Ge8074 Unit 2 - Human Rights

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UNIT-II
International
2 Humanitarian Law
Syllabus
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Evolution of the concept of Human Rights Magana carta – Geneva Convention of 1864.
Universal Declaration of Human Rights, 1948. Theories of Human Rights.
Contents
2.1
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Evolution of the Concept of Human Rights Magana Carta
2.2
2.3
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Geneva Convention of 1864
Universal Declaration of Human Rights
2.4 Theories of Human Rights ngi

Two Marks Questions with Answers
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Review Questions
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(2 - 1)
Human Rights 2-2 International Humanitarian Law
2.1 Evolution of the Concept of Human Rights Magana Carta

The Magna Carta, or “Great Charter,” was arguably the most significant early
influence on the extensive historical process that led to the rule of constitutional law
today in the english-speaking world.
In 1215, after King John of England violated a number of ancient laws and customs by
which England had been governed, his subjects forced him to sign the Magna Carta,
which enumerates what later came to be thought of as human rights. Among them was
the right of the church to be free from governmental interference, the rights of all free
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citizens to own and inherit property and to be protected from excessive taxes. It
established the right of widows who owned property to choose not to remarry and
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established principles of due process and equality before the law. It also contained
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provisions forbidding bribery and official misconduct.
Widely viewed as one of the most important legal documents in the development of
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modern democracy, the Magna Carta was a crucial turning point in the struggle to
establish freedom.
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The Magna Carta is often seen as one of the first legal documents protecting human
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rights. But what is its impact on later human rights documents ?
The Magna Carta controlled the power of the King for the first time in English history.
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It began the tradition of respect for the law, limits on government power and a social
contract where the government ruled with the consent of the people.
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The true power of the Magna Carta lies in its impact on later documents and the
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creation of a culture of the rule of law. This poster explores the legacy of the Magna Carta
and its effect on human rights documents, tracing the evolution from the Magna Carta to
the universal declaration of human rights and giving an overview of the relationship
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between the Magna Carta and human rights.
2.1.1 Petition of Right (1628)

The next recorded milestone in the development of human rights was the petition of
right, produced in 1628 by the English Parliament and sent to Charles I as a statement of
civil liberties. Refusal by parliament to finance the king’s unpopular foreign policy had
caused his government to exact forced loans and to quarter troops in subjects’ houses as
an economy measure. Arbitrary arrest and imprisonment for opposing these policies had
produced in parliament a violent hostility to Charles and to George Villiers, the Duke of
Buckingham. The petition of right, initiated by Sir Edward Coke, was based upon earlier
statutes and charters and asserted four principles : (1) No taxes may be levied without
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consent of parliament, (2) No subject may be imprisoned without cause shown

(reaffirmation of the right of habeas corpus), (3) No soldiers may be quartered upon the
citizenry and (4) Martial law may not be used in time of peace.
2.1.2 The Background of Human Rights

In 539 B.C., the armies of Cyrus the Great, the first king of ancient Persia, conquered
the city of Babylon. But it was his next actions that marked a major advance for man. He
freed the slaves, declared that all people had the right to choose their own religion and
established racial equality. These and other decrees were recorded on a baked-clay
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cylinder in the Akkadian language with cuneiform script.
Known today as the Cyrus cylinder, this ancient record has now been recognized as
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the world’s first charter of human rights. It is translated into all six official languages of
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the United Nations and its provisions parallel the first four articles of the universal
declaration of human rights.
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2.1.3 The Spread of Human Rights
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From Babylon, the idea of human rights spread quickly to India, Greece and
eventually Rome. There the concept of “natural law” arose, in observation of the fact that
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people tended to follow certain unwritten laws in the course of life and Roman law was
based on rational ideas derived from the nature of things.
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Documents asserting individual rights, such as the Magna Carta (1215), the Petition of
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Right (1628), the US Constitution (1787), the French declaration of the rights of man and
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of the citizen (1789), and the US bill of rights (1791) are the written precursors to many of
today’s human rights documents.
2.1.4 United States Declaration of Independence (1776)

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On July 4, 1776, the United States congress approved the declaration of Independence.
Its primary author, Thomas Jefferson, wrote the declaration as a formal explanation of
why congress had voted on July 2 to declare independence from Great Britain, more than
a year after the outbreak of the American revolutionary war and as a statement
announcing that the thirteen American colonies were no longer a part of the British
Empire. Congress issued the declaration of independence in several forms. It was initially
published as a printed broadsheet that was widely distributed and read to the public.
Philosophically, the declaration stressed two themes : Individual rights and the right
of revolution. These ideas became widely held by Americans and spread internationally
as well, influencing in particular the French revolution.

2.1.5 The Constitution of the United States of America (1787) and Bill of
Rights (1791)
Written during the summer of 1787 in Philadelphia, the constitution of the United
States of America is the fundamental law of the US federal system of government and the
landmark document of the western world. It is the oldest written national constitution in
use and defines the principal organs of government and their jurisdictions and the basic
rights of citizens.
The first ten amendments to the constitution - the bill of rights - came into effect on
December 15, 1791, limiting the powers of the federal government of the United States
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and protecting the rights of all citizens, residents and visitors in American territory.
The bill of rights protects freedom of speech, freedom of religion, the right to keep and
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bear arms, the freedom of assembly and the freedom to petition. It also prohibits
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unreasonable search and seizure, cruel and unusual punishment and compelled self-
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incrimination. Among the legal protections it affords, the bill of rights prohibits congress
from making any law respecting establishment of religion and prohibits the federal
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government from depriving any person of life, liberty or property without due process of
law. In federal criminal cases it requires indictment by a grand jury for any capital offense
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or infamous crime, guarantees a speedy public trial with an impartial jury in the district
in which the crime occurred, and prohibits double jeopardy.
2.1.6 Declaration of the Rights of Man and of the Citizen (1789) rin
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In 1789 the people of France brought about the abolishment of the absolute monarchy
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and set the stage for the establishment of the first French republic. Just six weeks after the
storming of the Bastille and barely three weeks after the abolition of feudalism, the
declaration of the rights of man and of the citizen (French : La Declaration des Droits de
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l’Homme et du Citoyen) was adopted by the national constituent assembly as the first
step toward writing a constitution for the republic of France.
The declaration proclaims that all citizens are to be guaranteed the rights of “liberty,
property, security and resistance to oppression.” It argues that the need for law derives
from the fact that “...the exercise of the natural rights of each man has only those borders
which assure other members of the society the enjoyment of these same rights.” Thus, the
declaration sees law as an “expression of the general will,“ intended to promote this
equality of rights and to forbid “only actions harmful to the society.”

2.1.7 The First Geneva Convention (1864)

In 1864, sixteen European countries and several American states attended a conference
in Geneva, at the invitation of the Swiss federal council, on the initiative of the Geneva
committee. The diplomatic conference was held for the purpose of adopting a convention
for the treatment of wounded soldiers in combat.
The main principles laid down in the convention and maintained by the later Geneva
conventions provided for the obligation to extend care without discrimination to
wounded and sick military personnel and respect for and marking of medical personnel
transports and equipment with the distinctive sign of the red cross on a white
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background.
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2.2 Geneva Convention of 1864
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The first Geneva convention for the Amelioration of the condition of the wounded in
Armies in the field, held on 22 August 1864, is the first of four treaties of the Geneva
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conventions. It defines "the basis on which rest the rules of international law for the
protection of the victims of armed conflicts."[1] After the first treaty was adopted in 1864,
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it was significantly revised and replaced in 1906, 1929, and finally 1949. It is inextricably
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linked to the international committee of the red cross, which is both the instigator for the
inception and enforcer of the articles in these conventions.
2.2.1 History rin

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The 1864 Geneva convention was instituted at a critical period in European political
and military history. Elsewhere, the American Civil War had been raging since 1861 and .ne
would ultimately claim between 750,000 - 900,000 lives. Between the fall of the first
Napoleon at the Battle of Waterloo in 1815 and the rise of his nephew in the Italian
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campaign of 1859, the powers had maintained peace in western Europe. Yet, with the
1853 - 1856 conflict in the Crimea, war had returned to Europe and while those troubles
were "in a distant and inaccessible region" northern Italy was "so accessible from all parts
of western Europe that it instantly filled with curious observers;" while the bloodshed
was not excessive the sight of it was unfamiliar and shocking. Despite its intent of
ameliorating the ravages of war, the inception of the 1864 Geneva convention
inaugurated "a renewal of military activity on a large scale, to which the people of
Western Europe… had not been accustomed since the first Napoleon had been
eliminated."

The movement for an international set of laws governing the treatment and care for
the wounded and prisoners of war began when relief activist Henry Dunant witnessed
the Battle of Solferino in 1859, fought between French-Piedmontese and Austrian armies
in Northern Italy. The subsequent suffering of 40,000 wounded soldiers left on the field
due to lack of facilities, personnel and truces to give them medical aid moved Dunant into
action. Upon return to Geneva, Dunant published his account Un Souvenir de
Solferino.[4] He urged the calling together of an international conference and soon co-
founded the international committee of the red cross in 1863.
The International Committee of the Red Cross (ICRC), while recognising that it is
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"primarily the duty and responsibility of a nation to safeguard the health and physical
well-being of its own people", knew there would always, especially in times of war, be a
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"need for voluntary agencies to supplement…the official agencies charged with these
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responsibilities in every country." To ensure that its mission was widely accepted, it
required a body of rules to govern its own activities and those of the involved belligerent
parties.
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Only one year later, the Swiss government invited the governments of all European
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countries, as well as the United States, Brazil, and Mexico, to attend an official diplomatic
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conference. Sixteen countries sent a total of twenty-six delegates to Geneva. The meeting
was presided over by general Guillaume Henri Dufour. Signed at the Alhambra room at
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Geneva's Hotel de Ville (city hall) on 22 August 1864, the conference adopted the first
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Geneva convention "for the Amelioration of the condition of the wounded in Armies in
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2.2.2 Representatives of 12 States and Kingdoms Signed the Convention

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Swiss Confederation
Grand Duchy of Baden
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 Kingdom of Belgium
 Kingdom of Denmark
 Kingdom of Spain
 French Empire
 Grand Duchy of Hesse
 Kingdom of Italy
 Kingdom of the Netherlands
 Kingdom of Portugal and the Algarves
 Kingdom of Prussia
 Kingdom of Württemberg Downloaded From: www.EasyEngineering.net

It "derived its obligatory force from the implied consent of the states which accepted
and applied them in the conduct of their military operations." Despite its basic mandates,
listed below, it was successful in effecting significant and rapid reforms. This first effort
provided only for :
 The immunity from capture and destruction of all establishments for the treatment
of wounded and sick soldiers,
 The impartial reception and treatment of all combatants,
 The protection of civilians providing aid to the wounded, and
 The recognition of the red cross symbol as a means of identifying persons and
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equipment covered by the agreement.
Due to significant ambiguities in the articles with certain terms and concepts and even
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more so to the rapidly developing nature of war and military technology, the original
articles had to be revised and expanded, largely at the Second Geneva Conference in 1906
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and Hague conventions of 1899 and 1907 which extended the articles to maritime warfare.
The 1906 version was updated and replaced by the 1929 version when minor
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modifications were made to it. It was again updated and replaced by the 1949 version,
better known as the final act of Geneva conference, 1949. However, as Jean S. Pictet,
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director of the international committee of the red cross, noted in 1951, "the law, however,
always lags behind charity; it is tardy in conforming with life's realities and the needs of
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humankind", as such it is the duty of the red cross "to assist in the widening the scope of
and expansion of these basic principles of the original Geneva convention. g

law, on the assumption that…law will retain its value", principally through the revision
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2.3 Universal Declaration of Human Rights
Whereas recognition of the inherent dignity and of the equal and inalienable rights of
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all members of the human family is the foundation of freedom, justice and peace in the
world, whereas disregard and contempt for human rights have resulted in barbarous acts
which have outraged the conscience of mankind and the advent of a world in which
human beings shall enjoy freedom of speech and belief and freedom from fear and want
has been proclaimed as the highest aspiration of the common people, whereas it is
essential, if man is not to be compelled to have recourse, as a last resort, to rebellion
against tyranny and oppression, that human rights should be protected by the rule of law,
whereas it is essential to promote the development of friendly relations between nations,
whereas the peoples of the United Nations have in the charter reaffirmed their faith in
fundamental human rights, in the dignity and worth of the human person and in the

equal rights of men and women and have determined to promote social progress and
better standards of life in larger freedom, whereas member states have pledged
themselves to achieve, in cooperation with the United Nations, the promotion of
universal respect for and observance of human rights and fundamental freedoms,
Whereas a common understanding of these rights and freedoms is of the greatest
importance for the full realization of this pledge, now, therefore, the general assembly,
proclaims this universal declaration of human rights as a common standard of
achievement for all peoples and all nations, to the end that every individual and every
organ of society, keeping this declaration constantly in mind, shall strive by teaching and
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education to promote respect for these rights and freedoms and by progressive measures,
national and international, to secure their universal and effective recognition and
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observance, both among the peoples of member states themselves and among the peoples
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of territories under their jurisdiction.
 Article 1
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All human beings are born free and equal in dignity and rights. They are endowed
with reason and conscience and should act towards one another in a spirit of
brotherhood. ngi
 Article 2
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Everyone is entitled to all the rights and freedoms set forth in this declaration,
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without distinction of any kind, such as race, colour, sex, language, religion,
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political or other opinion, national or social origin, property, birth or other status.
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Furthermore, no distinction shall be made on the basis of the political, jurisdictional
or international status of the country or territory to which a person belongs,
whether it be independent, trust, non-self-governing or under any other limitation
of sovereignty.
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 Article 3
Everyone has the right to life, liberty and the security of person.
 Article 4
No one shall be held in slavery or servitude; slavery and the slave trade shall be
prohibited in all their forms.
 Article 5
No one shall be subjected to torture or to cruel, inhuman or degrading treatment or
punishment.

 Article 6
Everyone has the right to recognition everywhere as a person before the law.
 Article 7
All are equal before the law and are entitled without any discrimination to equal
protection of the law. All are entitled to equal protection against any discrimination
in violation of this declaration and against any incitement to such discrimination.
 Article 8
Everyone has the right to an effective remedy by the competent national tribunals
for acts violating the fundamental rights granted him by the constitution or by law.
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 Article 9
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No one shall be subjected to arbitrary arrest, detention or exile.
 Article 10
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Everyone is entitled in full equality to a fair and public hearing by an independent
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and impartial tribunal, in the determination of his rights and obligations and of any
criminal charge against him.
 Article 11 ngi
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1. Everyone charged with a penal offence has the right to be presumed innocent
until proved guilty according to law in a public trial at which he has had all the
guarantees necessary for his defence.
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2. No one shall be held guilty of any penal offence on account of any act or
omission which did not constitute a penal offence, under national or international
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law, at the time when it was committed. Nor shall a heavier penalty be imposed
than the one that was applicable at the time the penal offence was committed.
 Article 12
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No one shall be subjected to arbitrary interference with his privacy, family, home or
correspondence, nor to attacks upon his honour and reputation. Everyone has the
right to the protection of the law against such interference or attacks.
 Article 13
1. Everyone has the right to freedom of movement and residence within the borders
of each state
2. Everyone has the right to leave any country, including his own, and to return to
his country.

Human Rights 2 - 10 International Humanitarian Law
 Article 14
1. Everyone has the right to seek and to enjoy in other countries asylum from
persecution.
2. This right may not be invoked in the case of prosecutions genuinely arising from
non-political crimes or from acts contrary to the purposes and principles of the
United Nations.
 Article 15
1. Everyone has the right to a nationality.
2. No one shall be arbitrarily deprived of his nationality nor denied the right to
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 Article 16
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1. Men and women of full age, without any limitation due to race, nationality or
religion, have the right to marry and to found a family. They are entitled to equal
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rights as to marriage, during marriage and at its dissolution.
2. Marriage shall be entered into only with the free and full consent of the intending
spouses.
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3. The family is the natural and fundamental group unit of society and is entitled to
protection by society and the state.
 Article 17
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1. Everyone has the right to own property alone as well as in association with
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2. No one shall be arbitrarily deprived of his property.
 Article 18
Everyone has the right to freedom of thought, conscience and religion; this right
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includes freedom to change his religion or belief and freedom, either alone or in
community with others and in public or private, to manifest his religion or belief in
teaching, practice, worship and observance.
 Article 19
Everyone has the right to freedom of opinion and expression; this right includes
freedom to hold opinions without interference and to seek, receive and impart
information and ideas through any media and regardless of frontiers.
 Article 20
1. Everyone has the right to freedom of peaceful assembly and association.
2. No one may be compelled to belong to an association.

 Article 21
1. Everyone has the right to take part in the government of his country, directly or
through freely chosen representatives.
2. Everyone has the right to equal access to public service in his country.
3. The will of the people shall be the basis of the authority of government; this will
shall be expressed in periodic and genuine elections which shall be by universal
and equal suffrage and shall be held by secret vote or by equivalent free voting
procedures.
 Article 22
wwEveryone, as a member of society, has the right to social security and is entitled to
realization, through national effort and international co-operation and in
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accordance with the organization and resources of each state, of the economic,
social and cultural rights indispensable for his dignity and the free development of
his personality.
 Article 23 syE
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1. Everyone has the right to work, to free choice of employment, to just and
favourable conditions of work and to protection against unemployment.
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2. Everyone, without any discrimination, has the right to equal pay for equal work.
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3. Everyone who works has the right to just and favourable remuneration ensuring
for himself and his family an existence worthy of human dignity and
supplemented, if necessary, by other means of social protection.
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4. Everyone has the right to form and to join trade unions for the protection of his .ne
interests.
 Article 24
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Everyone has the right to rest and leisure, including reasonable limitation of
working hours and periodic holidays with pay.
 Article 25
1. Everyone has the right to a standard of living adequate for the health and well-
being of himself and of his family, including food, clothing and housing and
medical care and necessary social services and the right to security in the event of
unemployment, sickness, disability, widowhood, old age or other lack of
livelihood in circumstances beyond his control.
2. Motherhood and childhood are entitled to special care and assistance. All
children, whether born in or out of wedlock, shall enjoy the same social
protection.

 Article 26
1. Everyone has the right to education. Education shall be free, at least in the
elementary and fundamental stages. Elementary education shall be compulsory.
Technical and professional education shall be made generally available and
higher education shall be equally accessible to all on the basis of merit.
2. Education shall be directed to the full development of the human personality and
to the strengthening of respect for human rights and fundamental freedoms. It
shall promote understanding, tolerance and friendship among all nations, racial
or religious groups and shall further the activities of the United Nations for the
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3. Parents have a prior right to choose the kind of education that shall be given to
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 Article 27
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1. Everyone has the right freely to participate in the cultural life of the community,
to enjoy the arts and to share in scientific advancement and its benefits.
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2. Everyone has the right to the protection of the moral and material interests
resulting from any scientific, literary or artistic production of which he is the
author.
 Article 28
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Everyone is entitled to a social and international order in which the rights and
freedoms set forth in this declaration can be fully realized.
 Article 29
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1. Everyone has duties to the community in which alone the free and full
development of his personality is possible.
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2. In the exercise of his rights and freedoms, everyone shall be subject only to such
limitations as are determined by law solely for the purpose of securing due
recognition and respect for the rights and freedoms of others and of meeting the
just requirements of morality, public order and the general welfare in a
democratic society.
3. These rights and freedoms may in no case be exercised contrary to the purposes
and principles of the United Nations.

 Article 30
Nothing in this declaration may be interpreted as implying for any state, group or
person any right to engage in any activity or to perform any act aimed at the
destruction of any of the rights and freedoms set forth herein.
2.4 Theories of Human Rights

Freedom is the goal rather than the ground of human rights. But freedom is also
essentially dependent on others and other cultures. Achieving the conditions for freedom
- human rights - is humanity's overriding moral obligation.
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Since the original UN universal declaration of human rights laid out the general
principles of human rights, there has been a split between what have been regarded as
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civil and political rights as opposed to economic, cultural and social rights. It was, in fact,
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the denial that both could be considered “rights” that prevented them from being
included in the same covenant. Essentially, the argument for distinguishing the two
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concerns the nature of freedom. The civil rights to the freedoms of speech, religion,
assembly, association and so on do not specify the content of the speech, the theology of
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the religion or the purpose of the assembly or association. Freedom in such cases is
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necessarily value-neutral. In leaving the choice up to the individual, these rights
purposefully abstract from the content of this choice.
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The case is quite different for economic, cultural and social rights. All of these
necessarily express values with regard to the forms of our social organization. This is
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because they move beyond individual choices to consider the purposes or goals of our
existence together. Thus, the rights to the cultivation of a cultural identity necessarily .ne
impact more than the individuals exercising them. As collective, they affect the society as
a whole. The same holds for the UN sponsored rights of a person “to a standard of living
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adequate for the health and well-being of himself and of his family, including food,
clothing, housing and medical care and necessary social services.” For a society to honor
these rights involves specific choices with regard to its social content and collective
organization. Such choices embody a particular value - in the UN’s words, that of the
“social security” of the individual. Freedom, here, is freedom for specific social goals. Since
these goals are collective, they have an impact on our individual choices. Thus, while my
right to expressing my opinion need not impact yours, this is not the case for the
economic rights the UN covenant endorses.
The question I want to explore is the nature of the relationship between these two
types of rights. Their differences are clear. Civil and political rights, in abstracting from
specific content, are value-neutral. As such,Downloaded From:
they express anwww.EasyEngineering.net
abstract freedom, generally

understood as a freedom from government interference. Economic, cultural and social

rights, by contrast, are value-laden. The freedom that they embody is not abstract since it
is, by definition, directed towards specific societal goals. Given this, can we really call
both types “rights” ? Civil and political rights, because of their abstract quality, claim to
be universal. Can the same be said of value-laden rights ? Since values are necessarily
embedded in a culture, does not the inclusion of such rights relativize them to specific
cultures ? Doesn’t it thereby undermine any claim they might have toward universality?
To answer these questions, we have to understand the relation between rights and
freedom. My claim will be that rights are ultimately rights to freedom. Understanding
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freedom as the goal rather than the ground of rights gives us an insight into how the two
types of rights function together.
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1. The relation of rights and freedom
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In the modern period, freedom has traditionally been conceived as innate and, hence,
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as independent of our particular social relations. The social contract theorists, for
example, took it as a feature of our being in a “state of nature” prior to society. Thus,
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according to John Locke, the “state all men are naturally in … is a state of perfect freedom
to order their actions and dispose of their possessions and persons as they think fit ….” It
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is because they have this inherent, pre-social freedom that they can bind themselves to
form the social contract. For Hobbes, who considers the natural state of man a “war of
everyone against everyone,” human freedom is also prior to society.
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this war, what is commonly called the "right of nature … is the liberty each man hath to
use his own power, as he will himself, for the preservation of his own nature, that is to
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say, of his own life.” For both Locke and Hobbes, then, humans are naturally free. This
view is not limited to the Anglo-Saxon tradition. We also find it in Kant, who sees
freedom as a correlate of our rational nature, Whenever we employ our reason to
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universalize the maxim of our action - that is, whenever we ask what would happen if
everyone acted in the way we propose to act - we are using our reason to abstract this act
from the determining circumstances of every possible situation. In other words, we use
our reason to apprehend the proposed act as free from all external determinations. We
thereby grasp the possibility of our freely performing it for its own sake. This is the
possibility of our acting independently of the particular rewards or punishments the act
might carry with it in a particular situation.
The conception of political and civil rights that grows out of this view involve the
necessary limitations on our original freedom once we enter into society. In society, we
no longer have a “perfect liberty” to use ourDownloaded
power to defend our lives and interests. We
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cede part of this to the state, i.e., to its laws, judges and forces of public order, in exchange
for its defense of our freedoms. Such freedoms, such as those of expression, assembly, petition,
etc., are maintained by us as rights. The ideal here is the maximum amount of individual
freedom consistent with the limitations imposed by our living together. As Kant
expresses this : “A constitution of the greatest possible human freedom according to laws,
by which the liberty of every individual can consist with the liberty of every other … is …
a necessary idea, which must be placed at the foundation not only of the first plan of the
constitution of a state, but of all its laws.”
This, briefly, is the theory behind the notion of value-neutral rights. Their neutrality
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stems from the abstract nature of the freedom they rest on. For Locke and Hobbes, this is
the freedom of the isolated self, the self in a state of nature prior to society. For Kant, it is
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the freedom of the self-abstracted from all determining circumstances. Put in these terms,
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the objections of those who advocate cultural, economic and social rights is clear. It is
that a self-abstracted from its cultural, economic and social situation is an empty
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abstraction; and so is the freedom ascribed to this self.
The dependence of freedom (and, hence, of the rights that express it) on our relations
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with others is based on the insight that for our freedom to be real, we must have choices.
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Such choices are not abstract; they are not pulled from thin air. We grasp them through
our encounters with others. Thus, the child first becomes aware of them as she learns how
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to make her way in the human world : How to eat at the table, dress herself, read, ride a
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bicycle, and so on. Each new project gives her another option, another way of being and
behaving. It enriches the range of the choices she can conceive. The same happens in later
life. As adults, whatever we see others do tends to be regarded (whether favorably or .ne
unfavorably) as a human capacity. As such, we regard it as one of our own possibilities.
Even though we might never choose to actualize a possibility, it still forms part of what
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we could be capable of given the appropriate motivations and circumstances.
This enrichment of our options is also an enrichment of the meanings the world has for
us. These meanings are both linguistic and disclosive. When a child’s caregivers teach her
her initial projects, they accompany this with a constant stream of verbal commentary.
She first learns, for example, the word spoon as she learns to use it to eat. Its meaning is
given by its function, and its function is set by the particular projects her caregivers
introduce her to. As is obvious, the more multiple the projects an object is involved in, the
more multiple are its meanings. Paper, for example, can mean something to start a fire
with (a combustible material). It can also mean something to write upon, something to
fold to make a paper airplane, a surface for drawing, and so on. Each new use discloses a
new aspect of it and adds to what comes to mind in connection with the word. This same

holds generally. The pragmatic meanings of the objects that fill our world reflect our
understanding of how we and others “make our way” in the world. The multiplicity of
meanings attached to objects and states of affairs is correlated to the multiplicity of our
projects and thus indicates the options that form the content of our freedom.
Given that others provide us with the choices that make up freedoms content and
given as well that the very language that we use to communicate these choices is
provided by them, we cannot speak of the freedom of an abstractly isolated person.
Human freedom, the freedom that goes beyond instinctively directed animal desire, is an
intersubjective construct. As such, it is vulnerable to the actions of others. Our exposure
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to the choices they offer can be limited by our political, economic, cultural and social
circumstances. Politically, limitations can be placed on speech and assembly, thus
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limiting our exposure to alternate ways of being and behaving. Tyrannies, for example,
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strive to produce a populous that has no idea of such alternatives. Their ideal is a
citizenry that thinks, acts and discloses the world according to a limited number of state
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approved projects. So disclosed, this world cannot offer any evidence running counter to
the claims of the state. Freedom in such a world operates within a limited set of options,
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each of which, when enacted, confirms the others in disclosing a single reality, one with
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no evident alternatives. Such limitations, of course, need not be only political. They can
just as well be economic, cultural and social. Thus, our exposure to alternatives can be
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limited by cultural and social norms. It can also be a function of our economic status. If
we lack a standard of living adequate for our “health and well-being,” that is, if we lack
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the “food, clothing, housing and medical care” that constitute such a standard, then the
choices open to us are necessarily limited. The same holds for the “social services”- such .ne
as the opportunities to obtain an education - that would allow us to better our condition.
All of these impact the content of our freedom. To speak of rights in this context is to
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recognize that both notions of rights - both the value-neutral and the value-laden - are not
the expressions of an original abstract freedom. They rather state the requirements for
freedom’s concrete realization.
2. Implications
There are several implications that can be drawn from the above. The first is that
freedom is socially constituted. It arises in our presenting each other alternative ways of
acting based on alternative ways of interpreting our common reality. Each such
alternative increases our awareness of the options available to us and hence, enriches the
content of our freedom. To paraphrase Kant, without the experience of such alternatives,
the concept of freedom is empty, just as without the concept
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such alternatives is blind. Thus, without the requisite experience, freedom remains simply
an abstract notion. It designates the idea of changing our condition without any
conception of what such changes would be. Similarly, without this idea, that is, without
our taking the alternatives presented to us as possibilities we could achieve, our
experience of them is blind in the sense that it has no ordering principle. We do not grasp
them as alternatives possible for us.
That both are required leads to the second implication. This is that the rights
associated with freedom are both negative and positive. Negative rights are the restraints
on power that are required to keep open for us the various possibilities of being human.
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The classic formulation of the restraints on political power occurs in the US bill of rights.
It is that “Congress shall pass no law … abridging” the freedoms of the press, speech,
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assembly, religion, and so on (Art 2). Positive rights involve our ability to achieve the
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possibilities presented to us by others. Thus, the right to education is fundamental to our
ability to change our social-economic condition. While we learned our original projects
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through the observation and imitation of our caregivers, most require the training that
only public education can provide.
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The concept of freedom implies more than the simple ability to change our condition.
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As involving the options presented to us by others, it is, as I said, an intersubjective
construct. Expressed subjectively, its conception expresses our capacity to surpass
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ourselves by changing ourselves. This capacity points to a certain excessive quality of our
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selfhood. Insofar as we internalize the possibilities presented by others - that is, recognize
them as part of our human possibilities-we always exceed the predictions that can be
made about us from our past behavior. We are free in the sense of not being predictable. .ne
The excess behind this characterizes our ontological condition as social animals. Given
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our finitude, we can never exhibit all that we are capable of since the source of the latter is
the others who exceed us. In other words, the source of this excess is the richness of
human possibilities presented by our intersubjective world. Objectively regarded,
freedom is this very richness. The increase of freedom is its increase. Such an increase is
accomplished through the exercise of our human rights, both negative and positive.
With this, we have our third implication, which is that human rights are not based on
some original, abstract freedom. They are not the remnants of it reserved to us after the
foundation of the state. They are rather the means by which we first achieve our human
freedom. Freedom, in other words, is the goal rather than the ground of human rights. As
socially constructed, it is a teleological concept. So conceived, freedom is the correlate of
the possibilities open to the self. It expresses the richness of the intersubjective realm and,
hence, the richness of the lives of the subjects that constitute this realm.

This leads me to the fourth implication, which is that rights are not per se absolute;
they are rather relative to this goal. Their claim to universality must, in other words, be
evaluated in terms of their serving as conditions for its realization. Take, for example, the
recent US supreme court ruling that treated corporate expenditures for political
advertisements as a form of speech and, hence, as protected by the right of free speech.
The ruling took this right to be absolute and, hence, as universally applicable to
corporations as well as individuals. In the theory I am proposing, the corporate exercise
of this right would have to be evaluated in terms of the goal of political diversity. Would
it add to or diminish the political options available to the public ? Would it increase or
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decrease a candidate’s ability to present such options to the public ? The right’s
applicability to political donations would be conditioned on how it contributed to the
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richness of the intersubjective, political realm.
3. Freedom and culture

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Given our nature as social animals, many of the projects we engage in are
accomplished with others. The initial “I can” of our first projects, such as “I can” ride a
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bicycle or I can “dress myself,” becomes expanded to an “I can” that functions along with
others in various projects. This expansion is correlated to the ways we disclose the world
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and, indeed, to our own identities as the accomplishers of these collective projects. What
we have here is a series of I can’s, which begins with our physical abilities to perceive,
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manipulate and, hence, disclose the physical characteristics of objects and which ends in
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our disclosure of and participation in a given, collectively constituted, cultural world. In
this series, each level serves as a foundation for the next. Thus, the “I can” that is
.ne
correlated to the grasp of a violin as a physical presence is required for the “I can” that
discloses it as musical instrument by playing it. This, in turn, is required for the “I can t
play with others” that discloses the violin’s role in a string quartet. Correlated to this last
is the disclosure of the player as a member of this ensemble. It is also the disclosure of a
world, that of the music written for the players that can only exist as a correlate of their
activity. The pattern exhibited here is perfectly general. It can, for example, be applied to
the constitution of the world of an aboriginal hunting party. The collective activities of its
members enact this world, which itself rests on the activities that constitute the pragmatic
senses of its individual elements - for example, those senses expressing the uses of the
weapons employed. On the basic founding level, we encounter those bodily activities,
such as turning one’s head, focusing one’s eyes, grasping with our hands, etc., that are
involved in manifesting their bare physical presence.

To speak of rights in this context is, first of all, to speak of the means for enacting such
collective I can’s and hence, for activating the corresponding self-identities of the
participants. This can be illustrated by a negative example. With the enclosure of hunting
grounds for the purposes of farming and pasturage, aboriginal hunting cultures in
Canada suffered a collapse. Not only were their members deprived of their means of
supporting themselves, their identities as hunters and, therefore, as providers, vanished
along with the world that their collective “I can” once constituted. The result was the
destruction of their societies. The categories by which they made sense of both their
world and themselves were no longer operable. Cultural rights are meant to prevent such
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destruction. Once again we can speak of negative and positive rights. Understood
negatively, such rights involve the restraints on state power that keep open the
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possibilities of enacting a collective “I can” and thus maintaining a corresponding self-
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identity. These typically include the rights to speak, write, form schools, and teach in the
language that bears a particular culture. Understood positively, such rights entail the
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obligations the state undertakes to support a culture. In Canada, for example, the Charter
of Rights and Freedoms obligates the state to provide its English and French minorities
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with an education and public services in their own language (Art 23).
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To see such obligations as the fulfillment of rights, more is required than their position
as means for enacting a collective “I can.” In the theory that I am advocating, we must
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also see this “I can” as an option of our freedom, that is, as part of the richness of the
intersubjective world. This means that such rights are not absolute, but relative. As with
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all other rights, they must be shown to contribute to our freedom, that is, increase the
diversity of the world in which we dwell. Thus, such rights cannot be limited to a .ne
dominant culture. They must include different cultures as well as the establishment of
the public spaces necessary for their interaction. They must also include the rights of
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individuals to absent themselves from their cultures, that is, not follow their norms, but
rather embrace other standards of being and behaving.
4. The temporality of culture and citizenship

Can cultures tolerate such openness ? Can they really enter into a public space where
they are forced to interact ? Such questions arise when we define culture in terms of
racial identity and inherited religious traditions. To the point that such features cannot be
shared, culture is exclusionary. As such, it is necessarily opposed to the inclusivity of
modern citizenship. To be a citizen in a modern state is to take part in its shared projects.
It is to participate in its decision making and to bind oneself to fulfill the obligations such
decisions entail. So conceived, the identity ofDownloaded
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from the ethnic or religious backgrounds of society’s members. Its focus is on the future
as present in the projects of political action. Those who participate in this action gain their
identities from it, i.e., from the roles they play in the accomplishment of the agreed-upon
goals. Given this, don’t we have two opposed conceptions of social cohesion, one based
on what we inherited from the past, the other on what we want to accomplish in the
future?
Such a view is too abstract. For society to function, both conceptions are required.
Human temporality includes both the past and the future. Thus, a culture without a sense
of the future is static. To the point that it simply preserves its inherited traditions, it
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becomes a museum piece. It gains a future in its encounter with the new.
necessarily, is an encounter with the other. This is why Levinas writes, “the other is the
This,
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future.” His meaning is that the future, in offering us the new, springs from an
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interpretation, a view of the world that is different from our own. It springs, in fact, from
the other who interprets it from a different set of experiences. This holds both
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individually and collectively. The encounter with another culture can, of course, be
destructive. But, within the framework of the cultural rights defined above, it can also
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allow a culture to renew itself and grow. This is because confronting the other, it has to
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respond to being called into question. Faced with an alternative way of being and
behaving, its members are called on to consider why they interpret the world in the way
they do.
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The point may be put in terms of the freedom that is the goal of human rights. This, I
have stressed, is the freedom afforded by others with their different ways of being and
behaving. Insofar as these ways are culturally structured, we have to say that freedom .ne
presupposes culture as the soil from which it springs. It proposes it in the alternatives
offered by the other culture. It also presupposes one’s own culture as that which such
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alternatives call into question. One’s own culture is presupposed as that which is
transcended in the new perspective gained. This perspective does not float in the air. If it
is to endure, it has to become anchored in one’s own culture, that is, become part of its
accomplished past. It is here that the abstractions from ethnic and religious identity that
define modern citizenship play their crucial role. Such abstractions embody the
transcendence necessary for cultural renewal. They do so by suspending the exclusivity
that would prevent cultures from encountering each other. Such abstractions, however,
have no sense apart from the inherited factors (the contribution of the past) that are
offered and transcended. The process of a living, self-renewing culture points, then, to the
complex reality of human life. To grasp it, we cannot take culture, political life and

freedom as abstract notions. They are all part of the concrete temporalization of human
life in which the encounter with the new becomes part of our collective identity.
It is in terms of this identity that we have to say that both value-neutral and value-
laden rights are human rights since both are required for the realization of our freedom.
Their claim to universality is actually to the universality of this goal. If we take freedom
as essential for our being human, then the requirements for its realization are human
rights in the sense that they are required by our humanity. The point, however, is to see
such humanity as a goal, not a given. Rather than something we are born with, it is, along
with the freedom that characterizes it, something we have to achieve. This achievement
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is, in fact, our overriding moral obligation. To be human is to obligate ourselves to
accomplish our humanity.
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Two Marks Questions with Answers
PART A
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Q.1 What is Geneva convention ?
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Ans. : The Geneva conventions comprise four treaties, and three additional protocols, that
establish the standards of international law for humanitarian treatment in war. The
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singular term Geneva convention usually denotes the agreements of 1949, negotiated in the
aftermath of the Second World War (1939–1945), which updated the terms of the two 1929
treaties, and added two new conventions.
Q.2 Write short note on universal declaration of human rights, 1948. rin
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Ans. : The Universal Declaration of Human Rights (UDHR) is a historic document that was
adopted by the United Nations general assembly at its third session on 10 December 1948
.ne
The declaration consists of 30 articles affirming an individual's rights. The declaration was
the first step in the process of formulating the International bill of human rights, which was
completed in 1966 and came into force in 1976, after a sufficient number of countries had
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ratified them.
Q.3 Define petition of right (1628).
Ans. : The next recorded milestone in the development of human rights was the petition of
right, produced in 1628 by the English Parliament and sent to Charles I as a statement of
civil liberties.
Q.4 United States declaration of independence (1776).
Ans. : On July 4, 1776, the United States congress approved the declaration of
independence. Its primary author, Thomas Jefferson, wrote the declaration as a formal
explanation of why Congress had voted on July 2 to declare independence from Great
Britain, more than a year after the outbreak of the American Revolutionary War, and as a
statement announcing that the thirteen American Colonies were no longer a part of the
British Empire.

Q.5 List representatives of 12 states and kingdoms signed the convention.

Ans. :
 Swiss Confederation
 Grand Duchy of Baden
 Kingdom of Belgium
 Kingdom of Denmark
 Kingdom of Spain
 French Empire
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 Grand Duchy of Hesse
 Kingdom of Italy
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 Kingdom of the Netherlands
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 Kingdom of Portugal and the Algarves
 Kingdom of Prussia
 Kingdom of WürttembergsyE
Q.6 Define universal declaration of human rights
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Ans. : The general assembly, proclaims this universal declaration of human rights as a
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common standard of achievement for all peoples and all nations, to the end that every
individual and every organ of society, keeping this Declaration constantly in mind, shall
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strive by teaching and education to promote respect for these rights and freedoms and by
progressive measures, national and international, to secure their universal and effective
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recognition and observance, both among the peoples of Member States themselves and
among the peoples of territories under their jurisdiction. .ne
Q.7 Define Article 28.
Ans. : Everyone is entitled to a social and international order in which the rights and
freedoms set forth in this Declaration can be fully realized.
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Q.8 Define theories of human rights.
Ans. : Freedom is the goal rather than the ground of human rights. But freedom is also
essentially dependent on others and other cultures. Achieving the conditions for freedom -
human rights - is humanity's overriding moral obligation.
Q.9 Define Article 27.
Ans. :
1. Everyone has the right freely to participate in the cultural life of the community, to
enjoy the arts and to share in scientific advancement and its benefits.
2. Everyone has the right to the protection of the moral and material interests resulting
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he is the author.

Q.10 Define Article 29

Ans. :
1. Everyone has duties to the community in which alone the free and full development
of his personality is possible.
2. In the exercise of his rights and freedoms, everyone shall be subject only to such
limitations as are determined by law solely for the purpose of securing due
recognition and respect for the rights and freedoms of others and of meeting the just
requirements of morality, public order and the general welfare in a democratic
society.
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3. These rights and freedoms may in no case be exercised contrary to the purposes and
principles of the United Nations.
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Review Questions
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1. syE PART B
Explain Geneva convention of 1864. (Refer section 2.1.7)

2.
3. ngi
Explain universal declaration of human rights, 1948. (Refer section 2.3)
Explain the Theories of human rights. (Refer section 2.4)
4.
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Explain evolution of the concept of human rights Magana Carta. (Refer section 2.1)
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Notes
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Universal Declaration of Human Rights

2.4 Theories of Human Rights ngi

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2.1 Evolution of the Concept of Human Rights Magana Carta

2.1.1 Petition of Right (1628)

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consent of parliament, (2) No subject may be imprisoned without cause shown

2.1.2 The Background of Human Rights

2.1.4 United States Declaration of Independence (1776)

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2.1.7 The First Geneva Convention (1864)

2.2.1 History rin

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and expansion of these basic principles of the original Geneva convention. g

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ww change his nationality.

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2.4 Theories of Human Rights

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understood as a freedom from government interference. Economic, cultural and social

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3. Freedom and culture

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4. The temporality of culture and citizenship

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Q.5 List representatives of 12 states and kingdoms signed the convention.

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Q.10 Define Article 29

Explain Geneva convention of 1864. (Refer section 2.1.7)

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