons for exploring whether there is cause and space to revitalize the RTD in international law and, if so, how this could take shape. Given the political controversies over the subject, in this article we consider the scope for revitalizing the RTD through existing international law instruments, rather than by creating additional normative frameworks.

In addition, we pursue the question of how existing provisions of international law could be mobilized more explicitly for the sake of strengthening the position of the RTD in international law, and more in particular its implementation and actual realization in the future. This article adopts an analytical approach, and examines certain key concepts of international law. For example, we analyse how the RTD could be revitalized by focusing more on the concept of international cooperation in international law, and especially on the obligations related to this concept.

We also explore how the United Nations Agenda for Sustainable Development, including the SDGs, could provide major momentum for stepping up activities that are essential for working towards realizing the RTD. We are of the opinion that, in order to help the process of paper commitments towards the RTD being turned into effective action on the ground, accountability and monitoring procedures are crucial. In that regard, we examine the potential of procedures in international human rights law, in addition to the scope for contributions from regional and inter-regional understandings of the RTD—especially in the African Union AU system and in the relations between the European Union EU and the African, Caribbean and Pacific Group of States ACP.

All of these explorations will reveal some new space for the RTD in international law and will raise some forward-looking thoughts for revitalizing this right. After all, the convergence of human rights and development had only started to emerge following the political wind of decolonization.

The Relation between Democracy and Human Rights

However, the RTD soon became acknowledged as an individual human right as well. While the members of the UN have agreed to implement the Declaration, the exact nature of the obligations involved and of the modes of implementation have been the subject of intense debate for at least the last thirty years. The implementation and operationalization of the RTD have been hindered a great deal by political controversy and political considerations. Thus, the RTD has largely remained elusive.

However, as will gradually be elaborated in this article, the UNDRTD is not the only legal instrument that is relevant for defining the substance and consequences of the RTD. Rather, despite the sketched controversies, various core elements of this right also appear in international legal instruments other than the UNDRTD and these could be drawn upon to a greater extent. The international community has an obligation to rectify these unfavourable trends and to create conditions under which all nations can enjoy economic and social well-being, and have the means to develop their respective resources to enable their peoples to lead a life free from want and fear.

In the meantime, the RTD had also gained ground in some regional and inter-regional international legal instruments. As is discussed further in Sect. To date, that Charter remains the only hard law document bestowing an individual and collective RTD with binding and enforceable obligations imposed on States. The African Commission has dealt with at least seven complaint cases that are relevant to this provision.

In response to a complaint that became known as the Endorois case, the African Commission found in November that the government of Kenya had violated Article This case will be further explained in Sect. Another example, from the inter-regional level, is that of the treaties that through the years have formed the basis for development cooperation relations between the ACP Group nowadays consisting of 79 States in Africa, the Caribbean and the Pacific , 20 and the EU.

Another illustration is the contractual approach, by which both the ACP and the EU States formally committed themselves, in binding legal instruments, to the principles, objectives, procedures and institutions for their development cooperation relations, and by which the EU bound itself to making available a specified set of resources in support of these relations. At the global level, developments continued as well. In turn the fulfilment of the SDGs would be helpful for the realization of the right to development.

This should be supplemented by other instruments and approaches that are needed for a comprehensive understanding of the dynamics of development and thus of the right to development.


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  7. This outlook on the continued relevance of the RTD is shared by others. While the SDGs show more reflections of these than the MDGs did, a call in support of human rights-based approaches to development is certainly still important as the impressive progressive evolution of international human rights law and the ratification records of international human rights law instruments that the world has witnessed have not yet generated sufficient progress on the ground.

    The above has traced the evolution and the continued relevance of the concept of the RTD and has pointed at the usefulness of involving the various hard and soft law international instruments that are currently available in addition to the UNDRTD. Especially selected global international human rights instruments, regional and inter-regional instruments, and the SDGs have potentially strong contributions to make, as will be further explored in Sect.

    In this light, it is now important to review the content of the UNDRTD, in particular as regards the nature and substance of the RTD and in terms of the implementation obligations specified. The next two sub-sections of this article present the findings of a close analysis of the full text of the UN Declaration.

    They broadly portray all the UNDRTD provisions that are relevant for understanding the nature, content and the implementation framework of the RTD, as originally envisaged. This amounts to an analysis of nearly all of the text of the Declaration. Overall, the Declaration clearly has an anthropocentric outlook. According to the latter, both every human person and all peoples are the holders of the RTD. The duty bearers are a diffuse set of actors. All in all, the substantive picture of the nature and content of the RTD that emerges from the UN Declaration is still rather abstract and does not necessarily translate easily into concrete implementation obligations.

    While not all details concerning the individual and collective dimensions of the RTD may be entirely clear, it is nevertheless a fact that the UNDRTD posits development unequivocally as a human right. This makes it pertinent to now explore the vision of the UNDRTD on the possible implications of this right in terms of concrete implementation obligations. This list embodies a combination of national and international implementation obligations. Obviously, the notion of solidarity, translating into a duty to cooperate and to actively engage in international cooperation and assistance for development, forms another core implementation obligation concerning the RTD.

    As briefly stated already in the introduction to this article, the duty to formulate appropriate international development policies and to provide effective international cooperation are among the most controversial elements of the UNDRTD. From other perspectives this is less the case. A significant number of scholars have attempted to either justify or discount the legal basis for enforceable external obligations on the part of rich countries regarding international cooperation between such rich countries and poorer countries in the pursuit of the realization of the RTD.

    Sustained action is required to promote more rapid development of developing countries. As a complement to the efforts of developing countries, effective international co-operation is essential in providing these countries with appropriate means and facilities to foster their comprehensive development. Article 7 of the UN Declaration adds another realm by raising the importance of action for international peace and security and for achieving disarmament. It is no surprise that on these structural elements of the UNDRTD, which so directly raise current economic structures and interests, progress is most difficult to find of all.

    Human rights and development

    We live in challenging times. Across the globe, millions are suffering the merciless, often devastating, effects of the many global crises of our age. The global financial and economic crisis, the food crisis, the energy crisis and the climate crisis have converged in a multi-front assault on human dignity. And our institutions of governance, at both the global and national levels, have been at best negligent, and at times complicit, in this onslaught. A debate has been raging in the halls of the United Nations and beyond.

    On one side, proponents of the right to development assert its relevance or even primacy and, on the other, sceptics and rejectionists relegate this right to secondary importance, or even deny its very existence. Unfortunately, while generating plenty of academic interest and stimulating political theatre, that debate has done little to free the right to development from the conceptual mud and political quicksand in which it has been mired all these years. In other words, an important substantive vision has been developed in the form of the RTD, but concrete follow-up action is still wanting.

    In light of the fierce political controversy over certain key aspects of the RTD, as outlined above, and the urgent need to make headway, we advocate a pragmatic approach for revitalizing its implementation. Rather than seeking recourse to the creation of new legal instruments, such as a treaty or framework convention on the RTD, in our view the most promising—though difficult—way forward is through mobilizing existing provisions of international law.

    This entails drawing firmer attention to relevant provisions in already existing instruments, re interpreting such instruments where appropriate and feasible, finding new momentum for example in the SDGs, and creating at least rudimentary accountability through conducting international monitoring processes or using regional and inter-regional mechanisms where available.

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    Some aspects of these suggestions will be examined below. In , an estimated 5. Millions more children are still denied access to education simply because their parents are poor or from a stigmatized group, because they were born female, or because they are growing up in countries affected by conflict or chronic crises.

    Clearly, the MDGs have played a positive role in the realization of the above-mentioned successes in combating poverty and under-five child mortality. They certainly have managed to bring about renewed momentum for development goals and targets, even though they grossly restricted the agenda to eight crucial, but not all-encompassing Goals. In addition to the existing hard law provisions in the UN Convention on the Rights of the Child, no less than four out of the eight soft law MDGs specifically addressed issues concerning poverty or child mortality.

    This may be a basis for explaining the relatively positive changes for children since the year This sparks hope in terms of the to be expected impact of the—more comprehensive, and more rights-oriented—SDGs. If one analyses the existing legal provisions which are relevant to the RTD, including the hard and soft law that were already reviewed in this article, then three common substantive orientations emerge that are crucial for improving the implementation record.

    Firstly, across older and newer instruments, including the SDGs, 73 a strong call for inclusive development appears. This element has evolved most strongly out of the three orientations presented here. It entails, inter alia , that development objectives, targets and interventions should be non-discriminatory. The non-discrimination principle has a strong status both in international and national law.

    It has found its place in international human rights law but also in international trade law. These will often include women, children, persons with disabilities, indigenous people s and rural populations. The non-discrimination principle is a core element of human rights-based approaches to development and, as such, has gained more prominence in development practice than in the past.


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    It is a crucial key to bringing home development for all. Secondly, there is a strong need for comprehensive and coherent approaches that seek to integrate, and possibly balance, the various interests, needs and rights that come together in the concept of sustainable development and the associated implementation agenda. Most students of human rights trace the origins of the concept of human rights to ancient Greece and Rome , where it was closely tied to the doctrines of the Stoics , who held that human conduct should be judged according to, and brought into harmony with, the law of nature.

    According to the Roman jurist Ulpian , for example, natural law was that which nature, not the state, assures to all human beings, Roman citizens or not. It was not until after the Middle Ages , however, that natural law became associated with natural rights. Thomas Aquinas , these doctrines recognized the legitimacy of slavery and serfdom and, in so doing, excluded perhaps the most important ideas of human rights as they are understood today—freedom or liberty and equality.

    The conception of human rights as natural rights as opposed to a classical natural order of obligation was made possible by certain basic societal changes, which took place gradually beginning with the decline of European feudalism from about the 13th century and continuing through the Renaissance to the Peace of Westphalia During this period, resistance to religious intolerance and political and economic bondage; the evident failure of rulers to meet their obligations under natural law; and the unprecedented commitment to individual expression and worldly experience that was characteristic of the Renaissance all combined to shift the conception of natural law from duties to rights.

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