Defining human rights

To say that there is widespread acceptance of the principle of human rights is not to say that there is complete agreement about the nature and scope of such rights—which is to say, their definition. Among the basic questions that have yet to receive conclusive answers are the following: whether human rights are to be viewed as divine, moral, or legal entitlements; whether they are to be validated by intuition, culture, custom, social contract, principles of distributive justice, or as prerequisites for happiness; whether they are to be understood as irrevocable or partially revocable; and whether they are to be broad or limited in number and content.

The relevance of custom and tradition

With the end of the Cold War, however, the debate took on a more North-South character and was supplemented by a cultural-relativist critique that eschews the universality of human rights doctrines, principles, and rules on the grounds that they were Western in origin and therefore of limited relevance in non-Western settings. The viewpoint underlying this assertion—that the scope of human rights in any given society is fundamentally determined by local, national, or regional customs and traditions—may seem problematic, especially when one considers that the idea of human rights and many of its precepts are found in all the great philosophical and religious traditions. Nevertheless, the historical development of human rights demonstrates that it cannot be wholly mistaken. Nor is it surprising that it should emerge soon after the end of the Cold War. First prominently expressed at an Asian meeting preparatory to the second UN World Conference on Human Rights convened in Vienna in June 1993, it reflects the end of a bipolar system of alliances that had discouraged independent foreign policies and minimized cultural and political differences in favour of undivided Cold War loyalties. Against the backdrop of increasing human rights interventionism on the part of the UN and by regional organizations and deputized coalitions of states (as in Bosnia and Herzegovina, Somalia, Liberia, Rwanda, Haiti, and Serbia and Kosovo, for example), the viewpoint serves also as a functional equivalent of the doctrine of respect for national sovereignty and territorial integrity.

As a consequence, there remains sharp disagreement about the legitimate scope of human rights and about the priorities that are claimed among them.

Inherent risks in the debate

On final analysis, however, this legitimacy-priority debate can be dangerously misleading. Although useful for pointing out how notions of liberty and individualism have been used to rationalize the abuses of capitalism and Western expansionism and how notions of equality, collectivism, and culture have been alibis for authoritarian governance, in the end it risks obscuring at least three essential truths that must be taken into account if the contemporary worldwide human rights movement is to be objectively understood.

First, one-sided characterizations of legitimacy and priority are very likely, at least over the long term, to undermine the political credibility of their proponents and the defensibility of the rights they regard as preeminently important. In an increasingly interdependent global community, any human rights orientation that does not support the widest possible shaping and sharing of values or capabilities among all human beings is likely to provoke widespread skepticism. The last half of the 20th century is replete with examples.

Second, such characterizations do not accurately reflect reality. In the real world, virtually all societies, whether individualistic or collectivist in essential character, consent to, and even promote, a mixture of all basic values or capabilities. A more recent demonstration is found in the Declaration and Programme of Action of the Vienna conference mentioned above, adopted by representatives of 171 states. It proclaims that, “while the significance of national and regional particularities and various historical, cultural and religious backgrounds must be borne in mind, it is the duty of States, regardless of their political, economic and cultural systems, to promote and protect all human rights and fundamental freedoms.”

Finally, none of the international human rights instruments currently in force or proposed says anything about the legitimacy or priority of the rights it addresses, save possibly in the case of rights that by international covenant are stipulated to be “nonderogable” and therefore, arguably, more fundamental than others (e.g., freedom from arbitrary or unlawful deprivation of life, freedom from torture and from inhuman or degrading treatment and punishment, freedom from slavery, and freedom from imprisonment for debt). To be sure, some disagreements about legitimacy and priority can derive from differences of definition (e.g., what is “torture” or “inhuman treatment” to one may not be so to another, as in the case of punishment by caning or by death). Similarly, disagreements also can arise when treating the problem of implementation. For instance, some insist first on certain civil and political guarantees, whereas others defer initially to conditions of material well-being. Such disagreements, however, reflect differences in political agendas and have little if any conceptual utility. As confirmed by numerous resolutions of the UN General Assembly and reaffirmed in the Vienna Declaration and Programme of Action, there is a growing consensus that all human rights form an indivisible whole and that the protection of human rights is not and should not be a matter of purely national jurisdiction. The extent to which the international community actually protects the human rights it prescribes, on the other hand, is a different matter.

Historical references

Throughout the 19th and early 20th centuries, numerous military operations and diplomatic representations, not all of them with the purest of motives but performed nonetheless in the name of “humanitarian intervention” (a customary international law doctrine), undertook to protect oppressed and persecuted minorities in the Ottoman Empire, Syria, Crete, various Balkan countries, Romania, and Russia. Paralleling these actions, first at the Congress of Vienna (1814–15) and later between the two World Wars, a series of treaties and international declarations sought the protection of certain racial, religious, and linguistic minorities in central and eastern Europe and the Middle East. During the same period, the movement to combat and suppress slavery and the slave trade found expression in treaties sooner or later involving the major commercial powers, beginning with the Treaty of Paris (1814) and culminating in the International Slavery Convention (1926).

In addition, beginning in the late 19th century and continuing well beyond World War II, the community of nations, inspired largely by persons associated with what is now the International Committee of the Red Cross, concluded a series of multilateral declarations and agreements designed to temper the conduct of hostilities, protect the victims of war, and otherwise elaborate the humanitarian law of war (now commonly referred to as International Humanitarian Law). At about the same time, first with two multilateral labour conventions concluded in 1906 and subsequently at the initiative of the International Labour Organisation (ILO; established in 1919), a reformist-minded international community embarked upon a variety of collaborative measures directed at the promotion of human rights. These measures addressed not only concerns traditionally associated with labour law and labour relations (e.g., industrial health and safety, hours of work, and annual paid holidays), but also—mainly after World War II—such core human rights concerns as forced labor, discrimination in employment and occupation, freedom of association for collective bargaining, and equal pay for equal work.

As important as these efforts were, however, it was not until after the war—and the Nazi atrocities accompanying it—that active concern for human rights truly came of age internationally. In the proceedings of the International Military Tribunal at Nürnberg in 1945–46 (the Nürnberg trials), German high officials were tried not only for “crimes against peace” and “war crimes” but also for “crimes against humanity” committed against civilian populations, even if the crimes were in accordance with the laws of the country in which they were perpetrated. Although the tribunal, whose establishment and rulings subsequently were endorsed by the UN General Assembly, applied a cautious approach to allegations of crimes against humanity, it nonetheless made the treatment by a state of its own citizens the subject of international criminal process. The ad hoc international criminal tribunals established in 1993–94 for the prosecution of serious violations of International Humanitarian Law in the former Yugoslavia and in Rwanda were its first heirs on the international plane. Both courts were empowered to impose sentences of life imprisonment (though not the death penalty), and both focused their efforts, with some success, on political leaders who had authorized human rights abuses. Most conspicuous was the arrest and detention in June 2001 of former Yugoslav president Slobodan Milošević by the International Criminal Tribunal for Yugoslavia, representing the first time a former head of state has been placed in the physical custody of an international judicial authority.

Also heir to the Nürnberg tribunal is the International Criminal Court, authorized by the adoption by 160 countries of the Rome Statute of the International Criminal Court in July 1998. The statute creates a permanent international criminal court whose jurisdiction includes crimes against humanity, crimes of genocide, war crimes, and crimes of “aggression” (pending the adoption of an acceptable definition of that term). However, the creation of the court, which depends on the ratification of the statute by at least 60 signatory states, was resisted by some countries, notably the United States, on the ground that it would unduly infringe upon their national sovereignty. The long-term future of the court is therefore uncertain.

*Excerpts from Burns H. Weston’s article (Bessie Dutton Murray Distinguished Professor of Law; Associate Dean for International and Comparative Legal Studies, University of Iowa, Iowa City. Coauthor of Human Rights in the World Community and others).