Note of Chapter 1: Human Right from exam perspective. (Cursory Notes).
Chapter 1: Human Right.
A. Philosophy, Politics, and History of Human Rights
Philosophy of Human Rights
The philosophy of human rights focuses on the elements and underlying moral basis of these rights. Human rights encompass essential rights inherently possessed by every individual due to their humanity. These rights are inalienable and fundamental entitlements that exist from birth until death. They are universally recognized and guide the treatment of individuals and groups without distinction of any kind.
Key Philosophers and Their Views
- Andrew Clapham explains what human rights actually are, what they might be, and the direction in which the human rights movement is going.
- Jack Donnelly is centrally concerned with the human aspect of human rights. He defines human rights as a set of claims to which all human beings are entitled simply because they are human.
- Amartya Sen defines human rights as “the freedom that human beings have to pursue their goals and to develop themselves.”
- Upendra Baxi views human rights as the claims which all persons, as members of the human community, have upon all other persons and social institutions, including the state.
Objectives of Human Rights
The objectives of human rights are to ensure equal participation, access, and recognition for all human beings. The vital areas of human rights include the right to freedom, dignity, and equality. The main goal of human rights is to eliminate or reduce discrimination, exclusion, or restriction of any kind.
Characteristics of Human Rights
Human rights have several key characteristics:
- Universality - They apply to all people everywhere.
- Indivisibility - All rights are equally important and cannot be divided.
- Inalienability - Rights cannot be taken away.
- Interdependence - All rights are connected and depend on each other.
Nature of Human Rights
The nature of human rights is inherent, meaning they are intrinsic to every individual. These rights carry:
- Intrinsic value - They are valuable in and of themselves.
- Instrumental value - They serve as tools for achieving other ends.
- Value within a scheme of rights - They fit within a larger system of rights.
- Importance not overshadowed by other considerations - They are essential and cannot be ignored for other reasons.
- Structural support for a system of the good life - They help build a society where people can live well.
Human rights are advocated universally but are implemented domestically.
There are different approaches to understanding human rights:
- Positivist approach - Human rights are enshrined by international, regional, or bilateral agreements between states.
- Naturalistic approach - Human rights are inherent rights of human beings.
- Practical approach - The exercise and enjoyment of human rights depend on the capacity of the claimants.
The nature of human rights focuses on individuals, citizens, and groups or communities. The evolutionary nature of human rights means they are progressive, dynamic, and continuously emerging.
Tools and Strategies for Human Rights Application
Strategic tools focus on the implementation of human rights. These tools are resources and mechanisms used to promote, protect, and ensure the respect of human rights. They involve creating and enforcing norms. These tools are crucial for monitoring abuses and promoting respect for human rights principles and values. The tools and strategies for applying human rights include:
- Advocacy
- Strategic litigation
- Monitoring and reporting
- Capacity building
- Human rights monitoring mechanisms (OHCHR, NHRIs, INGOs, NGOs)
- Media outreach (newspapers, radio, television)
- Community outreach
- International pressure
- National mechanisms for monitoring and follow-up (social media campaigns)
- Publication of IEC (Information, Education, Communication) materials
- Stakeholders’ engagement (policymakers, civil society organizations, government officials)
D. Human Rights and Law
- Human rights extend beyond the realm of law, but incorporating human rights norms into national laws is highly significant.
- Human rights align closely with the democratic principle of the rule of law, which is more conducive and supportive of human rights.
- The success of international human rights principles relies heavily on domestic legal systems and judicial activism. Laws oblige states to apply human rights norms, including moral principles. Recognized principles, such as customary international law, create a foundation that permits the application of universally recognized legal theories and principles relevant to human rights.
- International human rights law can enter domestic jurisdictions through the application of different theories, namely monism and dualism.
Monism and dualism are theories that explain how international law is incorporated into domestic law. Monism suggests that international law is automatically part of domestic law, while dualism requires that international law be translated into domestic law through legislation.
Prepared and edited by Madhu Dahal and Manish Rajak.
