All posts by Eyassu Gayim

About Eyassu Gayim

Associate Professor, School of Global Studies, University of Gothenburg (Sweden). The author holds the degrees of Juris Doctor from Uppsala University (Sweden), Juris Licentiate from the University of Oslo (Norway), Bachelor of Law from Haile Selassie I University in Addis Ababa (Ethiopia) and the diploma of International and Comparative Law of Human Rights from the Strasbourg Institute of Human Rights (France). Prior to joining the School of Global Studies in 2012 he was an Adjunct Faculty at San Diego State University (California). Before that he was senior researcher and lecturer at Helsinki University and the University of Lapland in Finland.

The War in Tigray and the Challenges Faced by the United Nations

1. Introduction

The war in Tigray and the consequent humanitarian catastrophe are being closely followed by important global news outlets. According to the United Nations the lives of 4.5 million Tigrayans (Tegaru) are already endangered by this war and the dislocation it has caused. UN representatives, aid agencies and states have repeatedly urged the Government of Ethiopia to restore the supply of electricity and other public services and to establish a humanitarian corridor for the delivery of aid. The response of the Ethiopian Government has not been encouraging. Many fear that a genocide is already underway, probably on an even larger scale than that seen in Rwanda in 1994, since Tigray has been deliberately cut off from the outside world for more than one hundred days. UN offices and officials have highlighted the magnitude of this crisis time and again. Unfortunately, the political response, especially from the Security Council, has so far been disappointing, to say the least. This study shines a light on the nature of this war, how it is now perceived by others and what the challenges facing the United Nations are.

Tigray is one of the eight states of Ethiopia. It is surrounded by Eritrea to the north, Sudan to the west, and the Ethiopian states of Amhara and Afar to the south and east, respectively. Around 97% of Tigrayans are adherents of Coptic Christian Orthodox religion.  Tigrayans are also, more or less, united by a common language (Tigrigna), culture, tradition and psychological make-up, very much like most European nations. Their territory is heavy with history, and considered by the inhabitants as the sacred ground of their ancestors, better known as the Axumites. Prior to the expansion of Islam, the Christian Kingdom of Axum was one of the four great powers of the world. Its army has not only subdued Arabia Felix, across the Red Sea, but would also march all the way north to the borders of Egypt, when necessary. It was this Axumite power, and the common interest to defend Christianity, which made the kings of Axum and the Roman Emperors, such as,  Constantine and Justinian, allies against Persia.

Leaving history behind, from 1991 until the Ethiopian Federal troops occupied the capital of Tigray, Mekelle, at the end of November 2020, this State was ruled by the Tigray People’s Liberation Front (TPLF). This front had also occupied a dominant position in the Federal Government led by the Ethiopian People’s Revolutionary Democratic Front (EPRDF), from 1991 until 2018. Thereafter, Ethiopia was led by a new Prime Minister, Abiy Ahmed Ali (hereafter referred to as Abiy, Abiy Ahmed or Mr. Ahmed). Mr. Ahmed changed the ruling method used previously by EPRDF by his own political party, known as the Prosperity Party. The TPLF refused to join, leaving Tigray as unrepresented in the current Government.

Abiy Ahmed justified the present ‘military operation’ in Tigray as a response to the TPLF’s attack of November 4 on the Federal Government’s Northern Defense Forces which was stationed on the border of Tigray facing Eritrea. The aim, according to him, was to ensure law and order by bringing those responsible for the attack to justice. He clarified this, on November 12, by stating:

“The Federal Government had every right to deploy Federal Security Forces and use force in order to apprehend those implicated in massive corruption and gross human rights violation”. (1)

Yet, it is well known for all that relations between the Central Government in Addis Ababa and the TPLF Government in Mekelle had been deteriorating throughout 2019, especially after Ahmed postponed the national election by using the present pandemic as a pretext. Those who are familiar with the history of this region also know too well that this conflict has deeper roots linked to the past cycle of wars, dominance, repression, and retribution, the political rivalry between the Amhara and Tigrayan political leaders (and their supporters) as well as that between the TPLF and the Eritrean leader, Isaias Afeworki.

From the beginning, the present military operation was directed at both military and civilian targets by resorting to systematic and deliberate bombardment of churches, hydroelectric dam, factories, plundering and civilian atrocities. Later, the occupying army broadened the kinds of atrocities that were committed by expanding the robbery, rape and looting of homes, shops, hospitals, clinics, pharmacies and the distant  monasteries. Even after the Federal Government formally declared that the military operation was over, on 28 November, these atrocities only intensified. They were systematic in that they are widespread, while revealing similar pattern, as if they are well designed. The occupying force is composed of Eritrean soldiers, Amhara militias and members of Federal Army. The latter was expected to protect the civilians from harm. Yet, the Government either does not fully acknowledge that atrocities were and are committed or belittles them when the evidence is widely circulated. Even the presence of Eritrean soldiers is still not officially admitted, although increasing numbers of senior Ethiopian military and administrative officials are now speaking about it and as raising serious problems.

Like many other human rights organizations, the Human Rights Watch has followed what is happening in Tigray very closely, including by registering the crimes that were and are committed, the times and places and who is responsible. Recently, it has released reports which were prepared after conducting interviews and assessing the available satellite imagery, photographs and videos, and reports of forensic experts, journalists and aid workers. These reports list the cities where civilians were killed and injured in violation of the rules governing military operations. One of them mentions the places where the Ethiopian forces have “fired artillery into Tigray’s urban areas in an apparently indiscriminate manner that was bound to cause civilian casualties and property damage”, displacing “thousands of people.” The cities of Mekelle, Humera, Shire and Axum are all said to have been attacked in similar ways. This report states further that “[M]any of the artillery attacks did not appear aimed at specific military targets but struck generalized populated areas.” One of the consequences of these kinds of indiscriminate attack is that well over “200,000 people are internally displaced, while tens of thousands have also fled to neighboring Sudan”. Compounding the problem facing those who remained in their homes is the lack of “adequate access to food, fuel, water, and medicines … [and the] widespread abuses, including apparent extrajudicial killings, pillage, and arbitrary detention by Ethiopian federal forces and special forces and youth militia known as ‘Fano’ from the neighboring Amhara region” as well as by Eritrean forces. (2)

The present humanitarian catastrophe is directly linked to the deliberate destruction of farms and factories, the collapse of markets, the disruption of electricity and water supplies, banking and other services, the absence of employment, or pay for services given and the overall fear and insecurity that prevails. “The situation is extremely grave in Tigray” stated the February 5 update of the United Nations  Secretary General, “and hundreds of thousands of people need life-saving assistance.” (3)

The UN and other international aid agencies have shown both the eagerness and readiness to save life in Tigray by delivering the desperately needed humanitarian assistance if they are allowed to enter Tigray. Unfortunately,  the Government of Mr. Ahmed has not been keen or willing to cooperate for several months. “Three months into the conflict in Tigray in northern Ethiopia the humanitarian response remains severely constrained and inadequate”, explained the above report of the UN Secretary General, “and the main reason for that is simply that we cannot reach the people in deed and also that we have not received the clearances yet to move the necessary staff into Tigray in the first place.”(4)

As expected, in times like these, it is members of vulnerable groups, such as, infants, pregnant women, the elderly, young girls, refugees, those with illness and persons with disability that are seriously affected by the violence and the danger, initially. The report of UNICEF, dated 12 February, titled “Children in Tigray in acute need of protection and assistance”, described the “troubling picture” which was seen early on, revealing “severe and ongoing harm to children”. The UNCEF team, which was allowed to visit Shire and a few other cities, observed bank services that were not operational, “damaged or looted” clinics, halted immunization programs, damaged stock of vaccines due to power cuts, and “severe acute malnutrition – which is potentially life-threatening”. They saw internally displaced people taking shelter in schools that were not equipped with drinking water supplies, showers or properly functioning toilets. They found unaccompanied children, separated from their families, many showing symptoms of deep psychosocial distress. “The very real risk of disease outbreak, coupled with poor access of water, sanitation, hygiene and health services, rising food insecurity and inflation in food prices,” concluded this report, “poses grave threats for malnourished children.”(5)

The on-going gender-based sexual violence is so widespread even senior Ethiopian military officers are now speaking out openly about the seriousness of this problem. In one of the meetings held in the capital, which was aired live on the Ethiopian state channel (EBC) one of the senior officers is seen expressing his anger by asking “Why does a woman get raped in Mekelle city? It wouldn’t be shocking if it happened during the war … But women were raped yesterday and today when the local police and federal police are around”.(6) The answer is obvious. Women and young girls too are the targets of this war, for degradation and all forms of abuses.

The UN Special Representative of the Secretary-General on Sexual Violence in Conflict, Pramila Pattern expressed her abhorrence about the kind of sexual violence which Tigrayan girls and women are exposed to. She singled out the “disturbing reports of individuals allegedly forced to rape members of their own family, under threats of imminent violence”, the practices of soldiers who demand “to have sex in exchange for basic commodities …{and} sexual violence against women and girls in a number of refugee camps.”. Ms. Pattern, underscored the importance of extending to these victims medical and psychosocial assistance, including “emergency contraception and testing for sexually transmitted infections (STIs)… to ensure that those who have been forced from their homes due to violence are not placed at further risk of sexual violence within the camps” and to help those “sleeping in an open field with no water or food.”(7)

The 96,000 Eritrean refugees that were sheltered in the four UN administered refugee camps prior to this war, i.e., in Mai Aini, Adi Harush, Shimelba and Hitsats, were not just trapped, but were directly targeted for attack by the occupying Eritrean soldiers. UN High Commissioner for Refugees, Filippo Grand described what is now seen in some of these camps as a serious violation of international law. The Commissioner has repeatedly urged the Ethiopian Government to protect these refugees and to enable his office to visit all these four refugee camps so that they may receive humanitarian assistance, but all in vain. In his statement of January 14, the Commissioner reiterated his previous concerns by underscoring that he was “extremely troubled by the humanitarian situation in the Tigray (and) …very worried for the safety and well-being of Eritrean refugees.” Mr. Grandi was also alarmed by the reports his office was receiving concerning the “ongoing insecurity and allegations of grave and distressing human rights abuses, including killings, targeted abductions and forced return of refugees to Eritrea … satellite imagery showing new fires burning and other fresh signs of destruction at the two camps … [all revealing] major violations of international law.”(8)

Similar concern was echoed by UN Secretary General, who was alarmed by the attacks on the refugee camps. He denounced the forceful abduction the refugees, and the claims that some of them are sent back to Eritrea by the Eritrean soldiers stationed around the refugee camps. The Secretary General also raised concerns by claims that some of refugees that have escaped from the camps “have resorted to eating leaves because there was no other food available.”(9)

It is apparent that the state of emergency which the Ethiopian Federal Government declared when the war broke out has provided as a legal cover to disguise the atrocities that are committed by the soldiers against civilians. This law suspended basic the human rights and freedoms that are guaranteed by international human rights law and the Ethiopian Constitution and permitted the agents of the Government and soldiers to take measures that would not be allowed under normal conditions. Using this cover, these soldiers and militiamen would stop and search any person, anywhere or take that person. They also enter homes they wish to search and do whatever they wanted once inside. The 6 p.m. curfew exposes everyone to these soldiers and militiamen who are free to enter their homes under the pretext of ‘searching for weapons or persons of interest’. Reports after reports now tell similar stories of how these soldiers enter homes to abuse those living inside and to steal anything they find: jewelry, clothes, computers and phones. Any resistance or refusal to comply can lead to execution on the spot.

Robbery is so widespread there are even reports that claim to have seen televisions, cooking stoves and refrigerators being loaded on to cars parked outside homes, and pictures that show tanks and camels carrying all kinds of stolen private properties. When car thefts started to multiply some car owners began to respond by letting down the tires of their cars to make it difficult for the robbers to move them.

Young girls and women are raped, sometimes repeatedly, inside their homes and in the most despicable ways. The interviews which are broadcasted by some foreign media include accounts of husbands being forced to keel and watch as their wives are raped by several soldiers, and of family members being told to rape their family members. One of the girls that was interviewed stated that she was shot several times for refusing to comply with an order to have sex with her grandfather. The latter too was shot to die, but survived later. The fact that these kinds of atrocities are widely committed in different cities suggests that rape is systematically perpetrated to achieve political goals, i.e. to destroy the minds of civilians.

In the latest press release the United States State Department issued made it clear that:

“The United States is gravely concerned by reported atrocities and the overall deteriorating situation in the Tigray region of Ethiopia.  We strongly condemn the killings, forced removals and displacements, sexual assaults, and other extremely serious human rights violations and abuses by several parties that multiple organizations have reported in Tigray.  We are also deeply concerned by the worsening humanitarian crisis.”(10)

After visiting Ethiopia, Finland’s Foreign Minister, Pekka Haavisto, who was sent by the European Union on a fact-finding mission for EU foreign policy concluded that the situation in Tigray is now “militarily and human rights-wise, humanitarian-wise very out of control”, a situation where “we do not see the end”.(11) This strengthens the fears the European Union had about the dangers posed by this conflict and its concern over “the humanitarian situation, as well as allegations of human rights violations and ethnic targeting.”(12)

2. The Public Outrage Over the War

What is particularly worrisome for those who are following this tragic war closely but from far away is that this is not ‘a policing operation’ which is linked to one unfortunate incident on the Ethio-Eritrean border on November 4 as the Ethiopian Government claimed: i.e., to arrest individuals to ensure law and order for attacking the Ethiopian Defense Forces. There is no doubt that what is going on is a big war, rather than ‘a policing operation’, and one whose targets include civilians. This is why Grahman Romanes, an Australian scholar with a very long record of working for humanitarian agencies called it “nothing short of genocide.”(13)

Similar views were expressed during the debate of the British House of Lords, only three weeks after Abiy Ahmed launched the military operation. Lord Triesman was convinced that what the Tigrayans face is “ethnic purges which may be on the edge of genocide”. Lord Alton of Liverpool, who shared this position, asked what the plans of the British Government was to discharge its “duties under the Genocide Convention to prevent, to protect and to punish” those responsible, in order “to avert yet more death, more carnage, more instability, and more refugees”.(14) Underscoring the urgency of taking measures Lord Viscount Waverly wondered how the political world would respond to what is taking place. “My Lords,” he said, “is the world going to stand by, yet again, knowing that mayhem is seemingly set to unfold, do nothing and having to then deal with the added consequences of regional instability?(15)

Speaking before the European Parliament, Irish representative Mick Wallace called the Ethiopian leader, Abiy Ahmed “a war criminal” who should be charged by the International Criminal Court since his government “has done everything under its power to prevent humanitarian aid reaching the people of Tigray… used hunger as a weapon… deliberately burn[ed] fields of crops in Tigray [and]…caused[ing] suffering and death on its citizens”.(16)

Belgian representative Assita Kanko also asked fellow European Parliamentarians to consider why millions of Tigrayan civilians had been driven from their homes, lost their harvests to arson and are forced to abandon their fields. “It seems that the Ethiopian government is deliberately withholding food in order to starve people”, she concluded “central and eastern Tigray are on the brink of famine … There are continued reports of violations of international humanitarian law, such as the deliberate shelling of civilian targets, extra judicial executions and widespread looting.” She advised the Ethiopian leader to return the Peace Prize which he received from the Norwegian Peace Committee since such a prestigious prize was not meant for a person like him.(17)

Professor Martin Plaut, a South African expert on the Horn of Africa at London University expert on Horn of Africa, had difficulties in understanding the “intolerable suffering that people are required to put up with … the destruction …the looting, the discretion, the removal of religious artifacts”.(18) Helen Clark, the former Prime Minister of New Zealand described what is taking place inside Tigray as “shocking”, where all kinds of human rights abuses are in full display, “including accounts of rape & other forms of torture and inhumane & degrading treatment; arbitrary execution; destruction of health & other facilities.”(19)

The executive director of the World Peace Foundation, Professor Alex de Waal, had no doubt that the people of Tigray is facing now “unspeakable tragedy” with “uncounted numbers of people in Tigray who are in mourning for their loved ones, including many friends and family who perished in war, of hunger and disease or at the hands of cold-hearted killers”, those who do not know what is coming tomorrow. (20) This is also why four former American Ambassadors of the United States to Ethiopia, namely, Ambassador Aurelia Brazeal, David Shinn, Vicki Huddleston and Patricia Haslach, were forced to write an open letter to the Ethiopian leader expressing concern over what is going on Tigray. They wrote:

“We have watched the conflict in Tigray with gave unease as, according to the United Nations, nearly 60,000 refugees have fled to Sudan, 2.2 million people have been displaced, 4.5 million people need emergency assistance, many of whom are without adequate food. We are also worried about the reported presence of Eritrean troops in Tigray, which could jeopardize Ethiopia’s territorial integrity”. (21)

As if anticipating what is coming, Pope Francis of the Vatican too asked the world to pray for Tigray as far back as November 27.(22) On January 26 the Vatican News reiterated the same concern, by appealing “for comfort for the ordinary citizens of Tigray who are paying with their lives, isolated from the world in a situation of anguish, threatened by violence and terror”. The report expresses fears that “lack of communication may be screening ongoing atrocities”. Particularly disturbing to the Vatican are the news which reveal the “possible murder of 750 people in an assault on the Orthodox Church of St Mary of Zion in Aksum last November… a series of killings and attacks on innocent people in many parts of Tigray … shops, schools, churches, convents and homes … looted and destroyed …two million … displaced … some 60,000 fleeing to Sudan …others (are) reportedly seeking refuge in remote areas in the mountains, without water or access to food”.(23)

Church leaders in Africa too have raised their concern by condemning what is taking place in Tigray. As the press release of the South African Anglican Church Archbishop, Thabo Makgoba, on 23 February, 2021, stated:

“The plight of the Tigrayan people in northern Ethiopia tears at my heart. Over and above the coronavirus which threatens us all in Africa, tens of thousands of people in the region have been forced from their homes, millions need humanitarian aid and there are shocking reports of war crimes in the form of attacks against civilians… indiscriminate shelling of urban areas, striking homes, hospitals, schools, and markets…The level of ethnic hatred which has emerged on social media around this conflict is deeply disturbing. … What is happening in Tigray must not be allowed to deteriorate even further…Pray for justice and peace for the people of Tigray”. (24)

Sad as it may sound, it is rare to see street protests against this war inside Ethiopia itself. Even the religious leaders (outside Tigray) have not denounced the war when monasteries, churches and mosques are deliberately attacked and damaged and religious leaders are murdered in large numbers. As if he was concerned about this, Kjetil Tronvoll, a Norwegian Professor and an expert on Ethiopian politics, felt very sad to see tragedies of this magnitude ignored at the time when local solidarity matters most. He wished more and more people have stood up in defense of higher causes of morality:

“To fight for humanity, to stand for humanity and to stand for that whoever is the victim is the victim of all of us; that it should not be segregated into that victim belongs to that group so that I don’t need to care about. Any people killed in Ethiopia today is a loss to all of Ethiopia, and I see that sentiment is not coming to the surface sufficiently enough, and that I think is very sad.” (25)

A handful Ethiopian opposition politicians are now seen expressing concern over this war and showing sympathy for the victims. After all, the victims which are traumatized are citizens who are neither fighters nor armed. Furthermore the  crimes which the militias and soldiers (including foreign ones) that are committed against these innocent civilians are egregious in kind. Mr. Ledetu Ayelew, the leader of the opposition Ethiopian Democratic Party,  and a few Oromo opposition political leaders are examples of this. There are also a few journalists who are now seen taking risks in uncovering the kinds of horrific crimes that are committed against citizens, e.g., Awlo Media and Ethio Forum, including by identifying the failure of the Government to protect women, children and properties. The Oromo and Eritrean diaspora have been seen in large number denouncing the war from the outset. In particular, the latter continue to show up in large numbers when Tigrayans march in Western streets protesting the war and in denouncing the Eritrean involvement. As more and more people oppose this genocidal war, the domestic public opinion is bound to swing from supporting Abiy Ahmed to calling for an end to this war. Until this happens, Abiy Ahmed will only intensify what he has been during the past months.

3. The Nature of the War and its Outcomes

3.1. The key actors

Prior to the military operation in Tigray there were four political actors that were seen  manoeuvring to shape the political course of the Ethiopian state, broadly speaking, and that of Tigray, in particular. In Addis Ababa, Prime Minister Abiy Ahmed was desperately struggling to consolidate his power by constantly discrediting the TPLF and its supporters. The political leaders in the Amhara state, in Gondar, were preparing their own militia forces to protect the Amhara interests and pressuring Abiy Ahmed to use force against the TPLF as soon as possible. The Eritrean President, in Asmara, was also showing openly his hatred of the TPLF and the eagerness to see its demise. Ever since his enemy was defeated in the 1998 and 2000 border war by the TPLF dominated Ethiopian Government of EPDRF the Eritrean President was working hard to undermine the TPLF including by providing military training to its opponents. The TPLF, which was encircled by these three political actors, was mobilizing to defend itself as well as by rallying the other Ethiopian groups under the banner of protecting the Federalist system and it constitution. Before this latter goal was achieved the adversaries of the TPLF were able to forge their alliance and move faster to destroy the TPLF and the state it was administering.

This, in short, is why we still see the abovementioned four key distinct military forces operating in the theatre of war inside Tigray: namely the Federal Government, the Eritrean army, the militia (and police) force of the Ethiopian state of Amhara and the Tigrayan Defense Force. The former two use their military capacity in full, including with their mechanized forces and air forces. Tigray relies on its militia force. The State of Amhara has intervened with two militia forces, known as the Fano and Fotta Lebash, mainly to secure its territorial claims. The Federal Government also secured additional militia forces from the Ethiopian States of Afar and Oromia by promising them that they too can obtain territorial gains. Besides Eritrea, two other foreign actors are also said to have intervened, namely the United Arab Emirates (UAE) with drones and Somalia which is believed to have sent between 3000 or 4000 soldiers, or perhaps even more. The latter sent this contribution to Eritrea for training for deployment later in the war zones of Tigray.

The Ethiopian Government categorically denies that it has invited external actors for this war. This could be because admitting to the presence of foreign forces would reveal the military weakness of the Federal Army and/or because this violates the constitution of the country as well as international norms. Yet, this foreign involvement is now widely reported in the media. The head of the newly appointed Provisional Administration of Tigray has even confessed that the Federal Army does not have the power to force Eritrean soldiers to leave. Not surprisingly, The United States and other states have informed the Eritrean government to withdraw its forces immediately.

3.2. The war theatre

The zones of operation used by the above forces can be, more or less, identified. Eritrean soldier have occupied the disputed border regions during the country’s 1998 – 2000 war. This is fully recognized by Prime Minister Abiy Ahmed. However, reports and after reports have indicated that they are stationed in and around the major cities of Tigray, in some of the villages and around the four refugee camps where 96,000 Eritrean refugees were sheltered prior to the war.

The Amhara militia forces have already controlled western and southern Tigray, and are also seen making occasional forays into other areas. The Federal army claims to know clearly what is taking place in the regions which are controlled by the Amhara militias and the Amhara police force. Tigrayan sources claim that the Federal soldiers watches in silence when the Amhara and Eritrean soldiers are engaged in looting. But in any case, they are accused of doing the same. Despite this partition of areas of interest, these forces also band together when they are threatened by the Tigrayan forces.

The forces of Tigray are believed to be all around the countryside, although this is denied by the Ethiopian Government. Although the latter claims its Provisional Administrative Authority in Tigray has full control of all of Tigray, some of the officials in this Administration admit experiencing problems in enforcing  decisions at the local level. In a recording of a phone call which was sent to online platform Ethio-Forum, and aired on February 4, some of the senior officials of this Authority are heard confessing their inability to control even half of Tigray. They have also stated recently that they are unable to trace the whereabout of one million Tigrayans from western Tigray alone, and that they prefer to see the departure of both the Eritrean soldiers and the Amhara militia from Tigray.

3.3. The nature of the war

The Ethiopian Federal Government has consistently denied that there is a war or civil war in Tigray. Instead, it refers to it as a military or ‘policing’ operation, whose aim is to arrest the leaders of the TPLF for the attack on the Northern Defense Forces on November 4. For their part, the leaders of the state of Tigray consider what is taking place as a genocidal war which is aimed at obliterating Tigray and its people. In their view, this war has nothing to do with the incident of November 4. Long before that, the Federal Government and the state of neighboring Amhara were engaged in acts aimed at starving the people of Tigray, including by using road-blocs to prevent goods, supplies and food from reaching Tigray. The Federal Government has even refused to release the budget of Tigray and to assist in combatting Covid-19 (e.g., by providing face masks) and the locust swarms. In defense of the latter claim, reference is made to the discriminatory practices which Abiy Ahmed followed when sending spray planes to combat the locust swarms only to the neighbors of Tigray, and his refusal to enable Tigray get the drones which were sent by Tigrayan diaspora from Israel to this end.

If Abiy Ahmed was right in considering the on-going military operation in Tigray as nothing more than ‘policing’ measures, one wonders how all the forces of the Federal Government, those of Eritrea and the Amhara militias as well as the drones of the United Arab Emirates to rain on Tigray simultaneously without prior adequate preparation and coordination. If this is indeed nothing but ‘policing operation’, what are Eritrean soldiers doing now in the major cities of Tigray after the Federal Government has proclaimed the defeat of the TPLF on November 28? And why is western and southern Tigray incorporated into the Amhara state  now? More importantly, why are the economic enterprises of Tigray, churches, monasteries and farms plundered and destroyed and why is it difficult to end this and the widespread rape? Obviously the views of Abiy Ahmed has distorted the reality since what is now seen in Tigray is not only war but an internationalized one.

The fact remains that even if the Northern Defense Forces were not attacked on November 4 by the TPLF, the preparation for this war inside Tigray could not have been stopped. Long before the military operation it was launched, the Tigrayan and Federal political leaders have denounced each other as illegitimate, especially after the national election was postponed by Abiy Ahmed and the TPLF defied this decision by arranging its own election.  The Eritrean leader too was heard, time and again, on Eritrean TV that his country will not be passive when Abiy Ahmed is challenged by the TPLF.  On November 2 Abiy has called on the Sudanese military head, Lt-General Abdel Fattah Abdelrahman Burhan, to protect the borders in the days ahead. That same day the President of the state of Tigray, Debretsion Gebremichael, has also informed his people of Tigray to expect military attack because the Ethiopian and Eritrean armies were placed on a standby for military operation. This is why, he regarded the November 4 incident as a response to the military activities seen at the time, and as self-defense since the Federal army was already on the move elsewhere.

The character and features of this war are covered in greater details in the reports of human rights organizations, such as, Amnesty International and Human Rights Watch. Some of the major Western medias, such as, The New York Times, CNN and Washington Post too provide coverages of the kinds of serious human rights abuses which are seen in this state. Tigray Media House offers daily update on what is happening. The Governments of the United States, the United Kingdom and the European Union also issue statements about the developments in Tigray by relying on credible reports, when they denounce the serious violations of human rights and humanitarian laws.

If what is reported by these and many other sources are true, and most of them come from credible sources and complement one another, what is taking place in Tigray can only be described as a total war. The governments of Ethiopia and Eritrea are using their full military force. What is attacked is not confined to military sites, installations and the forces of the TPLF. Monasteries, churches, farms,  industries, universities and hospitals were and are also targeted. The killing of innocent civilians, rape and abuses in streets are all too common. The leaders of three Tigrayan political parties (Baitona, Third Woyane and Tigray Independence) claim that 52,000 civilians have already been killed, 4.8 million livestock were looted or killed and crops are constantly plundered or set ablaze in many parts of Tigray. According to their estimate, the lives of 8.6 million people is now endangered. The United Nations maintains that 4.5 million people are in need of humanitarian assistance.

The occupying soldiers claim that their fight is against the TPLF (or Woyane). Since 2.7 Tigrayans have voted in support of this Front at the last state election, this raises the number of the enemy to millions. Even TPLF veterans are not exempt, as the arrest of Aboy Sebhat Nega, the 87 year old veteran of the TPLF, who now faces charges before court in Addis Ababa shows. Added to this is the family members of the TPLF supporters who are targeted either out of revenge or in the pretext of obtaining information relating to the whereabout of the enemy or to know what they owned or possessed earlier. When all this is taken into consideration the number of the victimized civilian population balloons to well over 5 million. This speaks a lot about the genocidal features of a brutal war which is aimed at terrorizing and destroying a people, in part or wholly. The crimes against humanity, war crimes, ethnic cleansing and aggression which are being reported are the means used to that end.

Even if the international community manages to save 3 million out of the 4.5 million endangered people, the final body-count could be more than double the numbers of lives lost in the genocide in Rwanda. It is important to note that this is still a raging war, and that the Ethiopian government continues to drag its feet in restoring electricity and water supplies or in facilitating the delivery of humanitarian assistance freely where it is needed most. Electricity was restored in few areas only to be disrupted again and again. The limited humanitarian aid that reached Tigray after months of delays is said to have been largely looted by the soldiers or diverted to the Amhara state.

The kinds of atrocities that are reported by the media, human rights organizations, the Tigrayan sources (such as Tigray Media House) and by Eritrean opposition medias (e.g., Assena TV) are horrific. They include accounts of wanton destruction of refugee camps, villages (e.g. the 508 homes in Gijet) and farms and widespread civilian massacre in both the urban and rural places. Examples include the killing of around 1,000 killed in Mai Kadra, more than 300 in Wukro, nearly 800 church followers in Mariam Tsion church, 164 in Maria Denelt church, and 45 in the town of Edi Arbi. According to one interview which Assena TV held with one priest by phone from inside Tigray only recently 162 church followers were executed in the town of Bora, around 100 in the village of Samre mi woyni, 20 kids in Adi Gudem, 10 in Edaga Hamus and 30 Maichew. This priest also mentioned the presence of widespread looting and abuses of the villagers as routine practices.(26) Children, it is said, are killed in large numbers inside their own homes in front of their parents, and in streets, even from moving cars. There are even reports of dead bodies seen without head, bodies being dragged by cars in Western Tigray, family members that are prevented from burying decomposing corpses of family members and soldiers bragging that they do not shoot on kids below 7 years of age as if killing 8 year old kids is okay.

Women and girls are the favorite prey of the soldiers and militiamen everywhere. In particular, the wives, children and relatives of TPLF members are targeted for revenge. Rape-revenge also follows after the occupying soldiers are attacked by the Tigrayan forces in the battle fields. There are also reports which describe how the soldiers use rape as a means of ‘entertaining’ themselves, including taking sex videos. They leave behind traumatized victims, most likely infected with venereal diseases and possibly also with covid-19 virus, and with no possibility of getting medical attention. Even going to a clinic, hospital or pharmacy is risky because it is not uncommon for these victims to be abducted again from streets.

The fact that this gender-based violence is now out of control and perpetrated in horrific ways reveal the presence of sinister and evil mind, which is designed and encouraged from above since the rapists are not punished. The reason for saying this is because, by and large, these atrocities are committed mainly out hatred to demoralize the Tigrayan society at large and women in particular. After all, this is not about ‘love-making’ in any sense but to penalize mothers for having given birth to the enemy (‘Woyane’) and to damage the womb of younger girls who will produce the future enemy. Seen from this perspective, it did not come as a surprise to hear that some of these rapists have left stones, nails and soil inside the womb of their rape victims or have told their victims to be grateful for being ‘Amharized’ through rape, as one CNN reporter was told by one of the victims.

Robbery, by the armed forces and Amhara militias, is very common and committed to demand money, jewelry, mobile phones, computers and other private belongings. This takes place on streets, at homes, in shops or outside banks. According to one Tigrayan girl who managed to leave the country because of her foreign citizenship, her home was visited at four different times by soldiers, who demanded money or other valuables. In short the prevailing political disorder under occupation is best described as barbarism or utmost savagery. Having said this, it is equally important to underscore the point that there should be independent investigation to determine clearly whether all these allegations are true or not, and if they are, to establish who did what, where and when.

3.4. Outcomes and other effects

The State of Tigray is the obvious loser, for now, since it is totally devastated. However, wars have many rounds, and what looks like a loss at one point can end up being an important gain later. A case in point is the sympathy which the victimized civilians are now getting from the outside world, which can be exploited politically. This said, there is no doubt that the occupying army has already destroyed Tigray partially, and that its military strength has been degraded considerably. During the initial phase of the military operation alone, the drones of the UAE were said to have neutralized the tanks, missiles, rocket launchers, heavy artilleries and fuel storages of the Tigrayan Defense forces.

Since the first week of November, the people of Tigray have lived under a reign of terror. Although there is no military conflict in the urban centers, the city-dwellers are constantly abused by the soldiers in streets, public offices and inside their own homes. ‘Normal days’ in Tigray now resemble very much like those long before the Middle Ages: with no electricity, internet or phone services, mothers dying or developing health problems from giving birth at home without professional assistance, sick people suffering due to the absence or shortage of medical facilities, pharmacy products or shortage of food and clean water. This fact and daily news concerning the daily execution, rape, robbery,  destruction of farms and factories and abuses by soldiers and militiamen have contributed to the widespread fear and insecurity. Soldiers and police are seen everywhere, but they are not there to protect civilian life or property or to promote the interests of the state of Tigray. Their responsibility is to promote outside interests at the cost of Tigray and its residents. This is why the economic infrastructure of Tigray was looted or deliberately destroyed and Tigray’s western and southern arm and leg were amputated.

When the invading troops entered the cities and villages of Tigray, hundreds of thousands supporters of the TPLF left their homes, families, neighbors and friends in search of safety in the countryside. There, they had to beg for food and shelter or ended up staying in abandoned structures, churches, monasteries or inside school compounds. The ‘shelters’ which they occupied are ill-equipped to handle proper accommodation, with rooms, kitchens, water, beds, mattresses, blankets, clothing, functioning showers, toilets, etc. Survival under these unhealthy and primitive conditions posed a serious challenge, especially to vulnerable groups, such as, pregnant women and persons with disability or health issues. No one knows, for sure, how many people are seriously ill, injured, killed or are in the process of dying due to hunger, disease, shortages of medicines and other problems.

The economic fabrics of Tigray, which were radiating around the 5,000 or so enterprises (commercial, banking, industrial, agricultural and other business activities), are now shattered. As stated earlier, farms, factories, hospitals, pharmacies and universities are, by and large, destroyed, plundered or taken elsewhere. Schools too are mostly closed and some of them are used as an  accommodation by soldiers to shelter the internally displayed people (IDP). From western Tigray alone more than one million Tigrayans have arrived to the bigger cities, such as, Mekelle and Shire. The challenges facing these IDP is not only about how to make it for the day and beyond but also how to overcome the painful traumatic experience of the past months without any professional help. Dismayed by what is happening and the fear of what tomorrow brings, the Tigrayan youth is now forced to choose between joining the fighters or remaining in the cities where they could be killed or abused any day.

This dire situation has strengthened the drive to struggle for survival and for higher cause. This is why the insurgency is gaining momentum. There is no shortage of recruits. The Tigrayan force appears to have recuperated, and is even said to be in a position to harass the occupying forces by resorting to guerilla fighting. Most of the country-side is already under their control. Since this war is waged in their own homeland, they have the upper hand. They know the terrain and can count on the full support of the local people for information and food. However, it is their adversaries that are better equipped, including with tanks, planes, drones, ambulances and hospitals, and that are in the position of getting replacement for their losses ‘easily’, and that can count on getting external military, economic and logistic support. Because of this and the realization that giving the occupying force more time will lead to more civilian suffering and loss of property, the leaders of this struggle have no choice other than intensifying the struggle.

The Amhara State is a clear winner, so far, since its leaders have achieved their political goals, thanks to the full cooperation of Abiy Ahmed, who has acted very much like their ‘secretary general’ and Isaias Afeworki, who they consider to be one of their valuable ‘loyal and able generals’. Although they were on record in denouncing the ethnic-based federation of Ethiopia, they ended up absorbing western and southern Tigray into their state by using the ethnic factor. This illegal land grab has brought to their state important political and economic benefits. Their vast and rich rural farms, with their crops, cattle, tractors, homes and private cars, as well as the urban businesses, shops and other economically beneficial enterprises have now new Amhara owners and users. The only exception to this property arrangement is what Abiy Ahmed has made by enabling the Federal Government to take control of the enterprises and properties which formerly belonged to the State of Tigray. After these regions were placed under the control of the Amhara state, the official language (for schools, courts, the administration, etc.) was changed from Tigrigna to Amharic. It is even said that the Amhara and Eritrean leaders have come to terms on the demarcation of their new borders. Satisfied by all these gains, the Amhara leaders now claim that order and justice has already restored in the newly acquired regions and that life is back to normal. All that remains, according to them, to sanction legally what is gained by amending the constitution.

The Amhara state has also extended its jurisdiction over the Tigrayan religious entities and properties in the annexed territories. Tigrayans see this as a very sensitive matter for economic, social and historical reasons. Leaving aside what the monasteries and churches in these areas owned, their surrounding environment have always been protected from economic exploitation and from social pressure for centuries. These ‘sacred’ religious places have also served historically as custodians for the ancient Tigrayan treasures, religious writings, big golden, copper or silver crosses, unique gifts from political and religious leaders, etc. Because of this, Tigrayans consider this extension of the Amhara jurisdiction over these establishments as nothing less than the plundering of their religious properties and historical robbery, by transferring the Axumite (Tigrayan) treasures from Tigrayan hand to the Amharas. Some of the religious figures which are interviewed by Tigray Media House called this as a religious war. To strengthen this viewpoint reference is made to the number of churches and monasteries that were also attacked, the spiritual leaders and church followers that were murdered and the expulsion of monks from monasteries without any regard to the difficulties they will face in the cities after residing in monasteries for decades by pursuing a different kind of life and diets.

Placing these religious establishments under the authority of the Amhara spiritual leaders serves as a means of ensuring social control over the Coptic religious followers in Tigray. This is because the decisions which are made by the higher religious authorities in the Amhara State has to be followed at the lower level in the annexed regions of Tigray. For instance, if they classify the TPLF as anti-religion or terrorist organization, joining or supporting this front will have religious consequences, such as the prohibition of providing religious services linked to weddings, baptisms and funerals to the members of the Coptic Church.

Most of all, the Amhara leaders are now seen rejoicing because the TPLF has been ousted from power, because Tigrayans were removed from the government offices and the military, and because Tigray itself is, for all practical purposes, destroyed politically and economically. This leaves the Amhara political leaders to rest in peace, by feeling that the Tigrayan dominance of Ethiopia is now part of the recent history. This is why it is very rare to see or hear of opposition to the war in Tigray inside the Amhara state or sympathy to the sufferings of the Tigrayan civilians affected by this war. After all, the Amhara political elites have always been vocal in denouncing the Tigrayan dominance of the Ethiopian state for nearly three decades. Although this ‘dominance’ actually ended way back in the middle of 2018, the ant-Tigrayan mobilization continues to this day even after their state is destroyed. This shows that the present war itself was/is more about vendetta, and making sure on how to destroy Tigray and how to prevent Tigrayans from rising up in the future, than to remove them from power. This is also why their property continues to be plundered and all kinds of crimes are perpetrated against their women and the youth.

The Eritrean Government has still not admitted that it has intervened in this war. The reason for this could be the realization that it is illegal to invade and occupy the territory of a neighboring state or simply to avoid taking responsibility for the conduct of its soldiers. Since the TPLF launched its missiles around the airport of the Eritrean capital, Asmara, on 14 November one may wonder if the Eritrean attack was motivated by self-defense or retaliation. Yet, this was not officially stated by the Eritrean Government. This could be because the missile attacks took place more than a week after the Eritrean army has already invaded Tigray and was seen in the major cities of Tigray at the time. Furthermore no one would believe this defense when the Eritrean President had made it clear way back on February 8, 2020 and February 17, 2021, in his televised interview on Eritrean Television, that the TPLF is, as far as he was concerned, an enemy that should be confronted. As far back as 1998, the Eritrean President has even sent his army to Tigray for this purpose in the pretext of a border dispute. When he was asked, at the time, when his army will be withdrawn from the occupied border areas, his response was to say to expect this is very much like hoping that the sun will not set. 

In the abovementioned two televised interviews Isaias Afeworki gave two main reasons for why the TPLF is regarded as an enemy. The first was the obstacles which it has created in resolving the 1998 – 2000 border dispute. The second one was the ethnic-based federal formula which it has used to govern Ethiopia for the sake of ensuring its own political dominance by applying the strategy of divide and rule. This policy bothered him because it has spillover effect on Eritrea. The TPLF was also described as a poisonous political organization which was undermining the authority of the new Ethiopian leader. This, he said, leaves him with no other choice other than to defend and strengthen Abiy Ahmed. Failure to do this or to postpone it would enable the TPLF to take power in Ethiopia again.

In effect, Isaias Afeworki is here thinking very much like a concerned Ethiopian nationalist who is both willing and ready to make the required sacrifices to protect the interests of the Government of Abiy Ahmed and the Ethiopian state. This is why he also said that, as far as he was concerned, it is already “game over” for the TPLF. This was stated more than eight months before Abiy Ahmed launched his military operation.(27) The determination of the Eritrean President to defend Abiy Ahmed did worry not only the TPLF but also the other Ethiopian opposition groups, such as the Oromo groups, who do not like their government. If Isaias is ready to use force against the TPLF, they argued, he will not hesitate from doing the same to crush their struggles, by intervening in the internal affairs of their country. This was one of the reasons why Ledetu Ayelew, the leader of the opposition Ethiopian Democratic Party, called Isaias Afeworki as the number one enemy of the Ethiopian people.

Although both the Ethiopian and Eritrean Governments now deny that Eritrean soldiers are participating in the war in Tigray, Western powers and the UN have no doubt about this and have called on the Eritrean Government to withdraw its force from Tigray immediately. The interviews which were conducted by journalists and NGOs with some of the local witnesses also indicate that Eritrean soldiers are not only seen in the cities of Tigray, such as, Adwa, Humera, Adigrat, Axum, Zelambassa and even Mekelle, but that in some of these cities, e.g., in Adwa, they remained there for more than two months, very much like the forces of a legitimate government. The leaders of the Baitona party, one of the Tigrayan political parties, have gone further by stating that the dominance of the Eritrean army is so obvious, even senior Federal military officers are now seen taking orders from Eritrean generals. This suggests that the Eritrean Government is not just exercising power but even exercising sovereignty (temporarily) over Tigray, if the Ethiopian authorities that are subordinated to the Eritrean generals. This dominant role which the Eritrean President plays in shaping the political development of Tigray boosts his political image by giving the impression that he is above Abiy Ahmed when it comes to how the political developments of Tigray are now shaped.

Leaving these obvious facts aside, if Abiy Ahmed has not asked the Eritrean State to intervene militarily and the Eritrean army has occupied Tigray, as Western Powers and the UN now claim, then the norm of non-use of force in international relations (Article 2 Paragraph 4 of the UN Charter) has been violated by the Government of Isaias Afeworki, making Eritrea an aggressor. It follows, from this, that Eritrea is liable to compensate the victims for the damages caused by its army in the illegally occupied territory.

Because the leaders of the Provisional Administration of Tigray and some of the senior military leaders of the Federal army have admitted that Eritrean soldiers are not only inside Tigray but are committing atrocities, the positions of the United States and the UN on this question cannot be challenged. Proceeding from this premise, let us therefore consider what the Eritrean leader has achieved from this war. Bearing in mind what was said by the Eritrean President in his interview of February 8, 2020 and February 17, 2021, there is no doubt that this is a war of vindication for him. For one, the TPLF, his enemy is now removed from power, punished militarily and made economically bankrupt. Its supporters have been dispersed in the countryside because of fears of being arrested or killed. The Tigrayan society too has been collectively punished, and subjected to a reign of terror.

Isaias Afeworki has also achieved his two other political goals. The first one is in assisting and strengthening the Amhara state politically, socially and economically by making sure that it has snatched western and southern Tigray from the State of Tigray. The second one is punishing the 96,000 Eritrean refugees that were sheltered inside the four UN administered refugee camps for having escaped to Tigray illegally. Their camps were, by and large, destroyed or plundered. The destruction in two of these camps was so extensive they are now permanently closed. Some of the refugees that were known for being critical of their government were executed on the spot and while others, numbering in thousands, more were taken back to Eritrea for punishment. The Eritrean refugees who live in Addis Ababa and other Ethiopian cities, numbering well over one hundred thousand, are closely monitored, harassed and some of them are rounded up by the Government of Abiy Ahmed to please Isaias Afeworki.

If the information which is circulating on Ethiopian and Eritrean opposition media circles is to be believed, Isaias Afeworki has also benefited a lot economically. These reports claim that Abiy Ahmed has promised to pay the Eritrean leader US $1 billion, in cash and in kind, for the military cooperation, and assurances not to hinder his soldiers when they plunder Tigray. Above all, Isaias has also been allowed to take the contested border areas along the frontiers of Tigray as he sees fit. Since these promises, if true, were not in written forms, they can easily be contested by the future Ethiopian rulers once Abiy leaves office.

The benefits which the Eritrean President has secured from this war are not necessarily benefits to the Eritrean society or to their country. Eritreans parents are very worried about what will happen to their sons and daughters in Tigray. They know too well that this is not a trip for tourism, for education or for work. It is to kill neighboring human beings for causes which they do not believe in or even know clearly and to be killed or returned back, most probably, injured and traumatized. Since the government has not formally acknowledged that it has militarily intervened, it does not inform the citizens about how many soldiers were killed, injured or captured. The death of the senior military leaders is reported regularly on Eritrean TV since it is important to celebrate their lives when their funeral are arranged. But their death is always attributed to ‘health’ issues.

Eritreans also resent hearing that their soldiers are implicated in the kind of horrific crimes that are committed in Tigray. The fact that the Eritrean refugees inside Tigray have been victimized and that those in the different cities of Ethiopia are harassed and insecure is also a special concern. Since both the Ethiopian and Eritrean Governments see these Eritrean refugees as security risk, the danger that they will be returned back to Eritrea by force is real and worrisome. Again, the destruction and looting of the Tigrayan monasteries and places of worshiping and the massacre of the religious leaders are also not something to be proud of. Most Eritreans see this if they were done inside Eritrea.

Last, but less important, most Eritreans do not see why a major war like this, which is intended to promote the political, economic and social interests of the Amhara state by sacrificing Eritrean soldiers at the expense of the state of Tigray benefits Eritrea. After all, it was and still is the Tigrayans who have defended the independence of Eritrea, and not the Amhara State and its leaders. In fact, one of the reasons why the latter wanted to punish the TPLF and its supporters was because the role they played in facilitating and recognizing the separation of Eritrea from Ethiopia. The Amhara leaders still call for the return of Eritrea to Ethiopia and speak of Isaias Afeworki highly as if he has assured them that their wishes will be realized shortly.

It is because of all these that the Eritrean diaspora is seen in large numbers joining hands with Tigrayans when protests are held in the Western cities calling for an end to the on-going political adventure. As they see it, this war is aimed not only at destroying the State of Tigray and Tigrayans, but Eritreans and their state as well. The longer it continues, the more Eritrea will be bleed economically and militarily. By overstretching and exhausting itself the Eritrean defense force has already made Eritrea itself vulnerable for external attack. The political image and prestige of the military has been stained by the kinds of crimes that are committed in Tigray. This alone will discourage the Eritrean youth to serve in the military in the future. Descent citizens prefer to pursue other careers that will not require them to engage in criminal conducts.

It is easy to dismiss the above conclusion by underscoring the point that Eritreans have not been seen expressing opposition to the Eritrean involvement such as in the form of street protests in Eritrea or by using the media. This, however, is because there is neither independent media nor any tolerance for opposing the Eritrean government. Ever since the country became independent, in 1993, this state has been ruled by a despotic and repressive regime which does not even use constitution, parliament, an independent judiciary, budget or even pretend to be accountable. It is not without any reason that this state is called as “The North Korea of Africa”. Those who called for the establishment of democratic form of governance, political parties, free press etc. in the 1990s, as well as those who opposed the 1998 and 2000 border wars are all still in jail, without court decisions. The whereabout of most of these prisoners still remains to be unknown.  A person who kills and opposes the regime get more or less the same kind of punishment, life imprisonment.

When it is obvious that Eritreans are unable to speak out against their government inside their own country, it will be unfair to blame them for not opposing the war in Tigray or the use of Eritrean soldiers in that war. It is common to hear Tigrayans as Eritreans ‘why are your Eritrean soldiers so cruel towards us when we speak the same language, cultures and religion’. To this, Eritreans smile and respond by saying “Sorry to see that you are victimized by our soldiers, but this is what they have been doing against their own people in Eritrea for three decades, and why they are also going after the 96,000 Eritrean refugees in the refugee camps in Tigray. Those who do not comply with the orders that are given to them will be killed. Apparently, we have common enemy, the same cruel regime.”

The Federal Government has benefited from this war in many ways. Since Prime Minister Abiy Ahmed lacked competence, experience and vision on how to move the country forward, the simplest way of deflecting public attention from the failure of his government was to rely on the ‘Tigrayan dominance’ rhetoric and their ‘bad record’. The statements which he was making before the parliament and that were aired in the tightly controlled media, including by strengthening them with ‘documentary programs’, were mostly used to galvanize public support for this rhetoric and to enlist support for the war. This proved to be an effective strategy. This is why three months after this war was launched, street protests against the war is unheard of.

Abiy Ahmed has clearly benefited personally from this war since it has led to the removal of the TPLF from power and he has established a new Provisional Administration for Tigray which he controls. It is important to recall that in the last state election, which was arranged by the TPLF in defiance of the postponed national election, this Front was able to secure around 97% of the Tigrayan vote. This shows that Abiy would have been unable to get any support inside Tigray if the national election was not postponed in the pretext of Covid-19. Further, since the TPLF and its allies were in power in the central Government of EPDRF for more than a quarter of a century, this Front would have posed a serious challenge to Abiy in the nation-wide election as well. In light of this removing the TPLF by force clearly enabled Abiy to promote his own interest.

Whether Abiy Ahmed would last long as a Prime Minister is another question since the war in Tigray has discredited him globally. His description of this war as  a ‘military operation’ which was launched to ensure law and order is no longer taken seriously by most Ethiopians. If that was done for the sake of ‘law and order’ most Ethiopians will now wonder why those that are committing serious atrocities against the civilians inside Tigray or who are destroying religious sites, factories and hospitals are not made to account? The Ethiopian public knows too well that Tigray, which was the most stable and peaceful state in the country prior to this war, is now lawless and totally destabilized. More and more human rights activists, who see this war as genocidal, are now openly calling for Abiy Ahmed to step down and to account for the international crimes which he is responsible for. The day a special UN tribunal or the International Criminal Court issues warrant against him, Ethiopians will betray him and they may not vote for him in the upcoming national election in June. When that happens, all the political gains which Abiy personally secured by launching this war would be washed away.

Abiy has officially claimed, on November 28, that the Federal Government has defeated the TPLF and is in full control of the territory of Tigray. He has stated that his government is closely monitoring the activities of the Amhara militias in western and southern Tigray. If this is true, then the regime is fully responsible for what the Amhara militias and police forces have done or are doing there. The Ethiopian constitution makes the government responsible to protect life and property, to punish criminal conducts and to provide justice to the victims. If this government is serious about ensuring respect for law and order and there are courts to apply laws, the victimized Tigrayans should be compensated for their losses and sufferings. This is also required by international human rights instruments which the Ethiopian state has ratified, such as the covenant on civil and political rights (Article 2{3}), the convention on the elimination of discrimination against women (Article 2{c}} and the convention against torture, cruel, inhuman and degrading treatment (Article 12 & 13). The fact that the government is taking ‘military or policing operations’ does not entitle militias to murder and dislocate civilians or loot and destroy their properties. Nor does this operation relieve the government itself from discharging its responsibilities to combat such kinds of activities. Even if the military operation was to be formally acknowledged as war, which is not, the rules of international humanitarian law prohibit the killing of civilians, ethnic cleansing and vandalism.

The same can be said regarding the responsibility of the Federal Government in relation to the wrongful conduct of the Eritrean soldiers. The presence of these foreign soldiers is not acknowledged probably to escape from the kinds of crimes which they are committing. However, reports after reports claim that the Federal and Eritrean soldiers are seen operating side by side. Senior Ethiopian authorities are heard blaming Eritrean soldiers for looting of property and widespread executions. The Federal Government should have prevented all these acts or end these acts when it this is known. By not doing this the Federal Government acted as an accomplice. The international law rules relating the “Responsibility of States for internationally wrongful acts”, as recognized in article 16 of UN General Assembly resolution 56/83 of January 28, 2002 maintains that:

“A State which aids or assists another State in the commission of an internationally wrongful act by the latter is internationally responsible for doing so if: (a) That State does so with knowledge of the circumstances of the internationally wrongful act; and (b) The act would be internationally wrongful if committed by that State.”

This does not relieve these soldiers from accountability for their own roles. This principle also applies to the members of the Amhara militia, Federal army or the Tigrayan force. Leaving these questions relating to legal responsibility aside, there is no doubt that the Ethiopian nation as such is a loser in this war, since it has been damaged militarily, economically, socially and politically. The day Abiy Ahmed justified the military offensive, on November 4, by claiming that the TPLF has attacked the Northern Defense Forces he acknowledged that this attack enabled the TPLF to control more than half of the Ethiopian military hardware. The day he announced the defeat of the TPLF, on November 28, he stated that the Federal Forces have destroyed 99% of the military targets of the TPLF. If both these claims are true, the Ethiopian military must now be very weak. This is even without considering the military damages sustained after December on both sides. It is no wonder the Sudanese army was able to take more than 40 kilometers of the rich agricultural border land facing the Amhara state which was in dispute between the two countries for decades. This is also why the Ethiopian Government is still seeking  diplomatic solution to the dispute with Sudan when its sovereignty is challenged militarily. Apparently, the country is too weak militarily to face the Sudanese army since its army finds itself in quagmire in Tigray.

The above military and political weaknesses of the Ethiopian regime and the cruel and immoral policy that is pursued in Tigray, including by allowing neighboring Eritrea to terrorize its own citizens has now damaged the country diplomatically. Sudan is more or less at war with Ethiopia. Relation with Kenya is the lowest it has even been. Lately, the African Union has also been moving its meetings from its headquarter, in Addis Ababa, to other African cities often in the pretext of Covid-19.

Inside Ethiopia too, social relation continues to be poisoned with hate speech and ethnic mobilization growing. The repression and atrocities which are committed against innocent civilians in Tigray themselves reveal moral decadence, with rape, vandalism, destruction and arbitrary killings inside Tigray which are condemned internationally are tolerated or ignored by Abiy Ahmed and the constitutional protection becoming meaningless. When respect for the rule of law is sacrificed in Tigray and the regime shows no interest to protect the innocent civilians from armed soldiers, the other citizens loss confidence on their government and start to devise their own way protecting their safety and interest in case the political chaos spreads to their regions, and that leads to suspicion, tension, rivalry and insecurity.

The war in Tigray is also unsustainable economically since it depletes the badly needed resources and finances which could have been used for progress and development. Foreign investment and tourism have decreased considerably, the military expenditures and cost of living have increased, the government is getting less and less revenues from taxes now that the economic fabrics of Tigray are destroyed and the government is facing shortage of foreign currency. To make things worse, the European Union and the United States are contemplating to impose sanctions because of the policies used in Tigray and the World Bank and the IMF are not eager to extend loans. Even before this war, the country ranked 173rd out of 189 States under the human development Index used by the United Nations Development Programme.

4. The United Nations

According to the preambles of the Charter of the United Nations, this organization was established, in 1945, “to save succeeding generations from the scourge of war … to reaffirm faith in fundamental human rights, in the dignity and worth of the human person …[and] to establish conditions under which justice and respect for the obligations arising from treaties and other sources of international law can be maintained.” Its purposes, as stipulated in Article 1 Paragraph 3 of this Charter include, achieving “international co-operation in solving international problems of …humanitarian character, and in promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language, or religion”.  Paragraph 2 of this Article underscores further that the U.N. is committed to the development of “friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples, and to take other appropriate measures to strengthen universal peace”.

The war in Tigray provides a classical example of the type of situation which the UN was meant to address. Successive generations of Tigrayans have been exposed to the scourge of war, the last one being the genocidal war which the Ethiopian Socialist Government of  Mengistu Haile Mariam (the Derg) pursued in the 1970s and 1980s. This regime was  known for carrying out mass murder and endless abuses on human dignity and worth throughout its rule. However, the atrocities which are now committed by the current regime of Ethiopia are much more serious and systematic and are carried out in persistent ways. As mentioned earlier widespread mass executions, attacks on civilian properties, including on sacred places, violence against women, children, refugees and exposing civilians to inhuman and degrading treatment are all carried out in consistent ways everywhere. The Derg was evil and ruthless but it did not engage in practices requiring human corpse to be eaten by hyenas , women to be raped by their families or placing foreign objects, such as nails and sones to be placed on the womb of women as they are seen now. Hunger was also used as a weapon in Tigray, but not by disrupting electricity and water supplies for several months and by destroying and plundering hospitals and clinics.

That Abiy Ahmed would most resort to the military means of responding to the defiance of the Tigrayan administration to proceed with its own state election when the national election was postponed was expected, but not by inviting foreign states and to destroy the state of Tigray. The election which was arranged in Tigray was not without constitutional justifications since this law guarantees the people of Tigray the right to self-determination (Article 39) and views them as sovereign (Paragraph 1 of Article 8). This being the case, it is difficult to see the current war as a retaliatory measure for holding an ‘illegal’ state election in Tigray. If that was the case how did western and southern Tigray end up under the control of the Amhara state and what are Eritrean soldiers doing in large parts of Tigray including in most of the bigger cities?

The official description of what is going on inside Tigray as a policing or military ‘operation’ which was prompted by the November 4 attack on the Northern Defense Forces by the TPLF distorts the reality. What is seen is a total war which was well designed and coordinated, including by soliciting the participation of foreign political forces, Eritreans, Somali and the UAE. The timing that was used to launch this military operation was carefully chosen to fit the U.S. presidential election, when the global media turns attention to the coverage of the U.S. Presidential election. To make sure that this global media will not notice what is done in Tigray, the latter too was cut off from the external world, for several months, by disrupting electricity, phone and the internet. As if this is not bad enough, foreign journalists were forbidden from entering this state humanitarian agencies too were prevented from delivering food and medicine. The Ethiopian Government has also refused to accept the establishment of an independent investigating body to examine if serious international crimes were committed. All these reveals that the Government was trying to cover the suspicion which outside observers had about the genocidal war which was in progress and serious international crimes that were committed to achieve this goal.

Genocide, war crimes, crime against humanity and aggression are all punishable crimes under the statute of the International Criminal Court. Genocide is defined in Article 6 of this statute as acts that are committed with “an intent to destroy, in whole or in part, a national, ethnical, racial or religious group”, such as, by killing or inflicting deliberately “on the group conditions of life calculated to bring about its physical destruction in whole or in part.” Examples of the crimes against humanity which are mentioned in this statute include, the “widespread or systematic attack directed against any civilian population”, murder, rape and enforced disappearance of persons. Added to this is “the deprivation of access to food and medicine, calculated to bring about the destruction of part of a population” (art. 7). War crimes, according to this instrument include, intentional killing, the “extensive destruction and appropriation of property “attacks against civilian objects” bombarding towns, villages, dwellings, the “deportation or transfer of all or parts of the population of the occupied territory within or outside this territory”, deliberate “attacks against buildings dedicated to religion, education, art … historic monuments, hospitals” rape, …and any other form of sexual violence”. (art. 8). The forcible transfer of population from their territories (ethnic cleansing) falls under the categories of both crime against humanity (art. 7(1)) and war crime [art. 8(2)(a)(viii)]. Aggression is defined in article 9 of this Statute and includes:

“(a) The invasion or attack by the armed forces of a State of the territory of another State, or any military occupation, however temporary …

(b) Bombardment by the armed forces of a State against the territory of another State

(e) The use of armed forces of one State which are within the territory of another State with the agreement of the receiving State, in contravention of the conditions provided …

(f) The action of a State in allowing its territory, which it has placed at the disposal of another State, to be used by that other State for perpetrating an act of aggression against a third State.”

Judging from the reports that are now circulating, most of the abovementioned crimes were committed and continue to be committed in this war as explained in section 3.3 as well as in the present section. The widespread execution of civilians, the destruction of their crops, shops and health centers, the use of hunger as weapon, the manner in which rape was used to demoralize the community and the forcible transfer of Tigrayans from western and southern Tigray all reveal the presence of ‘an intent’ destroy this people as understood in the genocide convention.

Seen from this angle, it did not come as a surprise that the leaders of the U.S., U.K., and E.U., as well as the UN and many human rights organizations have all denounced the killings of civilians, the plundering and destructions of civilian properties since they are all prohibited crimes by international humanitarian rules. This is also why they have repeatedly appealed to the Ethiopian leader to put an end to this war, and asked for the “immediate” withdrawal of Eritrean soldiers from Tigray. The latter demand also suggests an acknowledgement of the presence of an illegal intervention and an aggression since the Ethiopian Government has not even formally asked for Eritrean support. 

The magnitude and consequences of this war are still not widely appreciated by the political world because of the blackout of the past three months or so. In their open letter to Abiy Ahmed, four former American Ambassadors to Ethiopia have expressed concern over the fact that “2.2 million people have been displaced, and 4.5 million people need emergency assistance, many of whom are without adequate food.” (28) This is a staggering figure, considering that the population of Tigray is around 8 million. It means that the majority of the Tigrayan population is already exposed to hunger in less than four months. It is true that food supplies in Tigray were already at risk before the start of the war, as a result of locust plague. But it is the war itself and the deliberate policy of Abiy Ahmed to starve the people of Tigray which has compounded the humanitarian problem. The fact that weaponizing hunger is formally condemned by the international community, as a crime, means nothing to the Ethiopian regime since it views international law as toothless.

The reasons for claiming that hunger is weaponized in this case are many. The first is the refusal of the regime of Abiy Ahmed to open its borders to enable international humanitarian organizations to deliver emergency food aid. If this was not because of the wish to see Tigrayans starve to death what other reasons can there? Yes, the regime made reference to ‘sovereignty’ and ‘territorial integrity’ as a pretext, but this makes no sense. How can providing access to aid agencies to feed starving people threaten sovereignty? It is allowing foreign soldiers, such as those from Eritrea and Somalia, or the drone attacks of the UAE, which threatens sovereignty and violates the territorial integrity of the Ethiopian state. Even an elementary student would see this point. The foreign forces that are inside Tigray are not seen promoting the security of the people or their property or ensuring law and order, unless ‘law and order’ is understood as one which gives these soldiers the ‘right to rape and plunder and terrorise civilians’. The Federal Constitution prohibits such acts.

Second, the regime of Abiy Ahmed must know that hunger follows when electricity, water and bank services are disrupted for months, when farms and their crops are destroyed and markets collapse, when shops, hospitals are looted, and people are not paid for more than three months. This is precisely what is now happening inside Tigray. Despite this there is hardly anything that the Government of Abiy Ahmed had done to meet the challenges, which are caused by its soldiers other than blaming the TPLF for everything. If the TPLF was defeated at the end of November, as Abiy Ahmed officially told his Parliament on November 30, how can the TPLF be blamed for all the problems in its absence? The fact remains that even the Federal Government is said to be unable to control what the Eritrean soldiers, the Amhara militias and its own soldiers are doing now.

The third reason for claiming that the regime is weaponizing hunger is the selection of November 4 as the date for launching the military operation. Most Tigrayans rely on teff, a fine grain, for their daily food. The harvest of wheat, barley and teff usually “start in the last week of October, while the harvest of sorghum, finger millet and maize (the latter being of minor significance) is expected to take place from November through January.” (29) It is legitimate to ask whether it was sheer coincidence that military operations were launched at the start of the teff harvest, or whether this decision was taken intentionally, in order to disrupt the harvest. The destruction of farms and crops and disruption of the market did create serious problems for the population in the months following this military offensive.

If the military offensive was delayed by one or two months the farmers of Tigray would have been able to harvest their crops and earn an income by selling their produce. Traders would have earned money in the process. The consumers too would have stored the food to tide them over during the war. By launching the war just prior to harvest, the Government of Abiy Ahmed intentionally wrecked the flows of food and income, exposing the population to hunger.

The fourth reason is the government’s own reluctance to come to the rescue of the farmers of Tigray when they were devastated by swarms of locusts in the weeks prior to the war. This is in stark contrast to the prompt assistance provided to those affected farmers in neighboring states. Even the drones that were donated by the Tigrayan diaspora from Israel to combat the locust invasion, and the helicopter which one person donated for this purpose were confiscated on security grounds. The fact that the National Bank of the country has frozen all the bank accounts inside Tigray too shows the presence of an intention to prevent people from using their savings in the banks when these banks open (i.e., before they were closed). Taking all this evidence together, there are compelling reasons for maintaining that the Government of Abiy Ahmed did weaponize hunger in the present war in Tigray.(30)

When around 8 million people are facing problems of the kind described above and their government is not willing or unable to protect them, the UN should have stepped in and protected them. The Secretary General of this organization was expected to “bring to the attention of the Security Council any matter which in his opinion may threaten the maintenance of international peace and security”, as expected by Article 99 (emphasis added). Operative Paragraph 11 of Security Council resolution 2417 even required the Secretary General explicitly “to provide information on the humanitarian situation and response” so that the Council will be able to take measures including by considering “sanction measures” against “individuals or entities obstructing the delivery of humanitarian assistance, or access to, or distribution of, humanitarian assistance” (Operative Paragraph 9). Yet, two months after Secretary General Antonio Guterres proceeded by cooperating with the Ethiopian Government the latter is still seen dragging his feet. 

Antonio Guterres was getting information about the dangerous humanitarian crisis from the different humanitarian organizations and UN offices were expressing concern about this problem. He knew too well that this looming humanitarian crisis is directly linked to the disruption of normal life, especially due to power shortage and the difficulties of accessing clean water, banking, marketing and medical services. Yet, even when it was obvious that Ethiopian government was hindering humanitarian agencies from delivering assistance and that it was weaponizing hunger, the Secretary General chose to continue with the strategy of appealing to Abiy Ahmed to cooperate rather than pressuring him. He justified this approach by underscoring the point that it was much better “to establish with the Ethiopian Government a functional relationship.”(31)

Secretary General Antonio Guterres was also asked about the Eritrean involvement in this civil war, since the presence of external military involvement clearly threatens international peace and security. Yet, here too Guterres bushed off this claim. “We have no proof of the presence of Eritrean troops inside Ethiopia”, he said and underscored the point that he was assured by the Ethiopian Prime Minister that this not the case.(32) If Abiy has assured the Secretary General that Eritrean troops were not invited, and there are, on the other side, serious allegations and concerns accusing the Eritrean Government for being involved militarily, the Secretary General should have raised this matter before the Security Council, or investigated this matter. Claims which concern the presence of external aggression and which threaten state sovereignty and territorial integrity should not be seen lightly. 

This is not to discredit the UN Secretary General without credible reasons but to face the truth. The UN should be appreciated for the roles it has played in the past but should also be criticized when mistakes are seen. This organization has developed human rights instruments and the mechanisms to be used for monitoring on how states are complying with the instruments they have ratified. Examples of the latter includes the use of country rapporteurs, thematic rapporteurs, working groups (such as those who examine situations revealing massive and systematic violations of human rights) and the Universal Periodic Review of the Human Rights Council. Another important milestone in this respect was the decision in 2005 to adopt the doctrine known as “International Responsibility to Protect.”  As summed up by the Office on Genocide Prevention and the Responsibility to Protect::

“The responsibility to protect embodies a political commitment to end the worst forms of violence and persecution. It seeks to narrow the gap between Member States’ pre-existing obligations under international humanitarian and human rights law and the reality faced by populations at risk of genocide, war crimes, ethnic cleansing and crimes against humanity.”(33)

Likewise, the adoption of resolution 2417 by Security Council was another significant achievement made by the UN made when it comes to devising when civilians should be protected in times of armed conflicts. This resolution condemns “the unlawful denial of such access and depriving civilians of objects indispensable to their survival — including willfully impeding relief supply and access for responses to conflict.”  According to operative paragraph 4 of this resolution, the parties to armed conflicts are required to respect the obligations recognized under international humanitarian law and “to cooperate fully with the United Nations Humanitarian Coordinator and United Nations agencies in providing such access”. If they fail to do so, the matter should be brought to the attention of the Security Council since this amounts to “a threat to international peace and security” deserving the adoption of “appropriate steps”. Here too they UN has not taken a firm stand in protecting the people of Tigray when the Government of Abiy Ahmed has shown its defiance, for several months, to the calls by the different UN agencies, such as OCHA, UNICEF, UNHCR and WFP to provide unfettered humanitarian corridor.

In short, although the UN has made considerable progress in developing human rights instruments and the mechanisms that should be used to apply them when it comes to responding to the challenges posed by the war in Tigray, what was done in practice was not praiseworthy, at least this far, other than the courageous steps that were taken by some of the responsible leaders of offices such as the UNHCR, UNICEF, OCHA and the Special Representative of the Secretary-General on Sexual Violence in Conflict. Nor was the doctrine of responsibility to protect (R2P) invoked by the Security Council to save the eight million endangered Tigrayans when they were abandoned by their own country and peoples. The Ethiopian Government is unable and unwilling to protect them.

Which way the UN will proceed in the days and months is hard to tell. Hopefully, the Security Council will call for a cease-fire, send peacekeeping force to ensure this as well as to protect the delivery of humanitarian assistance, establish an independent commission to investigate the international crimes that were committed and to make sure that those that have committed them will be accountable for their did. There are promising signs that this tract will be followed. The Biden Administration appears to be unwilling to accept the military gains made through ethnic cleansing. This is implicit from its Press Release which has called for:

“The immediate withdrawal of Eritrean forces and Amhara regional forces from Tigray are essential first steps.  They should be accompanied by unilateral declarations of cessation of hostilities by all parties to the conflict and a commitment to permit unhindered delivery of assistance to those in Tigray. The United States is committed to working with the international community to achieve these goals.” (34)

Above all, the UN is expected to find lasting solution to the conflict itself. The challenges is by no means easy. This organization should not proceed by disregarding its values and purposes which are mentioned in its Charter – i.e., democracy, human rights, law and order, and the principle of self-determination. These values are affirmed in the Ethiopian Constitution. Because the present humanitarian crisis is man-made, it will be difficult to provide humanitarian assistance without arranging cease-fire. That will, in turn, requires sending a UN peacekeeping force to monitor the cease-fire and protect the delivery of the humanitarian assistance. The cease-fire should be linked to the immediate withdrawal the occupying forces. Otherwise, these forces will take the humanitarian assistance leaving the victims starved. This makes the withdrawal of Eritrean soldiers and the Amhara militias a pre-requisite for extending humanitarian assistance. The failure to expel these forces will also amount to endorsing the ethnic cleansing in western and southern Tigray and the Eritrean aggression.

Requiring the withdrawal of the Amhara forces from Tigray will be met by opposition on the grounds of meddling in internal affairs. According to the Amhara officials, western and southern Tigray were incorporated into Tigray by the TPLF arbitrarily in 1991. Prior to that, they argue, these regions belonged to the Amhara. One way of resolving this controversy would be to allow the inhabitants to have a say in choosing between the states of Amhara or Tigray. However, even this too can be criticized for being illegitimate since this matter was settled formally when the Federal Constitution was approved in 1994. Even the Derg administration was considering the people of these regions as Tigrayans.

If the UN requires the withdrawal of the Federal forces, and the current Provisional Administration and their replacement by the previous TPLF administration, militia and police force this will be opposed by the regime of Abiy Ahmed as meddling in internal matters. On the other hand, if it fails to do this, this will signal that it is proceeding by disregarding democracy and the Ethiopian Federal Constitution. This is because the current Provisional Administrative Authority in Tigray was not elected by the people of Tigray. Nor is Abiy Ahmed himself, for that matter. The TPLF Government, which was elected by Tigrayans was removed militarily. Since the Federal Constitution protects the sovereignty of the people of Tigray, and the right to self-government, the UN cannot tell this people to accept the current Provisional Administration or to choose another government when they have already chosen one.

There will be states that will defend the positions of the Government of Abiy Ahmed, by invoking for respect for state sovereignty and non-intervention in internal affairs. After all, States, especially the major powers, have important economic, political and other interests in Ethiopia. Yet, to say that Abiy Ahmed Ali should be left alone to complete his genocidal policies would be morally and politically damaging to those who support this. Legally too it is difficult to defend the ‘internal affairs’ clause in this case when serious international crimes including genocide and ethnic cleansing are pursued. As stated above, the Ethiopian Constitution, in Paragraph 1 of Article 8 makes  “the peoples of Ethiopia” sovereign  and guarantees them theunconditional right to self- determination, including the right to secession” [Article 39 (1)]. If the rules governing sovereignty and territorial integrity are to be invoked they actually strengthen the case of Tigray.

The pattern of human rights abuses that were/are committed inside Tigray, the violations of international humanitarian rules and the weaponization of hunger have clearly created a situation which the UN cannot ignore. This organization has a long record of confronting these kinds of situations by disregarding the clause on ‘internal matters’, e.g. when it relies on its 1503 procedure or on Security Council resolution 2417 of 2018. The situation inside Tigray also reveals an internationalized conflict since neighboring Eritrea is involved. This fact the reliance on ethnic cleansing have brought about a political question, namely how to resolve “the question of Tigray”.

Sovereignty clearly shields states from ‘external intervention’, but only for those who respect the norms of international law. According to Paragraph seven of Principle Five of the UN Declaration on Friendly Relations (General Assembly resolution 2625 (XXV) of 1970) this implies being “possessed of a government representing the whole people belonging to the territory without distinction”. The people of Tigray are not represented in the Ethiopian Government. As Mick Wallace stated, only from the military 17,000 Tigrayans have been removed in the past few months.(35) The number of Tigrayans that were removed from the Federal and local administration is much higher than that. The TPLF administration itself has been replaced by one which is controlled from Addis Ababa. Nor are Tigrayans represented in the Ethiopian Parliament. Again, the electoral board has made it clear that the national election which will be held this summer will not be held in Tigray. This means that Tigray will be excluded from parliamentary representation for another five years.

Thus, the day the people of Tigray decides to establish separate state, it will be difficult for the Government of Abiy Ahmed to challenge the legitimacy of this demand. The right of this people to secede from the Ethiopian state is clearly recognized in Article 39 of the Constitution. True, international law protects the ‘sovereignty’, ‘national unity’ and ‘territorial integrity’ of independent states. But the people of Tigray, which is ‘sovereign’ according to the Federal constitution has been excluded from power (sovereignty). Nor is it viewed by the regime as an integral part of the Ethiopian nation as its exclusion from power reveals and the regime is seen using hunger as a weapon and refusing to extend protection when the residents are exposed to serious international crimes. The rule on ‘territorial integrity’ cannot be invoked while at the same time placing the territory under the control of foreign state (Eritrea) for purposes of terrorizing the inhabitants. Abiy Ahmed Ali cannot have it both ways: i.e., to benefit from the principle of state sovereignty, territorial integrity and national unity, while at the same time destroying the state and people of Tigray.  He should choose between loosing this state or behaving with international norms. The latter do not recognize the rights of states to commit genocide.

If Tigray was inside Europe, NATO would have resolved this question as it did in Kosovo, i.e., by protecting the people and facilitating its independence by involving the UN. Again, if neighboring Sudan was as powerful as India, and eager in protecting the people of Tigray, it would have intervened militarily to facilitate its independence just as India did for Bangladesh. Unfortunately, Tigray is lonely and surrounded by neighbors that are determined to crush it militarily even if this takes years and the total destruction of its people. The longer this war continues, the more atrocities will be committed and the louder the voice calling independence will be . There is a lot of talk already about the determination to create separate independent state. Some are even seen debating what its appropriate name should be, i.e. whether it will be Tigray, one of its old names Axum or Habesha or simply Northern Ethiopia or Ag’azi.

The more the UN avoids to face the political crisis in Tigray, the more its credibility will come to be questioned. This is not simply because this organization is required to address serious problems like those seen in Tigray by its own Charter, but also because the 1948  convention against genocide too requires it to “prevent” and “punish” the kinds of serious crimes that have been committed in Tigray daily during the past few months. The day the UN takes up this case seriously, it will be difficult to imagine how the political leaders that are responsible for all the war crimes, the crimes against humanity, ethnic cleansing and the aggression that are seen in Tigray will escape from facing an international tribunal.

Leaving this aside, the other thorny problem which the UN will have to resolve will be how to ensure lasting peace in Tigray after arranging cease fire. One way of doing this would be to encourage the parties to the conflict to resolve their differences by stimulating negotiated settlement. The approach which the UN Security Council used to resolve the North-South conflict in neighboring Sudan, based on the 2005 Nairobi Comprehensive Peace Agreement, could serve as a model for going forward. There, the principle of self-determination was deemed to be necessary for ending the war and for strengthening peace, although the Sudanese constitution did not guarantee the right to self-determination. Any attempt to resolve the question of Tigray outside this framework would be unjust and a violation of Article 39 of the Ethiopian Constitution which guarantees this right. Such a move will also disregard the purpose of UN Charter on the “equal rights and self-determination of peoples” (Paragraph 2 of Article 1, emphasis added). Further, imposing a political formula which the people of Tigray has not asked for will be impractical and violate Paragraph 7 of Article 2 of the UN Charter which prohibits this organization from intervening “in matters which are essentially within the domestic jurisdiction.” This is why the reliance on the Ethiopian Constitution and the UN Charter principle on self-determination would be the only legitimate way of resolving the question of Tigray.

*About the author and this work

Eyassu Gayim, Juris Doctor, Docent in international law.

Between 2012 and 2019 this author was teaching at the School of Global Studies at the University of Gothenburg, in Sweden (as an Associate Professor). Prior to that he worked for different universities in Finland, Sweden and in Southern California. Currently, he is affiliated with the University of California in Los Angeles (UCLA) and San Diego State University (SDSU).

The reader of this paper might get the impression that this work was probably written by a person from Tigray or commissioned by the Tigrayan People’s Liberation Front (TPLF). Neither is the case. The author was born in Addis Ababa and lived there until 1977. Since then, he was in the Horn of Africa only once, and for about one month in the middle of the 1990s. He has never had any affiliation whatsoever with the TPLF, and never lived in Tigray or even saw that state, regrettably, other than the bus routes between the Ethiopian and Eritrean capitals. What motivated this paper is simply the calls of humanity, the refusal to look the other way around when horrendous crimes like the ones seen today in Tigray are committed against millions of human beings in the pretext of ensuring ‘law and order’.

Endnotes

1. AFP News Agency, November 12, 2020 in Ethiopian PM Abiy Ahmed justifies Tigray military operation | AFP – YouTube

2. Human Rights Watch, 11 February 2021, https://www.hrw.org/news/2021/02/11/ethiopia-unlawful-shelling-tigray-urban-areas  See further Tigray Media House February 27, 2021, https://www.youtube.com/watch?v=N3Gchbap5kA; Asena TV February 25, 2021, https://www.youtube.com/watch?v=ougTZaHOUzs; Ethio Forum Febuary 5, 2021, https://www.youtube.com/watch?v=7U9vuN43-zs; Awlo Media, February 19, https://www.youtube.com/watch?v=J4FylsbjGv4; and Andafta Media. Feb 2, 2021, https://www.youtube.com/watch?v=teffLbw7ISc   See further note 26.

3. United Nations TV, Tigray Update, February 5, 2021, GENEVA / TIGRAY UPDATE | United Nations UN Audiovisual Library (unmultimedia.org).

4. Ibid.

5. UNICEF, “Children in Tigray in acute need of protection and assistance” 12 February, 2021 in https://www.unicef.org/press-releases/children-tigray-acute-need-protection-and-assistance.

6. Ethiopian Forces Admitting Rape in the Tigray Capital, Mekelle, 9 January, Ethiopian Forces Admitting Rape in the Tigray Capital, Mekele. – YouTube

7. United Nations Office of the Special Representative of the Secretary-General on Sexual Violence in Conflict, in United Nations Special Representative of the Secretary-General on Sexual Violence in Conflict, Ms. Pramila Patten, urges all parties to prohibit the use of sexual violence and cease hostilities in the Tigray region of Ethiopia – ; and also Michael Georgy, Reuters, “’Choose – I kill you or rape you’: abuse accusations surge in Ethiopia’s war.

8. Statement attributed to the UN High Commissioner for Refugees, Filippo Grandi on the situation of Eritrean Refugees in Ethiopian’s Tigray Region, 14 January 2021, in UNHCR – Statement attributable to the UN High Commissioner for Refugees Filippo Grandi on the situation of Eritrean refugees in Ethiopia’s Tigray region.

9. United Nations TV, Tigray Update, February 5, 2021, GENEVA / TIGRAY UPDATE | United Nations UN Audiovisual Library (unmultimedia.org).

10. Press release, Department of State, February 27, 2021, https://www.state.gov/atrocities-in-ethiopias-tigray-region/

11. “EU envoy warns Ethiopia Tigray crisis ‘out of control’, com with AFP, February 23, 2021, https://www.euractiv.com/section/global-europe/news/eu-envoy-warns-ethiopia-tigray-crisis-out-of-control/

12. Ethiopia: Declaration by the High Representative on behalf of the European Union, https://www.consilium.europa.eu/en/press/press-releases/2020/12/25/ethiopia-declaration-by-the-high-representative-on-behalf-of-the-european-union/

13. Memorial service 01-23-2021, https://www.youtube.com/watch?v=sNZJUqumDj0

14. Lords raise concerns over conflict in Tigray | House of Lords | 24 November 2020 – Bing video

15. Ibid.

16. Mick Wallace on Twitter: “#Ethiopian Government is accused of War Crimes in #Tigray, using Hunger as a weapon, + continues to blatantly lie about involvement of #Eritrean troops in Tigray cannot be trusted to deliver relief to Tigray… https://t.co/twxwVllCC6” / Twitter

17.  Assita Kanko MEP on Twitter: “Live #EPlenary speaking about Ethiopian conflict. We strongly condemn the violence in the Tigray region. We support international calls for swift and unconditional access to the whole region for humanitarian aid, independent human rights monitors, and the media. Urgent. https://t.co/Jr3UK5niNZ” / Twitter

18. Memorial service 01-23-2021, https://www.youtube.com/watch?v=sNZJUqumDj0

19.  https://twitter.com/HelenClarkNZ/status/1361272289325506562

20. Memorial service 01-23-2021, https://www.youtube.com/watch?v=sNZJUqumDj0

21. “Open Letter to Prime Minister Abiy Ahmed from retired U.S. Ambassadors to Ethiopia, January 21, 2021”, Staff Reporter, The Reporter, 26 January 2021, https://www.thereporterethiopia.com/article/retired-us-ambassadors-ethiopia-write-open-letter-prime-minister-abiy

22. Pope Francis asks for prayer for Ethiopia’s embattled Tigray region”. Pope Francis asks for prayer for Ethiopia’s embattled Tigray region (catholicnewsagency.com).

23. Staff reporter, “Aid to the Church in Need”: possible atrocities in Tigray – Vatican News, The Vatican News, January 26, 2021.

24. Archbishop Thabo Makgoba: Archbishop Thabo Makgoba pleads for the people of Tigray, Ethiopia (anglicanchurchsa.org).

25. Memorial. See also note 20 supra.

26. Asena Television ATV 25 February 2021, https://www.youtube.com/watch?v=ougTZaHOUzs For more detail surrounding these atrocities consult, Ethio Forum 25 February,  https://www.youtube.com/watch?v=RFLX2ud5c8M; Ethio Forum and February 5 in https://www.youtube.com/watch?v=7U9vuN43-zs; and Awlo Media, 19 February 2021, in https://www.youtube.com/watch?v=J4FylsbjGv4

27. See the interview given by Eritrean Television to President Isaias Afeworki on February 8, 2020 (https://www.youtube.com/watch?v=dThEx-eztHQ) and February 17, 2021 (https://www.youtube.com/watch?v=EOG-HMKTNXI); See further, Alex Dewaal, “Who Will Call Out Eritrea’s War Crimes in Tigray?”, World Peace Foundation, December 23, 2020, in Who Will Call Out Eritrea’s War Crimes in Tigray? – Reinventing PeaceReinventing Peace (tufts.edu); the interview given to Dr. Aregawi Berhe, Andafta Media. Feb 2, 2021, https://www.youtube.com/watch?v=teffLbw7ISc; the interview with the leaders of the Tigrayan Biatona party, in Awlo Media, February 19, 2020  https://www.youtube.com/watch?v=J4FylsbjGv4

28. “Open Letter to Prime Minister… note 21 supra.

29. Joachim D. Ahrens and Yves Guinand, “Agroproduction in Tigray and Wollo”, African Studies Center of the University of Pennsylvania, September, 1998, available in https://www.africa.upenn.edu/Hornet/meher98.html

30. “Famine crimes Ethiopia’s government appears to be wielding hunger as a weapon”, Economist January 23, 2021 in https://www.economist.com/leaders/2021/01/23/ethiopias-government-appears-to-be-wielding-hunger-as-a-weapon

31. “Ethiopia: Immediate Priority is the well-being of the people of Tigray” Press Conference, 10 December 2020, reproduced in, https://www.youtube.com/watch?v=tB_h-NfjesI

32. Ibid.

33. Accessible on the website: https://www.un.org/en/genocideprevention/about-responsibility-to-protect.shtml

34. US Department of State, Press Statement, note 10 supra.

35. Mick Wallace on Twitter, see note 16.

Democracy, Human Rights and the UN-Human Rights-Based Approach

Introduction

Democracy and human rights are universal aspirations and ideals which governments that claim to be legitimate should always respect. This is why the United Nations and its members commemorate December 10 as Human Rights Day and September 15 as the International Day of Democracy. While both are considered by the UN as “interdependent and mutually reinforcing”[1], they are also the subject of controversies which are complex, multi-faceted and politically sensitive.

There are scholars who feel that the emergence of the international regime of human rights, linking human rights to democracy, has weakened the preexisting ideological divide by conditioning governance to the requirements of human rights. This has been the case especially since the UN developed the Human Rights-Based Approach (hereafter HRBA), urging member-states to use this approach in the pursuit of political goals, such as development and good governance. Not surprisingly, some of the scholars who used to stubbornly defend this or that ideological school of thinking are now prepared to be flexible and accept the validity of human rights which were not tolerated traditionally by their ideological camps, such as the rights to health or education and minority rights. However, many others have remained in their ideological barracks, criticizing or belittling the UN approach to human rights and democracy because it deviates from their ideological orthodoxy.  These scholars may never surrender until and unless the contours of international human rights law are perfectly aligned to their own ideological doctrines.

Many other scholars have preferred to watch from the sidelines as the HRBA takes root. Their silence has created a wide gap in the academic literature where contributions are most needed. Publications on HRBA which come after it is fully developed will still be welcome, especially for those interested in history. However, timely commentaries can make valuable contributions to debates around the direction democracy and human rights are taking. It is bearing this in mind that this study was undertaken.

The importance of this subject-matter hardly needs explaining. In 1998 the UN adopted the Declaration on Human Rights Defenders, encouraging the promotion of human rights awareness, and affirming the rights of individuals to be concerned with human rights and to claim their rights. In effect, this instrument lays the foundations for the measurement of democracy based on application of the HRBA from below. In response to this, and in the interest of critically assessing the broader political implications of this approach, the academic world should share its intellectual insights rather than lagging behind. Scholars should feel free to express their own views, including those which further particular economic, social and political interests. This is, in fact, what most of them do, defending their respective beliefs in the name of justice, even though their conclusions are hardly reconcilable. Still, it is better for scholars to make contributions, rather than leaving questions relating to human rights and democracy to be shaped by political actors to meet their needs.

At the core of the discourse on human rights and democracy is the question of who the human being (the self) really is and how s/he relates to or should relate to society and the state. The philosophers who previously devoted their lives to answering these questions now rest in peace, after agreeing to disagree with one other, leaving their followers intellectually restless. The ideological camps that have gradually emerged are not only numerous, but also tolerant of multiple interpretations, thereby blurring the landscape. This is why we see all kinds of shades of opinion within liberalism or Neo-Liberalism, Marxism or Neo-Marxism, Social Democracy, Communitarianism etc. Less colorful, more focused and relevant to the real political world is the approach used by global political organizations, such as the UN. Their positions are widely accepted for the simple reason that they are products of a broader political consensus, which accommodates the diverse views of experts from different fields.

What makes the UN approach legitimate is the existence of a legal mandate to promote human rights as stipulated by article 1 paragraph 3 of its Charter. Using this mandate, this organization has adopted an impressive list of international human rights instruments which have been widely ratified by its member-states. The contents of some of these human rights instruments concern democracy, directly or indirectly, as will be shown later. The compliance by state with the undertakings assumed under these international instruments is monitored by a number of international bodies using a range of different methods, for example by considering reports and petitions received, or by tracking the progress made. Obviously, there is a long way to go before this international regime of human rights achieves its goals. However, no one can seriously question that the UN has reached a milestone by developing this international regime, thereby making the world a more humane place than before.

When it comes to the promotion of democracy, per se, the contributions of the UN are often belittled by those who are displeased by the apparent neglect of the preferences of their own ideological camp. In fact, much was achieved, especially considering that the organization was prevented during the Cold War period from engaging in what was deemed to fall under the domestic jurisdiction of states by paragraph 7 of article 2 of its own Charter. It is also important to remember that there was no consensus around which political system served democracy best. Was it that of the U.S. in the 1950s, which excluded blacks and women from political participation? Or the Swiss confederal model, which did not permit women to vote until the 1970s? Or that of the socialist states in the Eastern bloc, which disregarded political rights?

Leaving this aside, the UN has played a crucial role in developing the rights of peoples, by elaborating the contents of these rights, e.g. the rights to self-determination, to social progress and to development. These clarifications were significant for democracy since they concern both peoples (the demos) and good governance (kratia). This approach addressed democracy head-on, and not only from a theoretical perspective. Decolonization was advanced by applying the Charter principle on the right of peoples to self-determination. The system of Apartheid in South Africa was confronted. Arbitrary usurpation of power was denounced in many countries, and the UN began to monitor elections in post-conflict situations or where there were serious political conflicts. The support which it gave and still gives to the promotion of gender mainstreaming, empowerment and participatory rights also concern democracy.

The collapse of the Socialist regimes in the former USSR and its Eastern European allies, who were the staunchest defenders of state sovereignty, removed one of the most serious hurdles to the promotion of democracy. The UN capitalized on this political development to raise the banner of democracy, which gained prominence on its agendas. The 1993 Vienna Declaration of Human Rights made abundantly clear that “(t)he international community should support the strengthening and promoting of democracy, development and respect for human rights and fundamental freedoms in the entire world.”[2] This document linked democracy to “the freely expressed will of the people to determine their own political, economic, social and cultural systems and their full participation in all aspects of their lives.”[3] Within a decade or so, HRBA was developed. Initially, this approach was recommended as a tool for application in the promotion of economic development. However, gradually its use was extended to other areas, for example, to health, child welfare, gender mainstreaming etc. Although the UN maintains that it does not advocate a single model of democracy[4], one can wonder if the HRBA which it uses is not one such model, since it promotes a bottom up approach to politically sensitive questions including the question of what constitute sound governance.[5]

Proceeding from the above acknowledgement, this study examines the road map used by the UN in developing and promoting human rights and democracy, and how it urges its members to conduct themselves by applying HRBA. The questions which guide this study are clear-cut. Is there a UN perception of democracy? If so, what is the position of this organization regarding the contested ideological positions concerning who the individual self is, and how this person relates or should relate to society and the state? Has the UN’s position discredited or sanctioned the views of this or that ideological school of thought? What are the consequences of relying on HRBA to promote democracy? Will this reliance promote democracy in form, as well as, in substance? Will it empower the victims of oppression and marginalization, thereby ending despotism, oppression and bad governance once and for all? What are the wider political consequences and implications of using this bottom-up approach? Will it lead to the fragmentation of multi-ethnic and multi-national states by making them ungovernable when the voices of the marginalized are heard? Will states reject HRBA because of fears that it will lead to the destabilization of their governments?

Since international human rights law is used in this study as the term of reference for measuring democracy, the reliance on a particular theory or hypothesis to guide the study has not been appreciated. Instead, what is done is to examine the relationship between the pertinent provisions of the human rights laws, sound governance and how the Human Rights-Based Approach offers. In effect, therefore, the study follows the indictive approach.

This is also why the answers to most of the questions posed above appear to be obvious from how the provisions of the different international human rights instrument have been formulated. Before examining these documents and the UN’s approach to democracy, it is necessary to reflect on he ideological controversies surrounding the concept, and how it evolved historically. Only then will one be able to judge the significance and implications of the approach used by the UN based on the application of the human rights norm.

Conceptual Clarification 

Democracy, as was pointed out earlier, is praised and aspired to across the globe while at the same time being controversial. This is one reason why varied forms of democracies are found, whose goals and features are often at odds with one another. Take, for example, ‘the Western model’, which is known as liberal democracy. This model is supposed to guarantee individual political rights (freedom of expression, association and assembly), universal suffrage, a free media, and the multi-party parliamentarian model of governance based on the division of power (with checks and balances). However, the systems of governance in Italy, France, the United States and Denmark are far from being the same. The model that has been adopted in some of the Eastern European states, such as Hungary and Poland, is criticized and referred to illiberal democracy, ‘low intensity’ or ‘empty’ democracy because there are restrictions on individual civil liberties and the free media. If the attack on the media makes democracy illiberal then the U.S. is also heading in this direction since President Trump regards the media as the enemy of the people, except for a few extreme right-wing media outlets. Before the demise of the Socialist order in Eastern Europe and U.S.S.R the labels most commonly used by the Soviet bloc countries were proletarian democracy or people’s democracy. In the Nordic countries the phrase social democracy is used to describe their welfare system, which is financed through higher taxation.

Even within a single country, we can see the bewildering variety of ways the word democracy is used. Sweden, for example, was governed during the last few years by a coalition led by the Swedish Social Democrats. The opposition camp included the Christian Democrats and the Swedish Democrats. Although the Swedish Democrats are supported by about 17% of the electorate, the party has been ostracized by all the political parties because of its racist roots. Adding more confusion to this scenario, a new political party called simply The Democrats has just come to prominence in the Gothenburg region by securing 17% of votes in municipal elections. All this may well make Swedish citizens wonder who the true democrats are.

Dictionaries define democracy in a variety of way, reflecting the divergent ways the term is understood in the real political world. Sources that fail to do this or that tell only one side of this perplexing story run the risk of being criticized for being ideologically biased. This is why we find this term defined in different ways, reflecting the political mess in the real world. According to dictionary.com (Thesaurus), it can mean “a form of government in which the supreme power is vested in the people and exercised directly by them or by their elected agents under a free electoral system” or “a state of society characterized by formal equality of rights and privileges.”[6] Cambridge Dictionary re-affirms this and underscores further the importance attached to the expression of opinions and that government should be elected.[7] Likewise, in Merriam-Webster we read that this term describes a system of “government in which the supreme power is vested in the people and exercised by them directly or indirectly through a system of representation usually involving periodically held free elections.”[8]

These and other similar broad and varied definitions of democracy raise more questions than they answer. Does this term mean self-rule by the people collectively, as a group, where all the members of the community have equal voice and are the beneficiaries of this rule? Or does it mean majority rule? Does it require more than the presence of political institutions that allow the electoral system to function and ‘formal’ equality? For example, does the fact that the political system restricts voting rights to men only or to certain racial groups mean that there is no democracy? What about if the country does not respond to the needs of the people, e.g., by denying people economic and social rights? Should the political system promote real equality and a fair distribution of resources? Because these questions are answered in so many different ways Susan Marks correctly remarked that“democracy appeared to mean everything, and therefore nothing.”[9]

One way of understanding democracy would be to examine the toot of the word itself, i.e. ‘dēmo’’, which means ‘people’, and ‘kratia’, meaning authority or rule, in Greek.[10] When juxtaposed, these two words convey the idea that the inhabitant of a territory govern themselves by exercising political power or have a say in the affairs of governance. Ancient Greek cities, such as Athens and Sparta, are believed to have practiced dēmokratia.  Aristotle listed many other examples when he wrote:

At Marseilles the oligarchy became more constitutional, while at Istrus it ended in becoming democracy, and in Heraclea the government passed from a smaller number to six hundred. At Cnidus also there was a revolution… Another case was at Erythrea, where at the time of the oligarchy of Basilidae in ancient days, although the person of the government directed affairs well, nevertheless the common people were resentful because they were governed by a few, and brought about a revolution of the constitution”.[11]

Over the years, these experiences of the Greek city-states inspired many political communities to emulate them. In the late 18th century, the American and French Revolutions raised the banner of democracy with the aim of ending despotism and replacing it with a democratic system. What distinguished their experiences from those of the ancient Greeks were the right-based justifications used to legitimize the political system and the structures that were created to ensure its continuity, e.g., through a system of division of powers, the codification of right and respect for the rule of law. The American Declaration of Independence sets out what are claimed to be ‘self-evident’ truths by underscoring the belief:

that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. — That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed.”[12]

When the French revolutionaries brought to an end the despotic feudal regime of the House of Bourbon, they proclaimed in their Declaration on the Rights of Man and the Citizens that “men are born and remain free and equal in rights” and that the goals of political association should be “the preservation of the natural and imprescriptible rights of man”.[13] Subsequent constitutions of the French Republics included a commitment to respect the principle of “government of the people, by the people and for the people.”[14]

Like the proponents of democracy in ancient Greece, the American and French revolutionaries claimed to have empowered the people by giving them self-rule. Unfortunately, this is often misinterpreted as meaning the total empowerment of all members of the political community (the people), in the sense of being full beneficiaries of the political system. This is far from true. The democratic experiments in Istrus, Heraclea, Cnidus, Erythrea and Basilidae, which Aristotle wrote about, did not permit all the members of these communities to participate in the political process (children, women and slaves, for examples, were excluded).[15] In fact, Aristotle clearly stated that some people were slaves by nature, and lacked the necessary capacity to rule, and therefore it was advantageous for them to be ruled by the free people. Despite this obvious exclusion from power, the political system was called democracy, apparently because it was expected that those who were empowered by the system would promote the interests of the community as a whole, e.g. by sharing what the system has given them.

One can draw a parallel with the democracy which was promised by the American and French Revolutionaries at the end of the 18th century. The ‘American people’ emerged as a legally and politically constituted entity and were promised a democratic order. Yet those who held power were ‘white men’. Before slavery was abolished in the 1880s black slaves were deemed to be the property of their white owners. Many of the celebrated fathers of the American Revolution, such as George Washington and Thomas Jefferson, were themselves slave-owners. White women too were marginalized and excluded from positions of power until the mid-1960s. Even the American Indians that had treaty relations with the United States were disempowered for too long, despite the fact that they were formally acknowledged as ‘domestic sovereign entities’.

The French Republics which were established following the French Revolution also failed to deliver the democracy that had been promised, until after World War II. The ‘French people’ was recognized as a single political entity but power was in the hands of French white men. Although the 1879 French Declaration recognized ‘the rights of man’, the French slaves and the colonial peoples remained excluded from power despite being regarded legally as members of the French community.

‘People’ (dēmo’). Without knowing who ‘the people’ is and what the nature of its authority is, it is difficult to know what democracy means. Is this people composed of all the persons that are present in the country, including foreign residents and tourists, or only the citizens (wherever they may be), or is it selected categories of citizens (e.g. only men)? Is the power or authority of this people simply to choose who should rule, regardless of whether the chosen ruler is a tyrant or one who responds to the wishes and needs of the governed? In other words, does democracy empower the people to rule itself through elected representatives who can be removed if they fail to respond to what the electorate wants and expects?

The term ‘people’, in everyday usage, describes a collection of individuals. The term is commonly used to describe a particular social group by combining it with a social, territorial other factor.[16] Examples of this include the description of those inhabiting particular territory, as ‘Hill People’, those living in the countryside, as ‘rural people’, those who speak the same language as the ‘French-speaking people’ or the ‘Arabic-speaking people’ (the whole north Africa), or those who profess the same religion, as ‘the Jewish people’. Whichever classification is used, the term ‘people’ groups together large number of individuals as a an entity sharing particular characteristics.

When used in the technical sense, for legal or political purposes, ‘people’ identifies a legally organized political community. The glue which unifies the individuals as an entity here is not necessarily a common language or religion or territory, but a political and/or legal identity. This means while people in a society can be divided according to the languages they speak, the religions they profess and the territories they inhabit, legally they constitute one entity. Examples of this include references that are made to “the American people”, “the German people”, “the Swiss people” or “the French people”. The French-speaking “people’ is not the same as “the French people” since the former embraces French speakers in France, parts of Belgium, Switzerland and Canada. “German-speaking people” is broader than the “German people” because the German language is spoken Germany, Austria and parts of Switzerland.

Appreciating this distinction, dictionaries acknowledge that the word ‘people’ also means “a political community”[17] or “any consolidated political body”[18] or “the entire body of those citizens of a state or nation who are invested with political power for political purposes.”[19] Likewise, philosophers, jurists, political scientists, and other scholars also use ‘people’ as a code word, to mean  a “body of the citizens”[20] or “a public family or nation (gens, natio) whose members are all related to each other as citizens of the state”[21], or simply as ‘the “aggregate of individuals of both sexes who live together as a community in spite of the fact that they may belong to different races or creeds, or of different colour.”[22] Not surprisingly, we see the plural form of this term in use as “peoples”, as stated in paragraph 2 of article 1 of the UN Charter which deals with the self-determination of peoples.

Understood in this unique technical sense, a people can be very young, e.g. “the people of South Sudan” which came into existence eight years ago, or over three hundred years old, like “the American people” which dates from in 1776. Two distinct peoples can merge, example as the East and West German peoples did following the fall of the Berlin Wall, and one people can split into two or more new political communities, as occurred in Yugoslavia and the USSR. Again, a people can also exist for well over a thousand years. The fact that no human being can live that long makes no difference. Grotius clarified the distinction that should be borne in mind between the lives of these kinds of imagined political communities and those of their members by stating the following.

(I)n comparing a river to a people, Aristotle said that rivers bear the same name, though different water is always replacing that which is flowing on. Again, it is not an empty name merely that remains, but ‘the essential bond’, which Conon defines as an ‘inherent bodily character’, Philo as a ‘spiritual bond’, and the Latins as a spirit.”[23]

If the existence of a people as a political community is indisputable, a question which follows from this is how can this people govern itself as suggested by the term democracy? Does this necessarily mean that the voice and interests of all the members of this political community should count? Responding to this question, John Mills wrote:

The ‘people’ who exercise the power are not always the same people with those over whom it is exercised … The will of the people, moreover, practically means the will of the most numerous or the most active part of the people; the majority, or those who succeed in making themselves accepted as the majority…[24]

This honest statement exposes the hypocrisy surrounding those who brag about behaving in accordance with the principles of democracy. If democracy is the rule of the people as a whole, government which responds to the interests of a minority or a majority cannot be democratic. To argue otherwise is false or, in everyday language, a lie.

Governance. If the term people (demo) in democracy relates to an organized socio-political entity, what is its authority or rule (‘kratia’) when speaking of democracy? There are two ways of seeing this. One is to say that if sovereignty belongs to the people, power can only be delegated to the government. This means that the governmental authorities are mandated to serve as representatives, to act by responding continuously and transparently to the wishes and interests of the people. The other interpretation reduces democracy to the means of legitimizing the government. Once the people has chosen the government, those elected should represent the state by exercising the sovereignty of the state. They can do this by promoting the interests of the majority or of a minority or minorities or those of the whole people as they see fit. Until its period in power is over, the government in charge does not have to step down just because there are people that are not pleased by how the country is governed. Whichever stance one takes, it is difficult to avoid those ideologically charged questions regarding the kinds of rights of the members of the political community should have, and the justifications for these rights. While a deeper discussion of this topic is beyond the scope of this contribution, it would be a mistake to ignore it altogether in any discussion of democracy and human rights.

 The Discourse on Human Rights and Democracy

The Contentious Positions: The debate on human rights and democracy is very old, complex and linked to the kinds of political interests which deserve to be protected. The main aim here is not to attempt to disentangle all the thorny issues but merely to highlight the dominant positions as a backdrop for an examination of where international human rights law stands on this matter. The two most contested issues relate to (i) what is meant by ‘the will of the people’ and ‘the government of the people’ when speaking of democracy; and (ii) how individuals relate to this ‘people’, and the state. These questions cannot be answered without opening up a Pandora’s Box of many other controversial questions. For the purpose of this paper, the debate can be narrowed down to one between the individualist and collectivist approach to rights. The dividing line concerns the justifications for the rights of individuals, what the limitations for them are and how they apply to individual as member of broader social groups inside political communities? Defenders of the rights and interests of the broader community maintain that since individuals are product of their communities, their rights and freedoms should be subordinated to the rights, interests and needs of their communities. Most individualists, on the other hand, reject this position and question the very existence of the community or society as a separate entity.

Whichever stance one takes (individualist or collectivist) in order to defend democracy, there is no escape from the requirement to justify why rights should be recognized in the first place. The question which begs for an answer becomes what the foundation for the rights which is used as the bricks for building and sustaining the desired form of democracy? Defenders of Natural Law, positivism and other sources of rights have wrestled with this question, which brings to the surface seemingly intractable questions regarding the nature of the human being. Are humans social, humane and rationale, or self-centered, autonomous and evil beings, who should be tamed to conform to social requirements? Can democracy co-exist with individualism? Should the majority impose its will over the rest in the name of democracy? Is democracy merely the presence of a social contract whereby the governed choose who should rule? Should the governed have a say on how the government rules? These questions have been answered differently.

The theory of social contract has been advanced by different philosophers in the interests of the governed, even though the way it is formulated has varied considerably. Thomas Hobbes (1588-1679) used this theory to legitimize the rulers and the suppression of ‘natural rights’. He was praised for having recognized the ‘existence’ of natural rights which entitle the individual to defend his life and interests on the basis of his own judgment.[25] However, because the exercise of these rights leads to “war of all against all” (Bellum omnium contra omnes). Hobbes called for their renunciation in the interest of the common good. This was justified because we are not social (like bees) but individualistic, egocentric, jealous, evil beings who constantly struggle for power and dominance.[26] This being the state of nature, the only way out from the ‘war of all against all’ is for people to surrender their natural rights by choosing the ruler (a king or an assembly) who governs by suppressing natural rights in the interest of peace and the common good. If the ruler fails to achieve this, the people should choose a different ruler.[27]

This Hobbesian formula advocates a government which is chosen by the people and for the people but is not of the people. The idea of social contract is used merely to legitimize the government and to disempower the governed in the conduct of the political affairs of the community. In other words, this is not democracy in substance. The despots of that time ridiculed Hobbes’s recognition of natural rights and the idea of a social contract, whereby people would be free to choose and change who ruled them. However, they liked his endorsement of despotism, which is why Hobbes earned the title of apologist for tyranny.

Like Hobbes, John Locke (1632-1704) and Immanuel Kant (1724-1804) recognized natural rights and supported the idea of a social contract theory. However, they did not use it to justify despotic form of governance. Both rejected Hobbes’ negative view of the ‘state of nature’ of mankind. According to Locke, ‘the war of all against all’ that Hobbes wrote about arises not from the evil nature of mankind but from disregard for the Law of Nature.[28] It was this unfortunate condition which led to the need for civil government in the first place, i.e., as a “remedy for the inconveniences of the state of Nature”.[29] The purposes of civil societies should, therefore, be to preserve the natural rights of the citizens, such as life, liberty and property.[30] When a government fails to protect these natural rights, the people should be able to remove and change it.

Immanuel Kant also dismissed Hobbes’s negative view of the state of nature and the notion of war of all against all “as if there could have been no other relation originally among men but what was merely determined by force…”[31] The goals of establishing civil union should not be to ensure the destruction of natural rights, but to strengthen them “by laws of right.”[32] The Kantian formula of social contract for governance asserts “the right of every citizen to have to obey no other law than that to which he has given his consent or approval …civil equality… (and) … the right to owe (one’s) existence and continuance in society not to the arbitrary will of another, but to his own rights and powers as a member of the commonwealth…”[33] These thoughts of Locke and Kant were highly praised by many, especially by liberals and libertarians, who later used them to justify the establishment of a democratic political order which strengthens individual rights and limits to the powers of the government.

Jean Jacques Rousseau (1712-1778), who lived during the same period as John Locke, also defended both natural rights and the principle of social contract. “The people, being subject to the laws, ought to be their authors,” he wrote, “the conditions of the society ought to be regulated solely by those who came together to form it.”[34] He too dismissed the negative picture of the state of nature which Hobbes had painted. According to him, social life promotes morality and the values of humanity even if it is not always easy to suppress individual selfishness and anti-social behaviors. In other words, what is unique with his approach is the recognition that the individual should not be allowed to undermine the interests of the broader community. Individual rights and freedoms should be subordinated to those of the community. As he puts it, “whoever refuses to obey the general will shall be compelled to do so by the whole body. This means nothing less than that he will be forced to be free”.[35] This earned him the title ‘Communitarian’.

For Karl Marx (1818-1883), the human being is a social being whose vital expression is nothing but “an expression and confirmation of social life.”[36] By nature, man was not evil, as Hobbes maintained, but is good and social. However, men had been poisoned by the system of private property, which had reduced each individual to nothing more than a ‘representative of property’. Human essence exists only when there is existence for one another “as the vital element of human reality”.[37] This kind of social existence makes society“the perfected unity in essence of man with nature” or “the realized humanism of nature”[38], rather than something dissociated from individuals that comprise it. Marx argued that the social contacts proposed by the writers such as Hobbes, Locke, Kant and Rousseau cannot resolve the political problems and conflicts arising from social relations based on the appropriation of private property. The ‘war of all against all’, which Hobbes wrote about, was the class war.

Karl Marx dismissed some of the French and American revolutionary slogans, such as, liberty, security, freedom, and equality, as both empty words and deceptive. These ideals cannot be realized in a political community which relies on private property. As he argued:

The liberty we are here dealing with is that of man as an isolated monad who is withdrawn into himself. The right of man to freedom is not based on the association of man with man but rather on the separation of man from man… The concept of security does not enable civil society to rise above its egoism…[39]

The “rights of man” which the philosophers of the late 18th century defended were denounced by Marx because they protect the selfish interests of the bourgeoisie and tear human beings apart from their communities. Even if they appear appealing in theory, “not one of the so-called rights of man goes beyond egoistic man, man as a member of civil society, namely an individual withdrawn into himself, his private interests and his private desires and separate from the community.”[40]

The electoral systems established after the French and American Revolutions were belittled by Karl Marx. In his opinion, the deputies that were elected could only serve as a rubber stamp for advancing the ‘particular’ class interests of the ruling class.[41] It was impossible for the deputies to act otherwise since “the politeness ceases as soon as privilege is menaced.”[42] Still, unlike his ideological colleague, Engels, he did attach some value to the electoral system to the extent that the workers could exploit it to speed up the demise of the political system.[43] However, in his view, emancipation of the oppressed class could only be achieved by transforming “the affairs of the state into the affairs of the people”.[44] This means nothing less than dissolving the old society by overthrowing the ruling class “on which rested the power of the sovereign, the political system as estranged from the people. The political resolution is the resolution of civil society.”[45] Besides encouraging the proletarian class to rise up to this end, Marx and his ideological compatriots and followers (F. Engels and V. I. Lenin) also supported, as legitimate, the struggle of historically constituted sociological nations to secede from oppressor nations and to establish proletariat nations.[46]

The flood of literature which is inspired by the above-mentioned thinkers and others before and after them is often categorized under various schools of thinking, such as Marxist and Neo-Marxist, liberal and Neo-Liberal, Libertarian, Communitarian, traditionalist and many others. Although writers sometimes resent being compartmentalized in this way, these labels will be employed in this study as they are used in the general literature to make it easier to understand who follows which position in the debate relating to human rights and democracy.

Liberals and libertarians are the champions of individual rights and freedoms and question the legitimacy of collective and group rights. The latter are defended by Communitarians, Socialists and Social Democrats. Having said this, care should be taken to avoid generalizations, since we find various shades of thoughts within each school of thought. This is why it is important to examine the formulations used by each writer before passing judgment on the democratic formulas defended by each school of thought. It is simply for purposes of simplifying this complex debate that this paper has chosen to divide them between two camps, namely those who defend normative individualism and those who are behind collectivism.

The thought of Ayn Rand, one of the most celebrated libertarians, can be used as an example of how many defenders of normative individualism think.  For Rand, the best political system to live under is “a full, pure, uncontrolled, unregulated laissez-faire capitalism.”[47] This is because the system protects individualism by stimulating the pursuit of the selfish interests which she valued so highly. She rejected the existence of collective entities, including “– society,’ since society is only a number of individual men”.[48] She despised collective morality, such as solidarity and altruism because they lead to “renunciation, resignation, self-denial, and every other form of suffering, including self-destruction”[49] and ultimately bring “the morality of death.”[50] Put bluntly, “if civilization is to survive,” she wrote, “it is the altruist morality that men have to reject”.[51] Instead of ‘public morality’ she believed in the merits of individual morality, to be used as “the means of subordinating society to moral law”.[52]

Rand maintained that the sources of these kinds of individual rights, liberties and freedoms “is not divine law or congressional law, but the law of identity.”[53] Rights, for her, represented “the property of an individual” and “society as such has no rights”, thus “the only moral purpose of a government is the protection of individual rights”.[54] She was well aware of the claims of those who regarded themselves as collective entities and who were demanding rights or protection but rejected their claims. “A group, as such, has no right”, she wrote, and individuals who claim to exist as collective entities are nothing “but a gang or a mob”.[55]

This rejection of community led Rand to question the role of government in promoting the wider interests of the society or in protecting marginalized groups. This was in part because this protection requires using revenues that are derived from taxing others (which she called ‘robbery’). She strongly resented the use of tax revenues to provide benefits under the pretext of promoting the right to work, health services and standards of living. As far as she was concerned:

“There is no such thing as ‘a right to a job’ …(but) a man’s right to take a job if another man chooses to hire him. There is no ‘right to a home’.. ‘rights’ of special groups … There are only the Rights of Man.”[56]

For her, the only legitimate rights were individual, civil and political rights, with the exception of property rights which are “man’s only ‘economic rights’”, and the only rights that deserve to be called political rights.[57] Leaving this aside, there are “no ‘economic rights’, no ‘collective rights,’ no ‘public-interest rights’.”[58]

Liberals[59], like libertarians, applaud normative individualism because it protects the rights of the individual by disregarding the collective needs of the members of the community. This is justified on the grounds that the individual is “the primary normative unit” of society and the state. Jack Donnelly, for instance, remains convinced “that only individuals can have human rights” and therefore opposes group rights.[60] According to him, society and the state are constructed by individuals for the promotion of their interests. “Human rights are morally prior to and superior to society and the state,” and can only belong to individuals “who hold them and may exercise them against the state in extreme cases.”[61] Donnelly accepts that the individual “is a social animal”, whose personality and potentials are “developed and expressed only in a social context”, which is why society discharges “certain political functions” through its political organization (the State).[62] Because of this, individuals do have duties towards society.[63] However, when tension emerges between the interests of the society and its individual members, the conflict should always be resolved by giving priority to the wishes interests of the latter. “For the liberal,” wrote Donnelly, “the individual is not merely separable from the community and social roles but specially valued precisely as a distinctive, discrete individual – which is why each person must be treated with equal concern and respect.”[64] This distinctive existence, according to Donnelly, legitimizes the rights of the individual to enjoy the “liberty to choose and pursue one’s own life”, including by exercising those familiar civil and political rights known as “rights of man”.[65] This reduces democracy to a form, which is an end in itself, i.e. for legitimizing government, rather being self-government by the people and to promote the welfare of the community, including marginalized social groups etc. “The democratic component of liberal democracy”, stated Susan Mark, “comes to revolve, principally, around elections.”[66]

There are Liberals who seek to give democracy substantive meaning by accepting the importance of promoting some collective interests of the community. Donnelly himself, for example, refers to the legitimacy of economic and social rights, such as the rights to food, health care and social insurance, and hence the role of the “society” in providing basic services such as “health care or universal material benefits”.[67] This, according to him, also distinguishes him from John Locke, whom he criticized for failing to address key development issues.[68] The democratic formula which Donnelly supports, therefore, responds not only to the rights of the individual, but also to a certain extent to the needs of the community in the interest of justice.[69]

Will Kymlicka also moves the compass of liberalism closer to what matters for the marginalized and the common good. To defend this within the framework of liberalism he focuses on “a liberal theory of community and culture”.[70] As he sees it, membership of cultural groups “gives rise to legitimate claims, and some schemes of minority rights respond to these claims”.[71] According to him, protection of individual rights should not be perceived as necessarily leading to confrontation or tension within society. The members of the community are, after all, not separated from their groups since there are ‘bonds of mutual respect” which motivate individual members to act responsibly and to “successfully pursue their understandings of the good.”[72] This is how different groups of people have always co-existed and how they freely pursue “their shared communal and cultural ends, without penalizing or marginalizing those groups who have different and perhaps conflicting goals.”[73] This approach brings normative individualism closer to what concerns communities and thereby to the acknowledgement of the roles of government to promote these needs. However, this does not go far enough to the recognition of collective life or groups. As Birch put it, “(T)he language of rights has to be used with great care when it is applied to groups”.[74] Those who endorse this kind of middle-of-the-road approach are often called ‘Social Liberal’.

Communitarians are not shy when it comes to defending communities, their interests and the role of governments. They dismiss Liberalism as a misleading ideology because it distorts who the self is and how social relations work. Michael Walzer calls this ideology an ‘incoherent’ and “a self-subverting doctrine” which cannot be reconciled with reality. The reality which Communitarians recognize acknowledges the presence of social bonds, values and loyalty to family, relatives, neighbors, friends and co-workers. Liberalism, according to Walzer, denies all this as if the individual exists in a vacuum and as if there is no community, no Jews, blacks, Catholics, religious organizations, etc.[75] Brian Lee Crowley relegates Liberalism to the sphere of an intellectual exercise that is in conflict with the real world.[76] According to him, the self is shaped by social forces, i.e., the community, language, culture, history etc. These social forces enrich the self, endowing it both with morality and roles and responsibilities. He dismisses the Liberal’s ‘universal’ self as a one dimensional ‘faceless’ being who resembles a shadow, or even an inanimate object.[77] “The liberal social order”, he states, “finds its justification in a realm of abstraction quite separate from the concrete and contingent.”[78]

The self emerges in the real world, according to Crowley, from a social context, as a byproduct of complex processes of nurturing, training, relationships and attachment. These relationships “are partly constitutive of who we are, and to that extent our reflection on, and reasoning about, that part of our deeper self will entail the ‘coming to self-awareness of an intersubjective being’, whose boundaries transcend those of the individuals it comprises.”[79]

This contextual self-awareness comes with social roles and social responsibilities which are linked to religious, cultural, national, professional and other requirements. Compliance with these expectations is not perceived by the self as something that is done for ‘others’, but for ‘us’, and hence for ‘me’. The self is gratified by what it discharges for ‘us’ and is aware of the reciprocal services. The fusion between ‘me’ and ‘us’ is best explained by what MacIntyre calls ‘our moral particularity’, which derives from our particular social identity. This is why when the individual describes himself he brings others in the picture by stating:

I am someone’s son or daughter, someone else’s cousin or uncle; I am a citizen of this or that city, a member of this or that guild or profession; I belong to this clan, that tribe, this nation. Hence what is good for me has to be the good for one who inhabits these roles. As such, I inherit from the past of my family, my city, my tribe, my nation, a variety of debts, inheritances, rightful expectations and obligations.”[80]

This description reflects ways of life that exist in many developing countries. Here, individuals are often identified as “son of x or y” or as ‘the person from this or that community or village”. Even in the Western countries this survives in family names, such as Abrahamson or Johansson, meaning son of Abraham or Johan, or Kristbjörnsdóttir, meaning the daughter of Kristbjörn. These kinds of identifications sometimes bestow social benefits or disadvantages depending on the reputation of the person or family whose name is used. This approach to the understanding of the selfreveals the interactive and reflective nature of the individual. It shows that the individual is not as isolated and independent as s/he appears from the outside but “a being emerging out of a dense social ground” with fluid character, “rough edges and ill-defined boundaries.”[81]

Concluding Observations 

The conflicting approaches used to the understanding of the nature of the human being (the self) and how s/he relates (or ought to relate) to society and the state, have led scholars to endorse varied forms of government. Of these, democracy is clearly the most favored system. However, how democracy should be understood concretely and applied in practice remains a puzzle because the point of departure for deciding how society should be organized differs depending on how the human being is perceived. That democracy should permit people to choose their government is not in dispute. The dividing line is on what kinds of rights, freedoms and obligations the individual should have and how these should be aligned to the interests of community.

The nature of the human being (the self), as understood in the Hobbesian, Libertarian and Liberal sense, is at odds with social reality outside the Western world. Except in times of hardship, such as, during periods of war, political chaos or confinement (in jails or hospitals), the human being in this part of the world is social. S/he is a by-product of community life, inter-dependent and bonded with the other members of his/her community and motivated to maintain this state of affairs. Even in times of extreme poverty or economic deprivation, which tests the limits of human loyalty, individuals remain attached to one another emotionally, socially and in many other ways.

Although the political models of governance recommended by Hobbes, Libertarians and Liberals are different, they are united in their affirmation of the individualistic nature of the human being. Where the latter two currents of thought differ from Hobbes is in their rejection of his characterization of human beings as evil by nature. They, therefore, come to different conclusions regarding the extent to which individuals deserve to exercise what are regarded as natural rights and freedoms. For Libertarians and Liberals there should be no hindrance to the exercise of civil and political rights by individuals. What is more, these rights should even be prioritized over the interests of the community. As far as they are concerned, a community is nothing more than the sum of its members, which means that the community (or social groups) cannot have distinct interests and rights. This is why they advocate reducing the role of governments and their influence over community matters and reject the idea of protecting marginalized social groups.

This political model, which prioritizes the rights of individuals over the needs of the community and rejects the idea that government should have a role in responding to these needs, blocks the possibilities of achieving democracy in substance. Less governance, by definition, means less care for the collective needs and problems of the governed. Under these circumstances, it is difficult to see how there could be a government for the people as a whole. What the electoral system assures is only democracy in form, a means of legitimizing the power.

Social contract theory, as imagined by Hobbes, was also intended to legitimize the authority of the ruler. The government can be viewed as being “of the people’ since the people chose it. This right to choose the ruler was justified by Hobbes because he believed that the individual has natural rights, i.e. the right to rule himself. However, since this person is assumed to be, by nature, egocentric, competitive and violent, Hobbes recommended surrendering these natural rights in the interest of the peace and interests of community life. One should note, in this regard, that Hobbes expected the ruler to govern by observing the mandates given by the governed – namely to protect the interests and safety of the community. This means, there would be ‘a government for the people’. What is problematic in the Hobbesian formula is the assumption that people would choose to surrender their rights and freedoms and willingly submit to suffering under a tyrannical rule.

Liberal and Libertarian democracies are products of the historical evolution of Western European societies and those states which were established outside Europe by the descendants of Europeans. Liberal democracy is a political system which mirrors the nature of the prevailing social relations and which evolved from the requirements of the socio-economic and political structures of the industrialized capitalist states. It attaches special importance to the freedoms and values of the individual citizen and applies social contract theory as a means of legitimizing governance through regular elections. This constitutes a system of government of the people, hence democracy in form. The exercise of individual rights and freedoms opens the doors for empowerment from below, and governance by the people. However, since minorities are not able to participate effectively in the political machinery or to benefit from the economic wealth of these countries in the same way as the members of the majorities, the system has serious weaknesses.

In theory, this political model has the advantage of contributing to nation-building by shifting the loyalty of the individual away from his/her social group and traditional social structures to that of the state. However, in reality, this is possible only if states are politically and economically strong and able or willing to meet the needs of their citizens, including that of the marginalized members of the vulnerable groups. Otherwise, the latter will be unwilling to abandon their loyalty to their traditional identities and social structures since they are the basis for their survival.

Whether this Western model of normative individualism works in the developing countries as it does in the West is an open question. To assume that the indigenous communities of the Amazon, the rural tribal communities of Africa or the religious communities of the Middle Eastern countries will replace their collective ways of life by normative individualism is to be naïve. Even in the more economically developed urban settings of these countries, social relations have a collective dimension. Unlike in the West, the governments on these continents are not politically or economically strong enough, to care for their citizens, with the exception of mineral exporting countries (like the Gulf countries) or the few industrialized Asian countries. The negative consequences of replacing the existing social fabrics of these collective societies by normative individualism, at a time when the state is unable or unwilling to provide the means of existence to the citizens, would be  hard to predict. The massive exodus of ‘migrants’ from Africa to the European countries across the Mediterranean Sea might be one of these unfortunate consequences.

The fact that the developing countries have a heterogenous social base, in contrast to the homogenous nature of the nation-states of Europe, also calls into question the idea of rule of the majority which underpins democracy in Europe. This model of majority rule, that is characteristic of Liberal or Libertarian democracy, is appreciated by the members of the majorities since the political system adopts their ethnic, linguistic or religious characteristics. It is those who belong to the ethnic or linguistic or religious minorities who fear marginalization and discrimination based on their identities. It is no wonder, therefore, that the system can even tolerate and protect the exercise of individual rights and freedoms that are directed against ethnic, linguistic or religious minorities. This is also why when the racist, Nazi and Fascist groups mobilize the members of the majorities against the minorities they do it under the pretext of nationalism, by even describing themselves democrats.

For many of the African and Asian countries who have over one hundred smaller distinct ethnic, religious or cultural groups (e.g., Nigeria, Sudan, the Democratic Republic of the Congo and Ethiopia), majority rule can mean political and economic domination by very few ethnic groups with large populations. In most of these countries, the official languages used in the government offices, courts, schools, hospitals, employment areas, etc. are the language(s) or these majority groups. By virtue of their numerical size these majorities can effectively dominate the other groups economically, politically, culturally, socially and in other respects. The fear of being dominated by other social groups, as well as the desire to protect and promote their own traditional collective interests, leads individual in these kinds of societies to think of their own narrower social groups rather than with the nation when the right to votes is exercised. Alex Thomas was right in underscoring the point that even the recognition of “(M)ulti-party democracy … opens up the possibility of full-scale mobilisation. After all, as Claude Ake points out, ’Liberal democracy assumes individualism, but there is little individualism in Africa’. Africans interact on a more communal basis.”[82]

The other reason which makes normative individualism less attractive in countries that are not as economically developed as Western countries is that it is associated with calls to limit the role and authority of government in societal matters. People in countries with diverse social groups who suffer from neglect, deprivation and discrimination need centralized government policies and measures to provide assistance, for example, by expanding the infrastructure and providing education, health services, housing facilities and the like. This means government for the people. However, this is the exact opposite of what normative individualism calls for, particularly as inspired by the Randian political model.

This Randian model has been praised as the best system since it maximizes individual freedoms; however, at the same time it rejects the rights of individuals to work, health, education and a decent standard of living — i.e. to their very means of survival. Under this formula an unemployed person is given the option of accepting or rejecting an offer of employment. A person who is discriminated against in the field of employment, education or health has nowhere to turn to because the government is discouraged from responding to these kinds of social and economic problems. A citizen who is bankrupted after being forced to sell his home to pay for medical treatment for family member or who becomes disabled or ill due to conditions at work should not count on help from the government since the rights to health and a decent standard of living are not recognized. The individual merits no support as a citizen since the government has no authority to respond to such problems. Those private individuals who try to help by providing support are ridiculed since altruism is considered as foolishness. This model is surely unacceptable in developing countries. Martti Koskenniemi was correct in stating that “(T)he nation-State and its democratic forms may not be for export as pure form” and in warning against the insistence on using democratic models as “an international or universal norm of ‘democracy’ … within existing political communities (where it) may in fact be unacceptable … and always suspect as a neocolonialist strategy”.[83]

Concerned by the loophole in human rights which normative individualism has created, some Liberals, such as Jack Donnelly, Will Kymlicka, John Rawls and those who appreciate the virtues of Utilitarianism offer different kinds of remedies in the interest of social justice. Jack Donnelly endorses economic and social rights but not group rights, except indigenous rights. Kymlicka accepts group rights including minority rights. Both these positions deviate from normative individualism. Embracing Utilitarian ideas also creates obvious tension with the Liberal and Libertarian ways of thinking, whose very premise, at least as formulated in the thoughts of John Locke, Immanuel Kant and Jean Jacque Rousseau is the defense of natural rights. According to Jeremy Bentham, the father of Utilitarianism and positivism, the notion of natural rights is nonsense because it is fabricated based on passions.[84] “There are no rights without law”, in his opinion and “no rights contrary to the law.”[85] Rights, obligations, offence and services are all inter-connected and they are made by governments to govern the community.[86] When there are social problems or wrong things happen, it is the responsibility of the government to make them right, in ways that maximize benefits to the welfare of the governed. This is why Utilitarianism maintains that if a right is worth its name it should have utility.[87]

The collectivist schools of thoughts, such as, Communitarianism, Socialism and Social-Democracy embark from a solid base which considers the self as a by-product of the community and the defense of the collective interests. Unlike the proponents of normative individualism, they do not have to rely on imagined ‘natural rights’. Their concern for collective and group interests makes their approach ‘democracy friendly’ since the people are groups, not individuals. Regarding the self as a by-product of the community leads to the idea of empowering communities. However, this creates tension inside multi-ethnic and multi-national societies, and may even lead to the disintegration of their states, as occurred in the former U.S.S.R, the Yugoslav Federation and Czechoslovakia. The challenge is to develop political models which extend democracy to the people of the state, as a whole, while protecting the interests of communities.

An example of a common ideological platform which unifies diverse ethnic, religious and cultural groups under a common cause is the Marxist theory of Socialism which merges ‘the workers’ into one proletarian class. The weaknesses of this theory include (i) the rejection of the civil, political, economic, social and cultural rights of the individuals, (ii) the use of the top-down approaches of governance by elitists (central committees) to dictate on the people, and (iii) the assumption that all sociological nations should have the right to create their own political nations. The concept of the ‘dictatorship of the proletariat’ implies elitist rule by those who claim to know the requirements of ‘Scientific’ Socialism and who are intolerant of dissent. We have seen, time and again, how opposition can be silenced by being condemned as anti-social, reactionary, counter-revolutionary.

The other problem with the Marxism model is its defense of national self-determination. The application of this theory would lead to the disintegration of multi-national states such as Russia, Spain and the United Kingdom as well as most African and Asian countries, as has already occurred in the former U.S.S.R, the Yugoslav Federation and Czechoslovakia. Moreover, this is likely to encourage smaller social groups, such as, indigenous groups, tribes, and religious and linguistic communities to also struggle either for separation or for some kind of autonomy, thereby further disrupting the fabric of national unity.

Social democracy has navigated between these contrasting positions of Marxism, Communitarianism and Liberalism. It accepts the social nature of mankind and rejects the notion of political emancipation through proletariat revolution. The electoral system and multi-party system are embraced as the best means of protecting individual rights and freedoms. This way, the notion of government by the people and of the people is guaranteed. The interests of the broader community are promoted in two ways. On the one hand, economic, social and cultural rights are recognized and promoted through higher taxation and key public sectors – such as schools, transportation, insurance, media – are placed under ‘public’ control. This political model has been used for decades and continues to dominate politics in the Nordic countries, such as Sweden. This model tolerates the existence of rival political parties, such as Liberals, Leftists, extreme Right-wing parties and Christian Democrats. While the Social Democratic Party of Sweden is not as powerful as it used to be it is still the strongest of all the parties, and the dominance of social democratic ideas is such that even the rival parties do not dare to openly call for dismantling of the social benefits which Social Democracy has brought about. Interestingly, because Social Democracy has produced tangible results, the strategy which the populist parties use is to say that immigrants are threat to the nation and looting what is collected from the taxpayer. To put it crudely, their slogans are simple: ‘elect us and we will drive the alien looters out’. Not surprisingly, these kinds of emotionally appealing promises have enabled the Swedish Democrats (the Extreme Right) to get about 17% of the votes in the most recent election.

 Modern Democracy: Historical Evolution

The American and French revolutions created shock-waves among despotic leaders near and far and inspired hope among the victims of oppression. During the first decade of the 19th century the armies of Napoleon spread out over large parts of Europe, promising the fruits of the French Revolution to the inhabitants of the occupied territories. The leaders of the uprisings in European colonies of Central and South America took advantage of the occupation of Portugal and Spain by Napoleon to struggle for independence and start out on a new, democratic way of life. The louder and wider the drums of revolution, popular sovereignty and self-determination echoed, the more colonialism and despotism lost ground in the American hemisphere. European despots too were left with a choice between peaceful change and bloody uprisings.

Not surprisingly, constitutional proclamations upholding popular sovereignty started to make appearances in many places, even if what was promised and proclaimed was not always delivered. Article 49 of the May 17, 1814 constitution of the newly established state of Norway promised Norwegian citizens that the new order would place the legislative power in hands of their parliament (the Storting).[88] The Liberian Declaration of Independence of July 16, 1848 recognized the ‘inalienable rights’ of all men including “life, liberty, and the right to acquire, possess, enjoy, and defend property” and:

…to institute a government, and to choose and adopt that system, or form of it, which in their opinion will most effectively accomplish these objects, and secure their happiness, … to institute government and powers necessary to conduct it is an inalienable right and cannot be resisted without the grossest injustice.”[89]

Article 39 of the Mexican constitution of 1917 stated that “national sovereignty resides essentially and originally in the people. All public power originates in the people and is instituted for their benefit. The people at all times have the inalienable right to alter or modify their form of government”[90] Paragraph 1 of article 6 of the 1937 Irish constitution affirmed that:

“All powers of government, legislative, executive and judicial, derive, under God, from the people, whose right it is to designate the rulers of the State and, in final appeal, to decide all questions of national policy, according to the requirements of the common good.”[91]

In light of this there is no doubt that the notion of ‘the will of the people’ has been transformed to an important international principle by the end of World War I.This is not, by any means, to suggest that democratic governments were established everywhere or that the states which purported to be democratic were acting democratically. The point is made merely to underscore that popular sovereignty was increasingly invoked and formally acknowledged in the American hemisphere and in Europe including in Russia where a Communist form of governance had been proclaimed. The enjoyment of effective democracy, however, had to wait for several decades until the required institutions were fully developed and the citizens (including women) were empowered to exercise their democratic rights.

The notion of ‘the will of the people` received a face-lift when it was proposed for use as an international political norm by the victorious Allied Powers at the end of World War I. The intention behind this proposal was mainly to legitimize of the contours of the new political borders of Europe. This was to be done by asking some of the inhabitants of the frontier areas to choose between the bordering states they preferred to belong to. Speaking before the U.S. Congress, President Woodrow Wilson emphasized the significance of respecting the rights of every people to “be left free to determine its own polity, its own way of government” since “(N)o peace can last, or ought to last, which does not recognize and accept the principle that governments derive all their powers from the consent of the governed.”[92] This idea was endorsed by the British Labour party with regard to the occupied German and Ottoman territories.[93]

There is no doubt that the problems that emerged following World War I were ultimately settled according to the principle of ‘Might is Right’. Few would doubt that the political behavior of the Allied Powers, on both domestic and international planes, was hardly reconcilable with this noble idea of ‘the will of the people’. Nevertheless, by this time the concept of ‘will of the people’ had become popular and it was applied. albeit selectively, in border areas such as the Saar Basin, Upper Silesia, East Prussia, and Eupen and Malmedy by asking the inhabitants of these regions to indicate which states they wished be part of.[94] The inhabitants of these territories were not given the right to create separate states, or to have their own rule in the form of autonomy or self-administration. The principle of self-determination was applied in a restricted way.

The other innovative political development which occurred at this time was the establishment of the Mandate system. Under Article 22 of the Covenant of the League of Nations, the states that were awarded the administration of territories that were taken from Germany and the Ottoman Turks, were required to respect “the principle that the well-being and development of such peoples form a sacred trust of civilization”. The manner in which this obligation was discharged was supervised by the League of Nations.

The Evolution of Democracy as a Universal Legal Concept

The Mandates and Roles of the UN. More relevant to the present era is how the notion of democracy was developed by the United Nations as a legal concept of universal validity. This development came about after a long and twisted process of negotiations and international political cooperation. The mandates for being concerned with this subject-matter were enshrined in the UN Charter as purposes of this organization. According to Article 1 paragraph 3 they include the promotion of respect for human rights and finding solutions to international economic and social problems. Paragraph 2 of this same provision obliges the UN to promote the equal rights and self-determination of peoples as the basis for friendly relations among nations. Even if the word democracy is not explicitly mentioned in these provisions, it is obvious that the realization of these goals would further the process of democratization.

Before explaining the road-map used by the UN to promote democratic values, it is important to remember two things. Firstly, the UN does not have the power to adopt legally binding decisions, other than those that concern international peace and security. This is why its guidelines on the promotion of democracy are merely guidelines, unless they are embodied in legally binding instruments which are ratified by states. Example of this includes the right to take part in government which is recognized in article 25 of the international covenant on civil and political rights. Secondly, when it comes to the kinds of political systems which best promote democracy, the view of this organization is that it does not endorse any particular model. Whether this is stated merely for the sake of politeness to respect the Charter principle of state sovereignty, it is up to the reader to decide. What is equally obvious is that the UN is urging states to conduct themselves in accordance with the Human Rights-Based Approach, which suggests that this approach is the only acceptable method of promoting and measuring democracy in the absence of other acceptable apporaches.

The UN has been following two distinct ‘pathways’ to the promotion of democracy, one based on peoples’ rights and good governance and the second one based on human rights.[95] The former focuses on the collective dimensions of the rights of peoples (political communities)– i.e. democracy ‘from above’. The second approach focuses on how empowerment is to be promoted ‘from below’ by facilitating the exercise of rights by individuals and the members of some social groups. These two approaches are closely intertwined. Ignoring one or the other leads to a distorted understanding of how democracy, as a concept, is perceived by the UN. In the following section we will sketch the legal background for the UN’s promotion of both peoples’ rights and human rights. The significance of these legal frameworks for democracy will be explored in more detail later. 

The Rights of Peoples: The UN developed the rights of peoples because its purposes include promoting “friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples” (art. 1(2) emphasis added). Article 55 lists the conditions which are necessary for achieving stability based on people’s rights. These include respect for human rights, and the promotion of economic and social development and other collective interests of the community. In Articles 73 and 76, this instrument addresses the rights of peoples inhabiting non-self-governing territories. All these references to the rights of peoples has evidently transformed the notion of ‘people’, which was earlier vague and an ideologically contested political concept, to a universally applicable legal concept with practical implications.

The UN Charter has not defined the concept of ‘people’. Nor has it listed all the rights peoples have. However, it is apparent that its drafters took care to ensure that issues related to democracy were not left out altogether. For example, its preambles start with the words “We the peoples of the United Nations” and ends by stating that it is these peoples of the world “through representatives assembled in the city of San Francisco, who have exhibited their full powers … (and established) … the United Nations.” Although many of the governments that were assembled to establish this organization in 1945 were not democratic, the form of the words used in the Charter sends a clear signal that states should belong to their peoples and not to the rulers. This implies the illegitimacy of despotism: a clear signal to despotic rulers that the UN would not tolerate the conducts of rulers who say, “I am the State” or “The State, That’s me”, as Louis XVI of France is supposed to have stated.

Using the mandates given to it by its Charter to promote friendly relations among nations based on respect for people’s rights(art. 1(2)), human rights and development (art. 1(3)), the UN wasted very little time in clarifying the road-map that should be followed. The first bold step was taken in 1948 when it adopted Universal Declaration of Human Rights setting out the civil, political, economic, social and cultural rights of the individual. Article 21 of this Declaration specifies the role of democracy in guaranteeing human rights. According to the 3rd paragraph of this provision, “(T)he will of the peoples hall be the basis of the authority of government” (emphasis added) and “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.”  The first two operative paragraphs of this provision deal with the rights of the citizen “to take part in the government of his country, directly or through freely chosen representatives” and to “equal access to public service”.

Leaving this implicit endorsement of democracy aside, group rights, such as minority or indigenous rights and the rights of peoples to self-determination were left out from the Universal Declaration of Human Rights.[96] Because of this the states that were disappointed by this omission wasted no time in mobilizing in defense of the rights of peoples. Since these states were in the majority, they were able to muster the necessary votes to recognize the right to self-determination as a human right[97] and to include this right in the two draft covenants on human rights which were prepared following the adoption of the Universal Declaration on Human Rights.[98] Henceforth, peoples’ rights were to be treated not only as human rights but also as a pre-requisite for the effective enjoyment of human rights.[99]

Bearing this in mind, as well as the pledges given by the colonial powers under article 73 and 76 of the Charter to respect the rights of the peoples of the dependent territories, including their “their political, economic, social, and educational advancement” and “self-government” (art. 73) or independence (art. 76) the UN pressed these powers to deliver on their pledges. When they dragged their feet, the General Assembly adopted, on 14 December 1960, the Declaration on the Granting of Independence to Colonial Countries and Peoples. The rest is history: colonialism was progressively dismantled, overseen by the Decolonization Committee, a process which led to the gradual advancement of democracy.

In the decades that followed, the UN adopted important instruments re-affirming and elaborating the different rights of peoples, including their right to social progress and development, to sovereignty over natural resources and wealth, etc. The adoption and coming into force of the International Covenant on Civil and Political Rights and the Covenant on Economic, Social and Cultural Rights further affirmed the validity and significance of human rights and peoples’ rights.  Monitoring bodies were set up to assess the compliance with the provisions of these Covenants by the states that had ratified them. Of special importance to democracy is the acknowledgement made in paragraph 1 of article 1 of these two covenants that:

All peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.”

This provision acknowledges the political, economic, social and cultural dimensions of the rights which peoples have. The exercise of the political rights entitles a people, i.e., an internationally recognized political community or public family, to decide what the international political status of its country should be, e.g. to be independent, to be united with other political entities, or to be associated in different ways. In addition, a people is also said to have the right to manage its domestic affairs by freely pursuing its economic, social and cultural development. How this is done is left to each people and its state. However, it is interesting to note, in this regard, that article 55 of the Charter considers the promotion of “higher standards of living, full employment, and conditions of economic and social progress and development” as being essential for the realization of the rights of peoples. The UN is obliged by this provision to promote these goals, and members states have given their pledge to cooperate with these efforts, in accordance with article 56 of the Charter.

International Human Rights Law. The 1945 UN Charter reaffirms that all human beings have dignity and worth. It also made the promotion of human rights and freedom sone of its basic purposes. Proceeding from these premises the UN acknowledged, in 1948 the legitimacy of civil, political, economic, social and cultural rights when it adopted the Universal Declaration of Human Rights. The unique contribution which this document has brought to the discourse on human rights and democracy are highlighted by six key points of interest.

First, the declaration recognizes, in the third preamble, that “human rights should be protected by the rule of law” to avoid rebellion against oppression and tyrannical rule. This statement slams the door on the Hobbesian model of governance. Second, it articulates rights and freedoms by individualizing them (as the rights of individuals) as desired by Liberals and Libertarians. Third, it identifies the civil and political rights necessary for establishing and sustaining democratic governance, e.g., the rights to the freedom of expression, assembly, association and political participation. Fourth, it sets out the economic, social and cultural rights which good governance should promote – i.e. the entitlement to work, health, education, an adequate standard of living, etc. Fifth, in article 29, it accepts the positions of collectivists concerning the importance of subordinating individual rights and freedoms to the interests of the community. This provision makes it clear that individual rights can be restricted as “determined by law 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”. At the same time, it acknowledges that the individual beneficiary of human rights “has duties to the community in which the free and full development of his personality is possible”. Last but not least, as pointed out earlier, this Declaration requires that the authority of governments should be based on “the will of the people”, which “shall be expressed in periodic and genuine elections”.

When the Universal Declaration on Human Rights was adopted no state voted against it. This was because its contents were formulated after considerable negotiations and because it was understood that it was not intended to be legally binding, but merely to set a “common standard of achievement for all peoples and nations” as indicated in the last paragraph of the preamble of the Declaration. As stated in article 10 of the UN Charter, the General Assembly has no power to adopt binding instruments. Still, there were six Socialist states, Saudi Arabia and South Africa abstained and two were absent during the voting (Yemen and Honduras). The Soviet Union and its allies did not support it consistent with the opposition of Marx to ‘the rights of man’. The racist regime of South Africa and conservative Saudi Arabia had ideological reasons for refraining to give their support since both did not believe that all the members of their communities should be allowed to participate in politics. This is not to say that the domestic features of the other states who voted in favor of the declaration were fully in line with what required by the Universal Declaration of Human Rights. It is simply to explain what ‘compelled’ those states that chose to abstain to do so.

After the adoption of the Universal Declaration on Human Rights, the UN turned its attention to the preparation of legally binding covenants. On 5 February 1952 the UN General Assembly adopted resolution 543 (VI) requesting the Economic and Social Council to instruct the Commission on Human Rights to draft two separate covenants for subsequent adoption by the General Assembly. One was to deal with civil and political rights and the other with economic, social and cultural rights. During the drafting process the ideologically charged controversies relating to the validity of economic, social and cultural rights once again became the focus of intense debates. When it became clear that these were leading nowhere,  the General Assembly stepped in to break the deadlock by asking the Economic and Social Council to instruct the Commission on Human Rights (the drafting body) to acknowledge that “when deprived of economic, social and cultural rights, man does not represent the human person whom the Universal Declaration regards as the ideal of the free man”.[100]

Bearing this in mind, the Human Rights Commission was required to “include in the draft Covenant a clear expression of economic, social and cultural rights in a manner which relates them to civic and political rights and freedoms.”[101] The Commission complied with this, which is why we now find, in the third preamble of both these covenants, an identical provision acknowledging that:

the ideal of free human beings enjoying civil and political freedom and freedom from fear and want can only be achieved if conditions are created whereby everyone may enjoy his civil and political rights, as well as his economic, social and cultural rights

Ever since then, the inseparability of the linkage between civil and political and economic, social and cultural rights has been continually re-affirmed by the international community. In the 1968 Tehran Declaration, which was adopted on the twentieth anniversary of the adoption of the Universal Declaration of Human Rights, the General Assembly made it clear that:

Since human rights and fundamental freedoms are indivisible, the full realization of civil and political rights without the enjoyment of economic, social and cultural rights is impossible. The achievement of lasting progress in the implementation of human rights is dependent upon sound and effective national and international policies of economic and social development”.[102]

This formulation was slightly reformulated gradually, when the General Assembly adopted the 1993 Vienna Declaration and Programme of Action, by stating:

All human rights are universal, indivisible and interdependent and interrelated. The international community must treat human rights globally in a fair and equal manner, on the same footing, and with the same emphasis.”[103]

After the two international covenants were adopted by General Assembly resolution 2200 A (XXI) on 16 December 1966, and came to force in 1976, the stage was set for the emergence of many other human rights conventions. Some of these subsequent conventions provide protection for the members of the different vulnerable groups (e.g., children, women, those with disabilities, migrant workers, indigenous peoples and those belonging to minorities) by contextualizing the complex realities obstructing their enjoyment of rights on an equal basis with others. The international regime of human rights which is now in place has been further enriched by the practices of the international monitoring bodies of the UN, the treaty committees, those of specialized agencies (e.g., the International Labour Organization and UNESCO) and the regional organizations (e.g., the Council of Europe, the African Union, the Organization of American States, etc.).

These developments have been warmly welcomed by progressive states and non-state actors who are committed to the defense of human rights, as positive steps towards the creation of a human rights-sensitive just global order. However, because the existing international monitoring systems have obvious weaknesses, pressure to further develop these mechanisms have been growing. In response to these concerns, the UN has gradually developed its Human Rights-Based Approach to be used as a normative conceptual framework to assess and promote compliance with international standards for human rights. Since the UN considers that the progress that is made towards developing human rights is irreversible, it started to use this HRBA for assessing how states are conducting themselves in human rights sensitive matters, including when it comes to promoting democratic values.

The Human Rights-Based Approach and Democracy

Linking Human Rights to Political Conduct: the Earlier Experiment

It may well be asked whether governments will permit the international organizations such as the UN to assess their conduct under the lens of human rights. Can the international requirements to comply with human rights standards and the principles of social justice really shape the conduct of political actors? This is not a new question. It was raised as far back as 1919 in the preamble of the International Labour Organization, which clarifies why this organization was established:

Whereas universal and lasting peace can be established only if it is based upon social justice. And whereas conditions of labour exist involving such injustice, hardship and privation to large numbers of people as to produce unrest so great that the peace and harmony of the world are imperiled; and an improvement of those conditions is urgently required … The High Contracting Parties, moved by sentiments of justice and humanity as well as by the desire to secure the permanent peace of the world, and with a view to attaining the objectives set forth in this Preamble, agree to the following Constitution of the International Labour Organization.”

It may seem puzzling that states of this period, especially the colonial powers, agreed to the establishment of such an organization, committed to the promotion of social justice. The explanation lies in the timing: the ILO was set up in the aftermath of the 1917 Bolshevik Revolution in Russia, when fears of the spill-over effects of this Revolution were real. The establishment of a communist regime in the USSR was justified as a response to the grievances of Russian workers against capitalism; and it seemed all too likely that workers in Western capitalist states would do the same. Added to this was the exhaustion of the Western powers after the First World War (1914-1918), leaving them with little alternative but to seek to establish more sustainable norms of political behaviour, based on humane values.

Unfortunately, this enterprise was not founded on solid grounds. The League of Nations which was established at the time to maintain international peace and security was not equipped with the legal and political mandates necessary to create a political order based on human rights. Instead, the League was used to protect the hegemonic interests of the rival big powers, including by preserving their spheres of colonial domination. An international organization which protects an unjust political order cannot survive and it soon became clear that the next annexationist wars were just around the corner.

The establishment of the UN brought about a unique situation which favoured the establishment of a more just order based on the promotion of human rights. The states which joined hands to create this organization made clear their determination, as stated in the preambles of the UN Charter that they are committed:

to save succeeding generations from the scourge of war…

to reaffirm faith in fundamental human rights.…

to establish conditions under which justice … can be maintained, and

to promote social progress and better standards of life in larger freedom”.

The‘peoples of the world’ were thus promised an international order that would take issues related to human rights and justice seriously. To this end, the UN was given a clear mandate to promote the self-determination of peoples and universal human rights, as provided by article 1 of the Charter, bearing in mind the need for settling international disputes “in conformity with the principles of justice and international law”. The regime of human rights that was developed subsequently was based on the understanding that its operation should not contravene the principles of state sovereignty and non-intervention. The ratification of the human rights instruments is left up to each state, although this would be monitored by the international bodies that are created for this purpose. If states ratify these human rights instruments they are not at liberty to disregard the undertakings assumed thereunder. If they do, violations of human rights are seen as an essentially international concern, warranting the legitimate responses in accordance with the seriousness of the case.

It goes without saying, therefore, that states which have assumed international human rights obligations are required to conduct themselves as required by the ratified instruments. This means they should follow a human rights-based approach when pursuing their political objectives. The idea of empowering the UN to monitor how this approach was pursued was resisted during the Cold War by the ardent defenders of state sovereignty, such as the U.S.S.R. and its allies, since they were suspicious of the political intentions of the Western Powers. The states which are not as economically developed and politically stable as those in the West also feared that this approach could be easily exploited to undermine state sovereignty in the pretext of addressing human rights violations. When the Soviet Bloc collapsed, resistance to the use of this human rights-based approach by the UN started to crumble. The Western powers too started to pressure these weaker states to embrace this approach, if they are to participate in Western-led globalization. This basically meant they were required to respect human rights as perceived by Liberalism.

The UN Human Rights-Based Approach

As the Soviet Union and its allies became weaker towards the end of the 1980s, the Western powers, political activists, non-governmental organizations and units within the UN wasted no time in making sure that a human rights-based approach to development should be incorporated into the UN system. The basic idea was to use this approach by making human rights a cross-cutting and pivotal factor for all states and agencies involved in formulating policies and pursuing and assessing development programs.  As UNICEF put it:

“A human rights-based approach is a conceptual framework for the process of human development that is normatively based on international human rights standards and operationally directed to promoting and protecting human rights.”[104]

This approach, as its proponents see it, ensures further consolidations of progress achieved in developing the regime of human rights, since the excuses which are commonly made to disregard human rights in the pretext of development will no longer be tolerated. After all, in article 1 (1) of the 1986 Declaration on the Right to Development, development has already recognized the right to development as:

“an inalienable human right by virtue of which every human person and all peoples are entitled to participate in, contribute to, and enjoy economic, social, cultural and political development, in which all human rights and fundamental freedoms can be fully realized.”

This means, when states design and implement their development plans, programs and activities, the human being should be “the central subject of development and should be the active participant and beneficiary of the right to development” (art. 2(1)). The human being should not be used as a tool for development.

One of the driving forces behind this promotion of human development is the United Nations Development Programme (UNDP), which published its first Human Development Report in 1990. Thereafter, the seeds of the HRBA began to be sown in the different international conferences that were arranged by the UN. The 1992 Rio Declaration on environment and development urged states to put human beings at the center of ‘sustainable development” and to enhance the participation of women and indigenous peoples in the development process.[105] The 1993 Vienna Declaration and Programme of Action reaffirmed “the right to development, as established in the Declaration on the Right to Development, as a universal and inalienable right and an integral part of fundamental human rights.”[106] Article 16 of the 1995 Fourth World Conference on Women in Beijing called for the promotion of:

sustained economic growth, social development, environmental protection and social justice (which) requires the involvement of women in economic and social development, equal opportunities and the full and equal participation of women and men as agents and beneficiaries of people-centred sustainable development”.

That same year the World Summit for Social Development underscored, in article 66, the importance of pursuing a policy of social integration by enabling the individual to play an active role in the process, and added that:

Such an inclusive society must be based on respect for all human rights and fundamental freedoms, cultural and religious diversity, social justice and the special needs of vulnerable and disadvantaged groups, democratic participation and the rule of law”.

Shortly thereafter, A UN Programme for Reform was launched, in order to inspire UN-affiliated entities “to mainstream human rights into their various activities and programmes within the framework of their respective mandates.”[107] The idea behind this was to design a commonly agreed upon, right-based approach model for use by UN agencies, funds and programmes. The task was initially left to the UN Interagency Workshop on a Human Rights Based Approach, which met from 3 to 5 May 2003. This gradually led to the formulation of a “Common Understanding”, which was subsequently endorsed by the 2005 World Summit, giving HRBA official political legitimacy, thereby paving the road for “developing concrete tools, instruments and processes … [and] coordinated system-wide actions in those areas.”[108]

In the context of development, there are two basic requirements for compliance with HRBA. First, the goals of development policies, strategies, programs, activities, technical assistance and co-operation should always further human rights, as laid down in the Universal Declaration of Human Rights and other international human rights instruments. This means that the human rights standards contained in these instruments should guide development programming and cooperation in all sectors and in all phases of the development processes. Second, these development processes and cooperation should contribute to strengthening the capacities of the ‘rights-holders’ to claim their rights and the ‘duty-bearers’ to comply with their human rights obligations. This requires appreciating five key points: i. the universality of human rights, so that all human beings are in a position to exercise their rights; ii. the inalienable nature of human rights, which means that they cannot be abandoned; iii. The indivisibility, inter-dependent and inter-relatedness of civil, political, economic, social and cultural rights, without prioritizing one over the other; iv. The promotion of equal rights by combating all forms of discrimination, e.g. by ensuring inclusion and participation; and v. respect for the rule of law and the principle of accountability.[109]

When applied to the real world what this means is that development should be understood in human terms, as a means of safeguarding the dignity and worth of the human being, for the benefit and empowerment of all the right-holders without discrimination based on sex, age, linguistic, religious and other factors. This requires compliance by States with the obligations which they have assumed under the different international human rights instruments, including those protecting the members of vulnerable groups, such as children, women, migrant workers, persons with disabilities and those who belong to minorities and indigenous groups.

It is important to recognize that this HRBA is not legally binding or free from controversy. Its starting point which considers human rights as inter-related, interdependent and interconnected, as recognized in the Universal Declaration of Human Rights, is questioned by some states who have intentionally avoided from ratifying the covenant on civil and political rights or the covenant on economic and social rights, or some of the conventions which protect vulnerable groups. The principle of state sovereignty, which is recognized in paragraph 1 of article 2 of the UN Charter permits states to ratify or not to ratify the human rights instruments and to make reservations on the instruments they wish to ratify. As elaborated in principles 3 and 4 of the 1970 UN Declaration on Principles of International Law Concerning Friendly Relations and Cooperation among States the principle of sovereignty it also entails non-intervention in what is essentially a domestic matter. “Every State” under this declaration, “has an inalienable right to choose its political, economic, social and cultural systems, without interference in any form by another State.”

States that lag behind in economic development see the HRBA with suspicion because it can be used to stifle their development efforts by making allegations about human rights abuses. These states, especially those with marginalized and neglected multi-ethnic and multi-national groups, claim that they have inherited unjust economic, social and political structures from their colonial past. As they see it, there is no quick-fix to achieve development without making sacrifices. Without rapid economic development, human rights cannot be effectively realized and enjoyed by all on equal basis. These states, therefore, appear to be caught in a vicious circle with no easy escape from the traps of underdevelopment.

Under these circumstances, as governments of these developing countries see it, prioritizing HRBA will not only frustrate the efforts which they are making to develop, but could even be used to de-legitimize these governments themselves and in the end weaken their states. The developed states do not have this problem because they are already developed – and mostly by sacrificing human rights. A case in point is the way the industrialized states in north America and the Western Europe were able to develop during the past centuries by benefiting from slavery and colonial subjugation. The point here is not to say that the developing countries should do what the developed ones have done, but to underscore the point that giving veto power to individuals and local groups on the pretext of human rights, e.g. when attention is turned to the construction of dams, railroads or highways, the large-scale development of agriculture and the exploitation of minerals, etc. runs the risk of arresting national development efforts.

Leaving behind these controversies surrounding HRBA, UN bodies, human rights monitors, donors, NGOs and an increasing number of states now use of this tool for evaluation of development policies, and to make sure that rights-holders are claiming their rights. UNDP relies on HRBA for assessing the success of development efforts of states in promoting sustainable human development and tackling inequalities and discrimination. Donor agencies use it to see how their development aid benefits the local populations on the ground. UNICEF uses it to assess the extent to which the welfare of children is being protected in accordance with the Convention on the Rights of the Child. Likewise, WHO uses HRBA to assess health service provision for children, compliance with the health service provision for women as required by the Convention on the Elimination of Discrimination against Women, and accessibility and acceptability of food, water, clothing and shelter to populations at large as required by articles 11 and 12 of the Covenant on Economic, Social and Cultural Rights.

At the same time as the HRBA is monitored from above by UN bodies, specialized agencies, donors and states, the UN was also making efforts to empower beneficiaries and defenders of human rights to apply HRBA from below. These efforts culminated in 1998 in the adoption of the “Declaration on the Right and Responsibility of Individuals, Groups and Organs of Society to Promote and Protect Universally Recognized Human Rights and Fundamental Freedoms” (better known as the Declaration on Human Rights Defenders). This instrument sets out how the voices of the beneficiaries and defenders of human rights should be respected and promoted in the debates on human rights. “Individuals, groups, institutions and non-governmental organizations”, states article 18, “have an important role to play and a responsibility in safeguarding democracy, promoting human rights and fundamental freedoms and contributing to the promotion and advancement of democratic societies, institutions and processes.”

The different provisions of this declaration underscore the roles which states should play in supporting human rights activities. More specifically, it defends the rights of individuals and groups “to promote and strive for the protection and realization of human rights at the national and international levels” (art. 1). These activities include the rights “to know, seek, obtain, receive and hold information about human rights” (art. 6(a)), to meet, assemble and participate in associations, to form non-governmental organizations, and to communicate with international organizations and NGOs (art. 5) and to engage in public awareness campaigns (art. 6(b) & (c) & 16). Further, the declaration affirms the rights of individuals and groups to solicit resources for their human rights activities (art. 13), to engage in peaceful activities (art. 12), to obtain effective remedies for the rights that are violated (art. 9(1)) and to approach governmental bodies and agencies to express criticism and propose improvements (art. 8).

Shortly after this declaration was adopted by the UN General Assembly, the Human Rights Commission also began highlighting the kinds of measures which states should take to promote democracy. These included respecting human rights in general, but also in particular political rights, such as the freedoms of expression, assembly and association (for example by allowing multiple political parties), and the right to participate in the government. Furthermore, states were urged to strengthen their electoral systems (by ensuring universal suffrage), to guarantee the impartiality of the judiciary, promote a pluralistic and independent media, ensure respect for the rule of law, and enhance the transparency and the accountability of government.[110] Support was also given by UN offices and programs to national and local initiatives to empower women, to strengthen human rights institutions, to safeguard the independence of the media and develop policies and laws promoting freedoms of expression, association and assembly.[111] All these measures were are necessary for the promotion of democracy.

The Human Rights-Based Approach to Democracy – The Group Rights Lenses

Collectivists, such as Socialists and Communitarians, and most of the defenders of state sovereignty prefer to see the UN focus on collective rights (and state sovereignty) when applying HRBA to promote and measure democracy. It is evident that HRBA is currently used mainly to check on the extent to which countries respect and promote individual rights and freedoms, as preferred by Liberals and Libertarians. Having said this, it would be a mistake to assume that the international regime of human rights has entirely abandoned the collectivist approach, especially how peoples’ rights are promoted. The UN has been promoting empowerment both from below (by promoting individual rights) and from above (by promoting the rights of peoples) to further the processes of democratization.

The UN assumed its mandate to promote the rights of peoples on the basis of articles 1(2), 73 and 76 of its Charter. The earlier moves of this organization to promote the rights of peoples were aimed at facilitating the decolonization of the non-self-governing territories. This was achieved by following two separate approaches. On the one hand, the UN monitored compliance by administrators of colonial territories with their human rights obligations under articles 73 and 76 of the UN Charter, which had both collective and individual dimensions. On the other hand, this organization was promoting ‘friendly relations among nations based on the principle of equal rights and self-determination of peoples’ as provided by paragraph 2 of article 1 of the Charter. The latter, in essence, concerns promoting the rights of political entities (i.e. the dependent nations) and their relations with the administering powers. Operative paragraph 3 of General Assembly resolution 637 A (VII) 16 December 1952 encapsulates how these two approaches were used to achieve the same goal of ending colonialism. This provision provided that:

“The States Members of the United Nations responsible for the administration of Non-Self-Governing and Trust Territories shall take practical steps, pending the realization of the right of self-determination and in preparation thereof, to ensure the direct participation of the indigenous populations in the legislative and executive organs of government of those Territories, and to prepare them for complete self-government or independence.”

Frustrated by the consistent demands of the UN General Assembly calling for the speeding up of the process of democratization in the non-self-governing territories, the colonial powers questioned the legal basis for these kinds of “interventions” by the UN, since they considered these questions as internal matters. At one point they even refused to send the reports to the UN as required under article 73 of the Charter. If the UN was to proceed with this manner of ‘intervention’, it was argued, then other independent states too should do the same by speeding up the process of democratization within their realms e.g., by empowering minorities and indigenous groups. This political campaign was led by Belgium using the formula which was known at that time as ‘the Belgian thesis’. The idea was to broaden the obligations mentioned in articles 73 and 76 of the Charter to all the UN members to promote self-government for all their minorities and indigenous tribes.[112] This idea was dismissed by the anti-colonial camp as an effort to meddle in the internal matters of independent states, by confusing internal and international issues, thereby distorting the purposes of articles 73 and 76 (the so-called colonial provisions).[113]

One of the arguments used by the colonial powers to reject the promotion of human rights, democracy and self-determination in their colonial territories was that the word self-determination is not mentioned in articles 73 and 76. The General Assembly responded by recognizing the right of peoples to self-determination as a human right, by resolution 421 D(V) of 4 December 1950. On 5 February 1952, the General Assembly went a step further by adopting resolution 545 (VI) which requires an article which deals with this right to be inserted in the international covenants that were being drafted. The colonial states, backed by most other Western states, rejected this by raising the familiar Liberal argument that the right of peoples to self-determination was a group right and not individual human right and therefore cannot be accepted as a human right. Even if the UN was to proceed with this idea, they argued, it would be difficult to apply it because it was difficult to define who the right-holders (i.e. the ‘peoples’) were.

The General Assembly justified its own moves by underlining that this right to self-determination was already recognized in paragraph 2 of article 1 of the UN Charter. Moreover, the UN would continue to promote this right throughout the dependent territories since they had international status and were not simply internal matters of the colonial powers. When the colonial powers refused to cooperate in dismantling their colonial rule based on the principle of the ‘will of the people’, the General Assembly adopted, in 1960, its Declaration on the Granting of Independence to Colonial Countries and Peoples. This was followed by the creation of its Decolonization Committee to speed up the demise of colonialism. The rest is the story of how around seventy per cent of the population of the world was set free from the yoke of colonialism. This was an important step forward for democracy.

The UN Charter recognizes the principle of equal rights and self-determination of peoples and the two international covenants acknowledge the rights of “all peoples” to self-determination. Bearing this in mind, the UN has not refrained from expressing concern over how the principle of self-determination is respected even inside independent states. For instance, it will be recalled that this organization refused to recognize the credentials South Africa’s Apartheid regime, as the legitimate representative of the people of South Africa and had imposed economic and arm embargoes on it. The UN Security Council has denounced the overthrown of the legitimate ruler of Haiti, President Jean-Bertrand Aristide, in 1991 (resolution 940) and the military take-over in the Fiji in 2006 (resolution 8893). This organization has also called for free and fair elections in many countries that were plagued by conflict, as in the case of the conflict in Rwanda in 1993 (resolution 872), the D. R. Congo, in 1999 (resolution S/RES/12134), Sierra Leone in 2002 (resolution 1389), Liberia in 2003 (resolution 1509) and Burundi in 2016 (resolution 2303). As the UN homepage on democracy indicates, only after the end of the Cold War, this organization “has provided various forms of electoral assistance to more than 100 countries — including advisory services, logistics, training, civic education, computer applications and short-term observation”. All these concerns and efforts are intended to promote democracy inside independent countries.

How states conduct themselves when respecting and promoting the rights of people also continues to be of concern to the UN. Proceeding from this premise, the UN has continued to adopt important declarations which elaborate the different rights of all peoples. Examples include the rights to social progress and development[114], on sovereignty over natural resources and wealth[115], and the right to development.[116] In all these instruments attention is drawn to ‘peoples’ rights’ and how the needs of the members of these political communities are to be met. It is important to recognize, in this respect, that unlike the right to self-determination, which is affirmed by the two legally binding covenants, most of above-mentioned rights are mentioned in declarations which are not binding and only set guidelines.

Equally important to note when it comes to how the UN promotes democracy are the steps taken to promote the rights of the rights of persons belonging to minorities and indigenous groups. In 1992, this organization adopted the Declaration on the Rights of Persons Belonging to National, Ethnic, and Religious Minorities.[117] Although this declaration takes an individualized approach to minority rights it also acknowledges that the rights that are recognized can be exercised collectively. In 2007 the UN adopted the Declaration on the Rights of Indigenous Peoples. This instrument defends both the individual and group rights of these communities. In effect, this latter instrument which promotes the rights of ‘indigenous peoples’ follows the ‘Belgian thesis’ which was defended in the late 1940s and early 1950s. At the time Belgian was calling for expanding the obligations assumed by the Colonial Powers in relation to articles 73 and 76 to encompass all states.

The 2007 Indigenous Declaration acknowledges that indigenous peoples have the right to internal self-determination in the form of self-government or autonomy[118] and calls for the protection of  their laws, cultures, traditions, languages, institutions, traditional medicines and land rights.[119] This instrument will clearly empower the members of the indigenous communities, as well as indigenous groups as entities, to pursue their own economic, social and cultural development. To stimulate this process the UN established a Forum for Indigenous Peoples inside the UN, for networking among representatives of indigenous peoples and to facilitate discussion of issues of interest to them with one another and with others. It has also appointed a Special Rapporteur to monitor their human rights.

The approach used by the UN to empower indigenous groups introduces an interesting question into the debate on the promotion of democracy, since minorities are not afforded similar group rights, for example to autonomy, self-government, and right to develop their own languages and cultures. It is to be recalled that when the Covenant on Civil and Political Rights were being prepared, the U.S.S.R. and Yugoslav both tabled draft resolutions calling for the recognition of the collective rights of minorities. The U.S.S.R.’s resolution defined these rights as follows:

The State shall ensure to national minorities the right to use their native tongue and to possess their national schools, libraries, museums and other cultural and educational institutions[120]

This idea was not accepted. Instead the formula that was agreed upon for minority rights focused on the right individuals not to be denied access to these benefits, as set out in article 27 of the Covenant on Civil and Political rights:

In those States in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practise their own religion, or to use their own language.”

This defective formulation was widely criticized later by the defenders of minority rights as being insufficient and vague. To remedy this, the 1992 declaration on the rights of minorities affirmed that persons belonging to ethnic, linguistic, religious or national minorities “have the right to enjoy their own culture, to profess and practise their own religion, and to use their own language” (art. 2). It also calls upon states to “encourage conditions for the promotion of that identity” (art. 1) rather than allowing the right-holder to do this. As set out in paragraph 2 of article 4:  “States shall take measures to create favourable conditions to enable persons belonging to minorities to express their characteristics and to develop their culture, language, religion, traditions and customs, except where specific practices are in violation of national law and contrary to international standards.”

These formulas of promoting group rights and responding to their needs can be seen as positive steps in the promotion of empowerment and democracy. However, most states are wary of advancing the agenda of minority rights because of the fear that this could lead to ethnic-based rivalry and local nationalism, threatening national unity. In a worst-case scenario, they fear, this could tear apart their state. The indigenous question was seen differently because most states deny having such groups and argue that they exist only in states where the descendants of the European settlers have established states outside Europe, e.g. in Australia, New Zealand and the Americas.

The Human Rights-Based Approach to Democracy: The Civil and Political Rights Lenses

The Content of Civil and Political Rights. In the view of most of the defenders of normative individualism, democracy should only be measured with reference to individual civil and political rights and how these are respected and promoted. Before examining how these lenses works, it is necessary to explore the contents of these rights as set out in the Universal Declaration of Human Rights and more importantly in legally binding International Covenant on Civil and Political Rights (CCPR). This latter instrument has been ratified by 172 states. Both these instruments list the civil and political rights which are derived “from the inherent dignity of the human person”. According to the covenant on civil and political rights, what are acknowledged include the protection of life (art. 6), privacy (art. 17), family (art. 23), protection from slavery, forced labor and servitude (art. 8), from torture and similar cruel and inhuman punishment or treatment (art. 7), from arbitrary arrest (art. 9), and from punishment through retroactive application of laws (art.15). This covenant also acknowledges the rights to freedoms of religion (art. 18), expression (art. 19), assembly (21) and association (art. 22), as well as the right to take part in the conduct of public affairs in one’s own country through direct elections or through representation by using the voting systems and access to public services (art. 25).

The manner in which these rights are framed in this Covenant makes it clear that most of them are subject to limitations. For instance, the freedoms of assembly and association may be restricted if this is “necessary in a democratic society in the interests of national security or public safety, public order, the protection of public health or morals or the protection of the rights and freedoms of others” (art. 21 and 22(2) respectively). The exercise of religious freedom can be restricted by law when it is necessary “to protect public safety, order, health, or morals or the fundamental rights and freedoms of others.” (art. 18(3)). Freedom of expression entails recognizing “duties and responsibilities” and can be restricted to protect “national security or of public order, or public health or morals” or to ensure respect for “the rights or reputations of others” (art. 19(3)(a) & (b)). What is more:

Any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law.” (art. 20 (2))

There are very few rights which should not be subject to restriction. They are listed in article 4 of the Covenant. They include the protection of life, protection from slavery, torture, cruel and inhuman treatment and punishment, immunity from double jeopardy and from imprisonment for not fulfilling contractual obligations, recognition of the person by law, and religious freedom in principle (articles 6, 7, 8 (I & 2), 11, 15, 16 and 18). Freedoms are recognized in a manner that makes them limitable. The grounds for restricting them are recognized by the regime of rights. This is why we speak of ‘the right to the freedom of expression or assembly or movement or religion. This is also why the political world chose the expression human rights rather than human freedoms as the title of the regime of rights. This suggests that the Libertarian position which calls for rights to be based on freedoms has been rejected since it is the regime of right which determines which freedoms are to be accepted as legitimate and how they should be exercised or not exercised.

Linking Civil and Political Rights to Democracy: Democracy is obviously inconceivable without civil and political rights. The notions of ‘the will of the people’, ‘popular sovereignty’ or ‘government by the people, of the people and for the people’, all lose their meaning without civil and political rights. If there is no protection of life or security, if liberty and equality are disregarded democracy will only have symbolic importance. To establish and sustain democracy it will be necessary to freely express opinions, by collecting the necessary information and distributing them to the other members of the society, to associate with one another (through the formation of political parties or associations) and to assemble to discuss political issues of interest. It is only when these political rights are respected and promoted that the members of the national community are able to manifest their will in choice of who should govern – i.e. by casting their votes, without constraint and discrimination, in free and fair elections.

In short, it is the effective exercise of civil and political rights which creates the conditions for empowering the citizens, to be able to choose their government, and to monitor how public affairs are conducted by their government. This way, the wishes of the citizens could be heard from within by tolerating inclusiveness in decision-making processes. This paves the road to the emergence of ‘government by the people, of the people and for the people’ and popular sovereignty. If the government does not operate in transparent ways by responding to the needs and desires of the people, then democracy is a sham. This is why the acknowledgement of “the will of the people” as the basis for government, in article 21 of the Universal Declaration of Human Rights, has been described as not just a revolution but “a ‘revolution within a revolution’”.[121]

One of the cornerstones of democracy, which is acknowledged in article 26 of the Covenant on Civil and Political Right, is the notion of equal rights and non-discrimination. According to this provision:

All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.”

This principle is well anchored in this covenant. Under article 2 (1) of this instrument, the states parties to this Covenant have assumed the obligation “to respect and to ensure” all the civil and political rights that are mentioned therein “without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status”. Article 3 of this covenant also requires ratifying states to “…ensure the equal right of men and women to the enjoyment of all civil and political rights”.

The other democratic value that is acknowledged in the covenant on civil and political rights is the idea inclusiveness, which should be achieved through participation in political processes. This idea follows from paragraph 3 of article 21 of the Universal Declaration on Human Rights which considers “the will of the people” as the basis for “the authority of government” and calls for the use of “periodic and genuine elections … based on universal and equal suffrage .. or by equivalent free voting procedures”. The first paragraph of this same provision acknowledges the importance of ensuring participation in government “directly or through freely chosen representatives” with “equal access to public service in (one’s own) country”. This idea is re-affirmed in article 25 of the covenant on civil and political rights which acknowledges the citizen’s rights to:

(a) To take part in the conduct of public affairs, directly or through freely chosen representatives;

(b) To vote and to be elected at genuine periodic elections which shall be by universal and equal suffrage and shall be held by secret ballot, guaranteeing the free expression of the will of the electors;

(c) To have access, on general terms of equality, to public service in his country.”

The universal validity of this political right is evident from the wider acceptance it has received under many other human rights conventions which prohibit various forms of discrimination that imposes limits on political participation. For instance, paragraph C of article 4 of the Convention on the Elimination of Racial Discrimination calls for the elimination of racial discrimination affecting the exercise of “(P)olitical rights, in particular the right to participate in elections— to vote and to stand for election—on the basis of universal and equal suffrage, to take part in the Government as well as in the conduct of public affairs at any level and to have equal access to public service”. Article 7 of the Convention on the Elimination of Discrimination Against Women also calls the elimination of gender-based discrimination “in political and public life”, including restrictions on the rights of women to vote in elections as well as “(T)o participate in the formulation of government policy and the implementation thereof and to hold public office and perform all public functions.”

Similar stipulations are included in the regional conventions. Examples include article 23 of the 1969 American Convention on Human Rights, article 3 of the first Protocol to the 1950 European Convention on Human Rights, article 13 (1) of the 1981 African Charter on Human and Peoples Rights and art. 29 of the 1999 Commonwealth Independent States Convention on Human Rights and Fundamental Freedoms. The 1994 Arab League Charter of Human Rights considers “the people” as “the source of authority” and acknowledges that the citizen has “political capacity” (art. 19) and “the right to occupy public office” (art. 33). In view of all these it is difficult to question that the right to be represented in the government is now clearly recognized in international law.

 The Challenges of Relying Solely on the Civil and Political Rights Lenses

As clarified above, the merits of relying on civil and political rights to promote and measure democracy are obvious. Using only civil and political rights as a benchmark reduces democracy to nothing more than a political system with institutional features for electing the ruler. It also reduces the significance of the rights to the freedoms of expression, assembly, association, or the very purpose of having an electoral and multi-party systems, or equality, inclusiveness and participatory rights. It makes one wonder why people have to choose a government which oppresses them or which shields their oppressors? If ‘less government’ is the formula for democracy, as suggested by normative individualism, then there is no government ‘for the people’ and what is in place is a government for the politically and economically dominant social groups.

The point in recognizing the freedoms of expression, association, assembly and voting rights is to enable people to secure their basic human needs – such as work, access to health or educational services, freedom from discrimination and corruption, and inclusion in social life. When people collect information and exchange views with others and use their voting rights during elections, what motivates them to exercise these rights is to secure their goals linked to survival rather than for sake of exercising rights and freedoms. If there were no government that is ready to help them achieve these goals and to respond to their collective needs, then the exercise of these political rights would have mainly symbolic significance. Unfortunately, this is why voting turnout are dwindling in many places because the citizens see no point in taking advantage of these opportunities. When they feel that there no government for them they lose confidence in democracy.

Civil and political rights are also being used in many places to threaten democracy. Example of this includes the protection that is given to the rights of individuals and groups who promote Neo-Nazi, Neo-Fascist and White Supremacy ideologies. After decades of tolerance to the freedoms of expression, assembly, association and voting rights of the members of these kinds of organizations, these groups are now poised to challenge the traditional political parties and to win political elections through democratic means. Some of these political parties are already accommodated in the process of governing in some of the Western countries. The Covenant on Civil and Political Rights clearly prohibits, in article 20 (2), “advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence”. Yet, in these countries protecting political rights favoring these kinds of organizations appear to be more important than protecting the social groups which they target and the values of democracy.

The reliance on the lenses of civil and political rights only to measure democracy in the multi-ethnic countries of the Third World also poses challenges to democracy. In many of these countries, where the states are weak and unable to meet the needs of their citizens, individuals exercise their civil and political rights by promoting the economic, political, social and cultural interests of their own communities. This ‘self-centered’ or localized approach to the exercise of civil and political rights perpetuates narrow collective thinking, exacerbating group rivalries and tensions instead of facilitating nation-building and displaying loyalty to the state. Some use these rights to mobilize for autonomy or self-rule for their own linguistic, cultural or religious groups. If these ways of exercising civil and political rights are not checked, there is a risk that the socio-political fabrics of these states will be torn apart. This tendency is less visible in the developed Western countries because their states are strong and able to meet the needs of their citizens and because their ways of life are more compatible with normative individualism.

Human Rights-Based Approach and Democracy: The Economic, Social and Cultural Rights Lenses

Opponents of normative individualism prefer to see democracy promoted and measured by the extent to which the needs and interests of the political community is promoted, without neglecting marginalized social groups. This includes by considering efforts made by governments to address economic, social and cultural problems and to create the conditions necessary for the exercise of economic, social and cultural rights the members of the national community without discrimination. They dismiss the arguments used by the critics of economic, social and cultural rights to reject or belittle the legitimacy of these rights. These critics advance different reasons when rejecting these rights, including by stating that they are vaguely formulated in the laws and are impractical, not least because of they cannot be claimed or because they entail high economic cost. The defendants of these rights, by contrast, argue that if these same tests were applied to civil and political rights, they too would fail the test of legitimacy. As they see it, all rights are socially constructed and can be claimed if desired. They are also vaguely formulated and their realization entail cost one way or another.

The Universal Declaration of Human Rights recognizes both these sets of rights. The preambles of the two international covenants underscore the point that all these rights are derived from the needs of protecting the dignity and worth of human beings. Further, operative paragraph 5, part I of the 1993 Vienna Declaration on Human Rights makes it clear that civil, political, economic, social and cultural rights are “indivisible and interdependent and interrelated”. Thus, the UN cannot afford to ignore economic, social and cultural rights when it addresses issues of democracy. Under article 1 of its Charter the UN assumed the obligation to promote human rights, conditions for economic and social development and the respect for the rights of peoples to self-determination. Article 55 also mentions the obligations of the UN to promote the ‘conditions’ that are necessary for ‘well-being’ and for promoting “higher standards of living, full employment, and conditions of economic and social progress and development”. When the UN meets these obligations, its members are expected to cooperate individually as well as collectively as pledged under article 56 of the Charter.

In the pursuit of these mandates, the UN adopted a range of human rights instruments recognizing economic, social and cultural rights. This is obvious from the provisions of the Universal Declaration of Human Rights, the International Covenant on Economic, Social and Cultural Rights, the Convention on the Rights of Migrant Workers and the different conventions prohibiting discrimination. The ILO, UNESCO, WHO and the regional organizations too have acknowledged the legitimacy of economic, social and cultural rights by adopting specific instruments and are seen actively engaged in promoting and monitoring their implementation.

The concern for economic, social and cultural questions has both individual and collective dimensions. Example of the latter is the manner in which the rights of peoples to self-determination is promoted, including by promoting the pursuit of economic, social and cultural development. When this group rights is achieved, the individual members of the national communities will be able to enjoy and exercise their economic, social and cultural rights. The right to development is another group right that is recognized in the 1969 declaration on social progress and development, and the 1986 declaration on the right to development, as individual and group rights. The UN has been promoting both these two aspects of the right to development in the course of promoting democracy.

The specific economic, social and cultural rights which are recognized by the Universal Declaration of Human Rights include the rights to own property (art. 17) and to work (art. 23). By the latter, what is meant is not forced labor but work that is chosen or accepted freely by the person concerned. Moreover, this work should also be performed under “just and favourable conditions”, under conditions that guarantee fair wages and right to establish and to join a trade union (art. 23). The social rights that are recognized include those which are necessary for a way of life which is indispensable for one’s dignity (Art. 22), the right to education (art. 26), and the right to “a standard of living adequate for the health and well-being of the individual … including food, clothing, housing and medical care” (art. 25).  In addition, recognition is also given to the right “to participate in the cultural life of the community” (art. 27).

The legal obligations of states to acknowledge and promote these economic, social and cultural rights are clearly mentioned in the Covenant on Economic, Social and Cultural Rights and the other conventions which protect vulnerable groups. For instance, article 2 of the Covenant on Economic, Social and Cultural Rights, requires the ratifying states to promote the full enjoyment of these rights by using the resources at their disposal. This requires formulating clear economic, social and cultural policies, strategies and adopting the necessary measures. Further, these states are required to ensure that there will not be discrimination in the enjoyment of these rights. The manner in which these obligations are discharged require the adoption of sound systems of governance. How states comply with these obligations is monitored by UN bodies and programmes (e.g. by the UNDP), by the treaty committees (e.g., the Committee on Economic, Social and Cultural Rights), the regional human rights bodies and by some of the specialized agencies. For instance, the ILO monitors work related rights, UNESCO monitors rights related to culture and education and WHO monitors rights relating to health. This is done by assessing the available statistical data, on the level of unemployment, school enrollment, infant mortality, malnutrition, and prostitution; as well as by considering how health services are promoted, the extent to which social security is provided, and the availability, affordability and accessibility of food, housing, water, cultural heritage sites and museums. All these monitoring bodies give special attention to how states comply with the requirements of promoting inclusiveness and effective participation. The cumulative effect of monitoring how these obligations are complied with promotes democracy in substance.

This is in no way intended to suggest that the road-map for promoting substantive democracy is strait forward and easy. The mere fact this area concerns governance creates tensions between this right-based approach to promote democracy and the principle of sovereignty. The UN cannot compel states to cooperate in implementing the policies which it advocates. This is why the UN itself denies that it uses a specific model of democracy. National deficits in the promotion of the economic, social and cultural rights can also be caused, at least in part, by external factors. A good example of this is imposition of Structural Adjustment Programs on developing countries by the World Bank and IMF, requiring these countries to reduce investment in the educational and health sectors. Engaging with globalization also requires deregulation, privatization, and weakening of trade unions. This means without international cooperation it may not be easy to resolve economic and social problems and hence the full realization of economic, social and cultural rights. It is therefore no wonder that article 28 of the Universal Declaration on Human Rights considers the creation of a just international order as necessary if human rights are to be fully realized.

Conclusion

Democracy and human rights are very appealing and politically sensitive complementary ideals, which people have both aspired to and fought for over the centuries. Paradoxically, while being universal ideals, they are also perceived and practiced differently. What makes them ideologically and politically contentious are disagreements over the nature of the human being, how s/he relates to the community and the state, what kind of individual rights and freedoms should be acknowledged and whether these rights should be subordinated to the interests of the community. Resolving the differences of opinion on these questions has always proved to be difficult because they are related to questions regarding the kinds of social and political systems and orders that humans aspire to. We have different political systems that recognize or deny the legitimacy of different political, economic and social interests, and that have different views on which rights and freedoms that should be protected. It is, therefore, no surprise that states, political actors and many writers have resigned themselves to simply agreeing to disagree. Rather than engaging in debate they dedicate themselves to glamorizing their own political systems, as the best model for democracy, and endlessly ridiculing or discrediting the systems used by their protagonists.

This, in part, is why the literature on democracy is in turmoil. It explains why democracy is equated with ‘legitimate rule’, ‘government of the people’, ‘the will of the people’ or ‘the rule by the majority’, ‘popular sovereignty’, ‘government by the people’, ‘government for the people’ or combinations of some or all of these. Although all these formulations legitimize power in the name ‘the people’, it is not always the case that all members of this ‘people’ are empowered by and benefit from the proposed political system. This is why some of these proposals are dismissed by their critics as symbolic or sham democracy or as democracy ‘in form’ only, while others are called ‘true democracy’ or ‘democracy in substance’.

The literal meaning of the term ‘democracy’, in Greek, is the rule, authority or government of the people. The ancient Greek city states are said to have used this political system of governance as a means of allowing the governed to rule themselves. In fact, not all the inhabitants of these city states were able to participate in political life. Slaves and women, for example, were not empowered to do so. Likewise, those who claim that modern democracy is linked to the experience of the American and French Revolutions are ignoring the fact that the beneficiaries of the ‘rights of man’ which were proclaimed by these Revolutions did not empower the slaves, women, indigenous groups or their colonial subjects. Democracy was more of an ideal for the people, rather than a political reality.

It is the emergence of the United Nations, with its mandates to promote human rights and the rights of people to self-determination, which led to the modern concept of democracy if this concept is to be understood in the sense of governance of the people as the word suggests. The road-map that was used to this effect was twisted since there were two political currents that were competing to shape it. They were and still are normative individualism (supported by the Liberal and Libertarian positions) and collectivism (supported by Socialists, Communitarians, traditionalists, etc.). Navigating between these currents, the UN ended up by accepting something from both of them. On the one hand, it identified democracy as human rights by incorporating it in article 21 of the Universal Declaration of Human Rights, and using the bottom-up approach later when the HRBA was developed by empowering all the individual members of the political communities (in contrast to the restrictive model of promoting the historical ‘rights of man’ of few citizens). On the other hand, this organization proceeded by recognizing the existence of ‘peoples’ (demos), and by promoting their rights, including the right to self-determination and developing guidelines for how sound governance (cracy) should be promoted. This rights-based and double-sided approaches was intended to assure democracy in form as well as in substance. The former uses the lenses of civil and political rights and the latter is advanced by promoting economic, social and cultural rights, and the right to development and sound governance. This is what the goals of the Human Rights-Based Approach are about.

Because democracy has sensitive political, economic, social and cultural dimensions most states may well be unwilling to cooperate with the use of this HRBA to measure democratic performance. This is in part because states incorporate a wide range of economic, social, political and cultural structures, making it difficult to use a single measurement tool for all cases. Further, as long as the principle of sovereignty permits states to refuse to ratify human rights conventions, serious doubts must arise regarding the legitimacy of using conventions which they have not accepted to measure their progress towards democracy. This, apparently, is why the UN relies on the Universal Declaration on Human Rights to promote the HRBA since this document, by contrast to the two international covenants, recognizes civil, political, economic, social and cultural rights as being inter-related and inter-dependent.

Endnotes

* Associate Professor, School of Global Studies, University of Gothenburg (Sweden). This paper represents a revised version of two earlier conference presentations. The first one, on “human rights, democracy and peace: the implications of the new challenges”, was presented in the workshop held in Jyväskylä (Finland) in August 2017, jointly sponsored by the Academy of Finland, the University of Jyväskylä, Kone Foundation and The Åland Islands Peace Institute. The second paper was presented in the winter session of the Nordic Summer University, in Copenhagen, in February this year on “Dysfunctional Democracies, Empowerment and the Human Rights Based Approach”. I am grateful to the organizers of these two workshops for the invitations. Special thanks goes Mogens Chrom Jacobsen, who was kind enough to invite me to workshops of the Nordic Summer University and to the Honorable, Reverend Doctor Ezra Gebremedhin for their valuable comments on the draft of this manuscript.

[1] Vienna Declaration and Programme of Action, part. I, operative paragraph 8. This declaration was adopted by UN General Assembly on 25 June 1993. See google.com

[2] Ibid.

[3] Ibid.

[4] UN, Democracy, http://www.un.org/en/sections/issues-depth/democracy/index.html Seen on October 30, 2018

[5] Declaration on Social Progress and Development, A/Res/2542 (XXIV) 11 December 1969.

[6] Thesaurus, dictionary.com

[7] Cambridge Dictionary

[8] https://www.merriam-webster.com/dictionary/democracy

[9] Susan Marks,” The End of History? Reflections on Some International Legal Theses”, European Journal of International Law, Vol. 8, Issue 3, 1997 p. 449.

[10] https://www.merriam-webster.com/dictionary/democracy.

[11] Aristotle, Politics, trans. H. Rackham (Cambridge: Harvard University Press, 1959), Vol. 5, p. 403 (v.3-5).

[12] USHistory.Org, The Declaration of Independence, available from the web in,  http://www.ushistory.org/declaration/document/

[13] The History Guide, Declaration of the Rights of Man and the Citizen (August 1789), art. 2, in http://www.historyguide.org/intellect/declaration.html

[14] Article 2 of the 1958 French constitution.

[15] Jack Donnelly, “Human Rights, Democracy, and Development”, Human Rights Quarterly, Volume 21, Number 3, August 1999, p 615. See also Anthony H. Birch, The Concepts and Theories of Modern Democracy. Routledge London, 1993 (1996 reprint), p. 45. In the view of the latter, democracy is about form, i.e. the existence of political institutions. and not a question of substance, i.e. whether or the community as a whole governs itself. “The idea that there was a classical doctrine of democracy is,” he wrote, “in fact, a most unhelpful piece of nonsense”. Ibid., p. 52.

[16] Webster’s Encyclopedic Unabridged Dictionary of the English Language (New York: Gramercy Books, 1989); The Oxford Illustrated Dictionary (Oxford: Clarendon Press, 1975); Jewett’s Dictionary of English Law, Vol. 2 (London: Sweet and Maxwell Ltd., 1977); and A Dictionary of Modern Legal Usage, 2nded., Bryan A. Garner (Oxford University Press, 1995).

[17] Cassell’s Latin Dictionary, D.P. Simpson (New York: Macmillan, 1957).

[18] Ballentine’s Law Dictionary, 3rded., William S. Anderson ed., (Rochester: The Lawyers Cooperative Publishing Co. 1969): Black’s Law Dictionary, Bryan A. Garner ed., 7th ed., (St. Paul: West Group, 1999).

[19] Black’s Law Dictionary

[20] Samuel Pufendorf, De Jure Naturae et Gentium Libri Octo, Vol. 2, C.H. Oldfather & W.A. Oldfather, trans. 1688 ed. (New York: Williams S. Hein & Co., 1995), p. 1367.

[21] I. Kant, “The Science of Right,” in Great Books of the Western World, R. M. Hutchin et al(eds.),  (Chicago: Encyclopaedia Britinnica, Inc., 1952), Vol. 42, pp. 436 and 452.

[22] L. Oppenheim, International Law: A Treatise, Vol. I – Peace, 7th ed., H. Lauterpacht, ed., (London: Longmans, Green and Co., 1948), p, 114, §64.

[23] Hugo Grotius, The Law of War and Peace: De Jure Belli ac Pacis Libri Tres, trans. Francis W. Kelsey (New York: The Liberal Arts Press, 1925), p. 312.

[24] John Stuart Mill, “On Liberty, representative Government & Utilitarianism”, in Great Books of the Western World, Robert Maynard Hutchins, et al(eds.), (Chicago: Encyclopaedia Britannica, Inc., 1952), Vol. 43, p. 269. Emphases original.

[25] Thomas Hobbes, Leviathan, in Great Books of the Western World, Robert Maynard Hutchins el al, eds., Vol. 23 (Chicago: Encyclopaedia Britannica, Inc., 1952 {1990 prt.}), p. 86.

[26] Ibid.,pp. 84-86 & 99-100.

[27] Ibid.,pp. 85-88 & 101-102, and 116.

[28] John Locke, “An Essay Concerning the True Original Extent and End of Civil Government”, Great Books of the Western World, Robert Maynard Hutchins el al, Vol. 35, pp. 26-27.

[29] Ibid.,pp. 28-29.

[30] Ibid., pp. 26-30, & 46-47.

[31] I. Kant,The Science of Right” in Great Books of the Western World, Vol. 42, R. M. Hutchin el al, eds. (Chicago: Encyclopaedia Britinnica, Inc., 1952), p. 435 (Author’s Emphasis)

[32] Ibid.,pp. 435 & 437.

[33] Ibid., p. 436.

[34] Jean-Jacque Rousseau, The Social Contract and Discourses, G.D.H. Cole, trans. (London: J.M. Dent and Sons Ltd., 1913, 1977 prt), p. 193.

[35] Ibid., p. 15. See further 41, 165, 170-1.

[36] Karl Marx, Early Writings, translated by Rodney Livingstone and Gregor Benton, Middlesex: Penguin Books, Ltd., 1975 (1977 prt.). 350.

[37] Ibid., p. 349.

[38] Ibid.

[39] Ibid., pp. 229-230.

[40] Ibid., p. 230.

[41] Karl Marx “Critique of Hegel’s Doctrine of the State” in Early Writings, Rodney Livingstone trans. (London: New Left Review, 1975, 1977 prt.) p. 194.

[42] Karl Marx, “The Charists”, in Surveys from Exile:  Political Writings, David Fernbach, ed. (London: New Left Review, 1973), p. 194. p. 265.

[43] See the letter of Marx to Engels, 11 February 1865, in K. Marx, F. Engels and V. I. Lenin, Selected Correspondence (Moscow: Progress Publishers, 1975), p. 153. See also the letter of Marx to Engels, dated 18 Feb. 1865, in Karl Marx & Friedrich Engels, Correspondence: 1846-1895.A Selection with Commentary and Notes (Bristol: Western Printing services, Ltd., 1934?), p. 193.

[44] Karl Marx, Early Writings, pp. 232 and 234.

[45] Ibid., pp. 232-4.

[46] See V.I. Lenin, Collected Works, Bernhard Isaac, trans (Moscow: Progress Publishers, 1964, 1977 prt.), Vol 20, 1913-14, pp. 401-2 & 412; and, The Rights of Nations to Self-determination (Moscow: Progress Publishers, 1951,1971 prt) Progress Publishers, translation.

[47] Ayn Rand, The Virtue of Selfishness: A New concept of egoism (New York: The New American Library, 1962{1964}), p. 32. Any Rand, whose original name was Alisa Zinovyevna Rosenbaum, left Russia when she was 26, disappointed by what the Bolshevik Revolution had done to her country.

[48] Ibid., p. 123.

[49] Ibid. p. 33.

[50] Ibid. p. 32.

[51] Ibid. p. 34.

[52] Ibid. p. 122. Original italic.

[53] Ibid. p.126.

[54] Ibid. p. 124.

[55] Ibid. p. 137.

[56] Ibid. p.130.

[57] Ibid. p.131.

[58] Ibid. p. 134.

[59] According to Fernando Teson, liberalism is “a theory of politics founded upon individual freedom, respect for individual preferences, and individual autonomy”, Fernando R.  Teson, “Kantian Theory of International Law”, Columbian Law Review, Vol. 92, 1992, p. 54, note 4. This position considers the end of governments and states to the protection of the rights and interests of individuals, and traces its root to the works of Kant in his essay on Perpetual Peace. Ibid., p. 54. For Anthony Arbaster, “Liberalism was inaugurated by the French Revolution. Anthony Arbaster, Liberalism and postmodernism”, in James Meadowcroft, ed. The Liberal Political Tradition: Contemporary Reappraisals (Cheltenham: Edward Elgar, 1996), p. 162.

[60] Jack Donnelly, Universal Human Rights in Theory and Practice (Ithaca: Cornell University Press, p. 20. Note that this Donnelly does not dismiss the idea that rights can be exercised collectively, p. 21.

[61] Ibid. p. 70.

[62] Ibid. p. 69.

[63] Ibid. p. 21.

[64] Ibid. p. 69.

[65] Ibid.

[66] Marks, Susan. “The End of History? …, p. 470. According to Birch there never was “a classical doctrine of democracy” to speak of. See Birch, note 15 above. For views defending democracy in substance see, Cerena, M. Christina. “Universal Democracy: An International Legal Right or the Pipe Dream of the West?” New York Universal Journal of International Law and Politics, Vol. 27, 1995, p. 126.

[67] Donnelly, Universal Human Rights, p. 73.

[68] Ibid. p. 103.

[69] Ibid. p. 87.

[70] Will Kymlicka, Liberalism, Community and Culture(Oxford: Clarendon Press, 1989), p. 254.

[71]  Ibid., p. 4.

[72]  Ibid. p. 254.

[73] Ibid.

[74] Birch, p., 133.

[75] Michael Waltzer, “The Communitarian Critique of Liberalism”, in Amitai Etzioni, ed., New Communitarian Thinking: Persons, Virtues, Institutions, and Communities (Charlottesville: University Press of Virginia, 1995), pp. 62-63. This writer wonders where this ‘solitary’ and ‘heroic’ individual which Liberal intellectuals write about comes from, since it appears that s/he “is fully formed before the confrontation begins.” p. 68.

[76] Brian Lee Crowley, The Self, the Individual, and the Community (Oxford: Clarendon Press, 1987), pp. v, and 255.

[77] Ibid., , p. vi. Liberals “require us to conceive of ourselves in ways which conflict with our understandings of reason and responsibility” he added, “and therefore conflict with our deepest moral sense”. Ibid.,  p. 220.

[78] Ibid., p. 281.

[79] Ibid., citing Michael J. Sandel, Liberalism and the Limits of Justice (Cambridge: 1982) p 132.

[80] Alasdair MacIntyre, After Virtue (London: Duchworth, 1981{2007}) 3rd ed. p. 220.

[81] Jean Bethke Elshtain “The Communitarian Individual”, in Amitai Etzioni, ed., New Communitarian Thinking…, p. 108.

[82] Alex Thomas,An Introduction to African Politics, 4th ed. (New York: Routledge, 2000{2016}), p. 254.

[83] Martti Koskenniemi, “Intolerant Democracies: A Reaction”, Harvard International Law Journal, Winter, Vol. 37, 1996, p. 234.

[84] The Works of Jeremy Bentham, (New York: Russell & Russell, Inc., 1962, reproduced from the Bowring editions of 1838-1843, by John Bowring), Vol. III, pp. 218-220..

[85] Ibid., p. 221.

[86] Ibid., p. 159

[87] J. Bentham, An Introduction to the Principles of Moral and Legislation (Oxford: Clarendon Press, 1789 {1823 prt.}), p. 4.

[88] 1814 Constitution of Norway, see https://www.stortinget.no/en/Grunnlovsjubileet/In-English/The-Constitution—Complete-text/

[89] 1848 Liberian Declaration of Independence, see, Declaration Project, in http://www.declarationproject.org/?p=181

[90] Constitution of Mexico, 1917, in LatinAmericanStudies.org, in http://www.latinamericanstudies.org/mexico/1917-Constitution.htm

[91] 1937 Constitution of Ireland, in, Wikisource, https://en.wikisource.org/wiki/Constitution_of_Ireland_(original_text)

[92] U.S. Congressional Record, Vol. 54, Senate, p. 2, pp. 1742-1743.

[93] “British Labour’s Message to the Bolsheviki”, New York Times Current History. February1918, pp. 206-7.

[94] Eyassu Gayim, The Principle of Self-Determination: A Study of Its Historical and Contemporary Legal Evolution.Norwegian Institute of Human Rights, Publication no. 5, 1980, pp. 12-15.

[95] Franck, Thomas M. “The Emerging Right to Democratic Governance,” American Journal of International Law, Vol. 86, 1992, pp. 46-91.

[96] Resolution 217 C(III), which was adopted at the same time as the Universal Declaration on Human Rights made it clear that “United Nations cannot remain indifferent to the fate of minorities” and will deal with this matter later after a thorough study was made concerning the problem.

[97] Resolution 421V (D) of 4 December 1950.

[98] Resolution 545 (VI) 5 February 1952 and 549 (VI) 5 February 1952

[99] Resolution 637(VII) 20 December 1952

[100] Resolution 421 (V), E preamble 4 December 4, 1950

[101] Ibid, E. operative paragraph 7.b.

[102] Operative paragraph 13, Proclamation of Teheran, Final Act of the International Conference on Human Rights, Teheran, 22 April to 13 May 1968, U.N. Doc. A/CONF. 32/41 at 3 (1968).

[103] Vienna Declaration and Programme of Action Part I, operative paragraph 5.

[104] UNICEF, Human Rights-Based Approach to Programming, https://www.unicef.org/policyanalysis/rights/index_62012.html

[105] The Rio Declaration on Environment and Development, principles 1, 20 and 22 in UN Doc. A/Conf.151/26, Vol. 1, 1992 annex in http://www.un.org/documents/ga/conf151/aconf15126-1annex1.htm

[106] Vienna Declaration and Programme of Action Part I, operative paragraph 10

[107] http://www.unsystem.org/tags-hlcp/human-rights

[108] http://www.unsystem.org/content/2005-world-summit-outcome-human-rights-democracy-and-rule-law; &  http://www.unsystem.org/tags-hlcp/human-rights

[109] Vienna Declaration and Programme of Action Part I, operative paragraph 5.

[110] UN HRBA Portal, The Human Rights Based Approach to Development Cooperation: Towards a Common Understanding Among UN Agencies, http://hrbaportal.org/the-human-rights-based-approach-to-development-cooperation-towards-a-common-understanding-among-un-agencies

[111] Vienna Declaration and Programme of Action Part I, operative paragraph 5.

[112] See, Yearbook of the United Nations, 1952, p. 560, and also General Assembly, 10th session, Third Committee 669 mtg. p.226, para. 13.

[113] See UN Doc, E/2256, p. 7. Commission of Human Rights 8th session, April 14 to 16 June 1952, in Commission on Human Rights, Official Records, Report of the Eighth Session, Economic and Social Council, 14th session, Supplement no. 4. 1952.

[114] Declaration on Social Progress and Development, General Assembly resolution 2542 (XXIV) 11 December 1969.

[115] Permanent Sovereignty over Natural Resources, General Assembly resolution 1803 (XVII) 14 December 1962.

[116] Declaration on the Right to Development, General Assembly resolution 41/128, 4 December 1986, annex.

[117] Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities, General Assembly resolution 47/135, 18 December 1986, annex.

[118] Declaration on the Rights of Indigenous Peoples, General Assembly resolution 61/295 of 13 September 2007, annex, arts. 3 & 4.

[119] Ibid., articles 11 – 14, 20, 25-26 and 31.

[120] E/1992, annexes IV, section, page 35. See also the Yugoslavia draft resolution in UN Doc.E/1992, annex IV, section A, article 10 b, p. 35, cited in the debate in the Commission of Human Rights 8th session, April 14 to 16 June 1952, Official Records, Report of the Eighth Session, Economic and Social Council, 14th session, Supplement no. 4. NY, UN, E/2256, p. 54.

[121] Allen Rosas, “Article 21”, in, Asbjorn Eide, Gudmundur Alfredsson and el al, eds., The Universal Declaration of Human Rights: A Commentary. Scandinavian University Press, 1993, p. 299.

References

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Aristotle. Politics. H. Rackham (Trans.) Cambridge: Harvard University Press, 1959,  Vol. 5.

Baruchello, Giorgio and Rachael Lorna Johnstone. “Rights and Value: Construing the International Covenant on Economic, Social and Cultural Rights as Civil Commons”. Studies in Social Justice,  Vol. 5, Issue 1,  2011, pp. 91-125.

Bentham, Jeremy. An Introduction to the Principles of Moral and Legislation (Oxford: Clarendon Press, 1789 {1823 prt.}).

Bentham, Jeremy. The Works of Jeremy Bentham. New York: Russell & Russell, Inc., 1962. Reproduced from the Bowring editions of 1838-1843, Vol. III.

Birch, Anthony H. The Concepts and Theories of Modern Democracy. Routledge London, 1993 (1996 reprint).

Cerena, M. Christina. “Universal Democracy: An International Legal Right or the Pipe Dream of the West?”. New York Universal Journal of International Law and Politics, Vol. 27, 1995, pp. 289-329.

Crowley, Brian Lee..The Self, the Individual, and the Community. Oxford: Clarendon Press, 1987.

Donnelly, Jack. “Human Rights, Democracy, and Development”. Human Rights Quarterly, Volume 21, Number 3, August 1999.

Donnelly, Jack. Universal Human Rights in Theory and Practice. Ithaca: Cornell University Press, 1989.

Elshtain, Jean Bethke. “The Communitarian Individual” In, Amitai Etzioni, ed.. New Communitarian Thinking: Persons, Virtues, Institutions, and Communities. Charlottesville: University Press of Virginia, 1995, ch. 5.

Estlund David. Democracy. Oxford: Blackwell Publishing, 2002.

Etzioni, Amitai (ed). New Communitarian Thinking: Persons, Virtues, Institutions, and Communities. Charlottesville: University Press of Virginia, 1995.

Franck, Thomas M. “The Emerging Right to Democratic Governance,” American Journal of International Law, Vol. 86, 1992, pp. 46-91.

Gayim, Eyassu. The Principle of Self-Determination: A Study of Its Historical and Contemporary Legal Evolution.Norwegian Institute of Human Rights, Publication no. 5, 1980.

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Hobbes, Thomas. Leviathan. In Great Books of the Western World, Robert Maynard Hutchins el al, eds., Vol. 23 (Chicago: Encyclopaedia Britannica, Inc., 1952 {1990 prt.}).

Kant, Immanuel. The Science of Right”. In, Great Books of the Western World, Vol. 42, R. M. Hutchin el al (eds). Chicago: Encyclopaedia Britinnica, Inc., 1952.

Koskenniem, Martti. “Intolerant Democracies: A Reaction”. Harvard International Law Journal, Vol. 37 Winter, 1996, pp. 231-303.

Kymlicka, Will. Liberalism, Community and Culture. Oxford: Clarendon Press, 1989.

Lenin, V.I. The Rights of Nations to Self-determination. Moscow: Progress Publishers, 1951, 1971 (prt.). Progress Publishers, translation.

MacIntyre,  Alasdair.  After Virtue. London: Duchworth, 1981 {2007}) 3rd ed.

Marks, Susan. “The End of History? Reflections on Some International Legal Theses”. European Journal of International Law, Vol. 8, Issue 3, 1997, pp. 449-477.

Marx, Karl. Early Writings, translated by Rodney Livingstone and Gregor Benton, Middlesex: Penguin Books, Ltd., 1975 (1977 prt.).

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Humanity and Human Rights: The Contours of International Law

There are compelling reasons for being content in living at a time when the basic requirements of humanity and human rights have been recognized by the ratification of most of the international human rights and international humanitarian law instruments. Clearly, the existence of disparity between the recognized norms and the actual behavior of states cannot be denied. There are also states that are not willing to subscribe to what is widely accepted or political actors that have interests in reversing the gains made this far. Despite all this, no one can doubt that a mile-stone has been reached in recognizing the values of humanity and human rights. The credit for this goes to those that have struggled for these goals, including through their writings and struggles and the conducive, post-World War II political atmosphere which stimulated the inter-state agreements.

Giving credit to the role played by the past thinkers does not necessarily mean that there is no longer any need for intellectual debate relating to this matter. If the requirements of human rights and humanity are to be critically appraised, it will be necessary to examine closely the thoughts of scholars, past and present, on this subject. Then and only then will we be able to fully recognize the inter-play between humanity and human rights as perceived in the past and present and to appreciate the direction international law has taken or should take.

This article sheds light on the path which international law took in responding to the requirement of human rights and humanitarianism (as dictated by humanity). This is done by reflecting on international human rights law and international humanitarian law. If these laws were developed to protect the dignity and worth of the human being, as is claimed, why make a distinction between them? Are there areas of convergence between them?  Before attempting to respond to these and other questions it will be necessary to clarify not only what is understood by human rights and humanity, but also who the human being is in the first place.

Human being, humanity and human rights – conceptual issues

Human being: Dictionaries define ‘human being’ typically as a member of the Homo sapiens species that is “distinguished from other animals by superior mental development, power of articulate speech and upright stance.”[1] Since there are species in the animal kingdom with a capacity to reason and communicate, it important to look for other distinguishing attributes which merit protecting our unique qualities, values, rights, freedoms. Are we social? Are dignity, empathy, sensibilities and sympathy for our fellow beings part of our nature? If not, what do people mean when they say ‘this person lacks humanity’? While there is no problem in identifying the human being by the looks, appreciating our nature has always been a matter of controversy.

Thomas Hobbes, for instance, believed that the human being was not social, e.g., like ants or bees, or a peaceful and compassionate being. Rather, he took him/her as individualistic, competitive, envious, hateful and belligerent. The mere fact that human beings were equipped with the power of reasoning led Hobbes into believing that this quality leads them to think that they are wiser than others and to use it for manipulation and hurting one another. According to him, this nature and inclinations is responsible for the perpetual state of conflict in which we find ourselves in, a situation which Hobbes described as ‘war of all against all’. This was why he called for the surrendering of ‘natural rights’ in favor of tyrannical rule based on social contract.[2]

Immanuel Kant dismissed this negative description of the human nature since it ignored our obvious social nature and our many positive inclinations and attributes which enabled us to evolve by forming stable communities. As Kant saw it, the human being is a rational and moral being, one who complies with duties, whether based on the needs of complying with external laws or self-constraint which limits the freedoms of action using “practical reason, (i.e., according to humanity in his own person)”.[3] This uniqueness entitles the human being to exercise their ‘natural’ rights and freedoms based on the recognition of “the dignity of humanity in every other man.”[4]

If humans are a self-consumed evil species constantly at war with one another, as Hobbes claimed, then humanity cannot exist or cannot be anything more than a mere collection of hostile human beings inhabiting the world. If, on the other hand, we are rational moral beings, as Kant believed, then our shared rationality, morality and sense of solidarity should make us feel as ‘one’, very much like members of ‘a family’.

Humanity is defined in Dictionary.com in at least three different ways: i. “all human beings collectively; the human race; humankind”, ii. “(T)he quality or condition of being human; human nature” and, iii. “(T)he quality of being humane; kindness; benevolence.”[5] The first definition avoids specifying the essential elements in humanity by merely considering it as the equivalent to human beings, collectively. We see this approach taken in some international instruments, e.g., in article 1 of the 1966 Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, which considers outer space as “the province of all mankind”, or article 1 of UN General Assembly resolution 43/53 of 1988 which regards climate change as “a common concern of mankind”. The second definition also side-tracks what humanity is by merely pointing out the root word it came from – i.e., from human.

More specific and giving is the third definition which refers to kindness, benevolence, and being humane as examples of the virtues of humanity. David Hume elaborates further by adding more virtues, including “generosity, gratitude, moderation, tenderness, friendship”.[6] According to him, these “are not only the same in all human creatures, and produce the same approbation or censure; but they also comprehend all human creatures”.[7] Why the receivers get such gestures is not hard to understand, since this is explainable by the simple fact that there must have been a need for it, irrespective of whether that need has arisen from situations or incidents caused by the forces of nature, by others, by accident or by the fault of the receivers. More interesting is what motivates or compels the givers to share the pains or problems of the receivers in that predicament. It makes one wonder whether one can feel or suffer from the conditions or problems faced by others, and if so why and how? Michel Ager answered this question in the following manner:

“Like the god Janus, humanity has a double-sided identity, which, however, does not express any alterity (no “other” is allowed in this bounded and total representation). Its double is only the reflection of a wounded, suffering, or dying humanity. It becomes the “absolute victim,” who is nothing else or other than absolute and essentialized humanity when it is suffering. This figure of humanity, both unique and split—absolute humanity vs. absolute victim—dominates contemporary thought: the representation of a world generally treated as a totality, with no representation of difference, is the foundation of our present as a humanitarian age, a world of nameless victims whose identities do not differ from the common humanity…” [8]

To say that sensibilities, generosity, gratitude, empathy and tenderness are examples of the virtues of humanity, does not necessarily mean that human beings cannot display the opposite characteristics such as to be evil, cruel, insensitive and inhuman. If this is the case, how can we still say that there is humanity? The defendants of humanity seek to resolve this dilemma by underscoring the point that who we are by nature should not be confused by how we sometimes behave in defiance of our nature. Christian theologians, for instance, explain this puzzle by reference to the Bible (Genesis 1:26-28) which considers us as created in the image of God, who is merciful, considerate and good. However, in reality we choose to commit sins (or because of the sins which we inherit) and behave in evil ways. Charles Sherlock explained this in his book on The Doctrine of Humanity: Contours of Christian Theology in this way:

“Whatever theory of the transmission of sin and its origin we hold, the reality is that everyone who reads this book is a sinner. Each of us needs constantly to turn to Christ, admit our need for forgiveness and healing, renounce sin and evil, and so live gladly the life which the Holy Spirit brings in us. Only in that way can the old humanity be killed off, and the fruits of the Spirit flourish (cf. Col. 3:1-17). Our prime concern is not with the transmission of sin, but (with) the humanity in Christ.”[9]

Most Liberals, libertarians and primordialists are at odds with the emphasis that is placed on the selective positive inclinations of human beings used to validate or glamorize the existence of humanity. Libertarians, such as Ayn Rand, have no problem with selfishness. What they regard strange is selflessness, altruism and sacrificing for others. ”Altruism holds death as its ultimate goal and standard of value”, wrote Rand in her publication entitled The Virtue of Selfishness, “and it is logical that renunciation, resignation, self-denial, and every other form of suffering, including self-destruction, are the virtues it advocates.”[10] According to her, “if civilization is to survive, it is the altruistic morality that men have to reject.”[11]

Richard Rorty, a liberal American professor, questioned the arguments used by Immanuel Kant in defense of humanity and human rights based on morality and rationality because people choose frequently to act in irrational and immoral ways to protect their interests. He provides numerous examples of this, such as how the Nazis tried to exterminate Jews in the 1930s, how Moslems were treated by Serbs during the Balkan wars, how most men see women and why “(F)or most white people, until very recently, most black people did not so count”[12] According to Rorty, these are all examples that show that people do not always want to see others, outside their own groups, as humans, let alone to feel their pains or share their sufferings. This was not always because of ignorance or misunderstanding but the determination to treat them in that way or as sub-human. As he put it:

“Resentful young Nazi toughs ere quite aware that many Jews were clever and learned, but this only added to the pleasure they took in beating such Jews. … For everything turns on who counts as a fellow human being, as a rational agent in the only relevant sense – the sense in which rational agency is synonymous with membership in our moral community.[13]

Primordialists reason in similar ways in dismissing the existence of humanity, as a concept that embraces all human beings, by attaching heavy weight to membership in ethnicity. As they see it, members of ethnic groups reject those outside their own groups, because of competition, fear of the unknown or past conflicts.[14] Loyalty to one’s own group itself hinders the development of broader feelings of solidarity, sensibilities and generosity which are generated by humanity. That we are social is not, strictly speaking, in doubt, since one cannot imagine ethnic conflict without ethnic bonds and loyalty. If this is the case, one can wonder why members of one ethnic group migrate to places inhabited by other ethnic groups or to foreign countries. Why do families from one ethnic group adopt children from other groups? Why do millions of students study abroad or tourists spend so much money to see and enjoy alien cultural places?

Liberals and libertarians are more consistent in their approach when belittling humanity because for them groups do not exist. What matters for them is the individual. Our social attributes and interests are neglected for the sake of maximizing individual rights and freedoms. But the question remains that the individual cannot develop intellectually, emotionally and socially outside social interaction and enrichment. How else did we end up using a common language, culture or professing a common religion? If groups do not exist, why do states invoke ‘public’ morality or security to restrict individual rights or freedoms, and why are families given the power to choose the schools for their children? Why is solitary confinement used as a means of punishment? Why are we attracted to foreign cultures and values? Simply walking on a street in a foreign country and seeing a stranger fall, bleed or cry can arouse feelings within us of sympathy or concern as if our own life was endangered. What one stranger does on the street or TV can make us laugh, weep, stimulated or depressed simply because we are social.

If we were not social, we would not see so many people and organizations dedicating their time, energy, resources and services to help ‘others’, out of love, compassion and altruistic motives. For most of these people and humanitarian groups even the age, gender, race, ethnicity, nationality or ideological orientation of the receivers do not matter. Nor do they care whether the cause they are responding to is natural calamities (earthquakes, floods, drought, hurricanes, etc.), or man-made problems (conflicts, internal displacement or refugee exodus) or the fault of the receivers. The generosity is extended out of “a vision of humanity as unique”.[15]

The presence of special bonds between human beings is now recognized in important international instruments and by international institutions. The Rome Statute of the International Criminal Court, for instance, justified the needs for the establishment of this Court by underscoring the point “that all peoples are united by common bonds, their cultures pieced together in a shared heritage, and … (the presence of fear) that this delicate mosaic may be shattered at any time”.[16] UNESCO justifies the protection of the ‘common heritage of mankind’ by designating historically significant cultural heritages (e.g., ancient monuments, pyramids, ruins and architectural complexes) as  belonging to all of us although we have not seen them or will ever see them or have a clear knowledge of  how we were shaped by them.

Rights. When used as an adjective the word right means correct, just, righteous, true, fair, etc.), If it is used as a noun, it can describe entitlement, privilege, title, guarantee, power, autonomy, freedom or benefits. The right-holder can be a human being, a legal person (corporation, labour union, religious or cultural entity, etc.), a political ruler (a king or a president), an institution (e.g., a parliament or a supreme court), or even animals. Human rights are only some of the rights that are recognized and enforced in the political world. Some of these rights may even be inhumane or inhuman. There were legal rights that were enforced for centuries, permitting people to purchase, sell, inherit and exploit fellow beings as slaves. Even today, we find countries who use laws entitling a grown-up man to marry a child or several minor girls, or to benefit from the misery of desperate prostitutes or trafficked migrant workers. However, morally bankrupt such legal rights might be, they remain to be valid in the countries that recognize them by law to regulate social relations, order and stability

Human rights simply state that humans have rights as if the source of the right is “humanity, human nature, being a person or human being’.[17] The discourse on human rights has complex, controversial and ideologically charged sides.[18] Why people have aspired or struggled for rights and freedoms in the past or present is not difficult to understand, since this is linked to what has prevented them from enjoying the desired rights and freedoms: e.g., to end oppression and discrimination. People do not struggle for no apparent reason. This is why “human rights do not define a unitary, universal human condition but designate rather a field of heterogeneous practices that help to constitute the array of subject moments or subject effects that comprise citizens and sovereigns.”[19] It is no wonder, therefore, that the narratives of human rights have changed over the years and why we find them framed differently during the French Revolution, the American Civil War, the post-World War II or in the Cold War periods.[20] Whichever way rights might have been framed in the minds of scholars or those who struggled for their rights, in the real political world they have always been political. It is no wonder, therefore, that even after the popular political struggles have emerged victorious, what was achieved were sometimes later denied or diluted by subsequent political actors. A case in point are the British Magna Carta, the U.S. Bill of Rights and the French Declaration of the Rights of Man and the Citizen.

In 1215, the rebellious English barons secured from their autocratic, King John, concessions acknowledging rights for the ’free men’ of his realm. These included the right not to be arbitrarily “seized or stripped of his rights or possessions, or outlawed or exiled” and not to be denied justice (clause 63). These rights and protections were not extended to the majority of “unfree peasants known as ‘villains’, who could seek justice only through the courts of their own lords.”[21] The pledges that were given were disregarded by subsequent kings who repealed most of the clauses contained in this Great Charter, making the struggle for rights open-ended.

The 1776 American Revolution was justified to put an end to the oppressive and tyrannical rule of the British King and to affirm the self-evident truths “that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness” and that governments should derive “their just powers from the consent of the governed.”[22] Shortly thereafter a Bill of Rights was adopted in 1791 to put this vision into practice, by guaranteeing the rights to the freedom of speech, assembly, religion, privacy, fair and speedy trial, to petition the government and the protection from ‘cruel and unusual punishment’. However, these ‘unalienable’, God-given rights were not interpreted as being applicable, at the time, to women or blacks or the indigenous populations. They were politically framed rights that were secured for the white men, whose rights to privacy included owning blacks – for nearly one more century. Both George Washington and Thomas Jefferson owned slaves. Even after the institution of slavery was legally abolished in 1865, blacks (and American Indians) continued to be excluded from political participation until their uprising in the 1960s.

The much-celebrated 1789 French Declaration of the Rights of Man and of the Citizen too was really not intended to make all human beings the holders of full rights, although its title suggests that non-citizens also have right. As Susan Maslan noted:

“The inclusion of man, as opposed to, say, Frenchman, as a subject of rights within the Declaration is what distinguishes it so radically from the American Bill of Rights, a document that makes no claim to apply beyond the confines of its national authority. It is a wonderful sort of irony, one that demands serious reflection, that the invention of the Rights of Man played and continues to play such a predominant role in the creation and perpetuation of French national identity.”[23]

This Declaration affirms the principle of equality and the “natural and imprescriptible rights of man”. But the beneficiary remained to be the politically situated French man.[24] French women (the ‘passive citizens’) continued to be excluded from political participation, and the problem of slavery in the French colonies was left out. This was why the betrayed slaves started to rebel. French women too protested, which was why the Declaration of the Rights of Women and the Female Citizens which was published in 1791, and still fell on deaf ears.

The international regime of human rights considers human rights as being applicable to all human beings without distinction. As stated by the Office of the United Nations High Commissioner for Human Rights:

“Human rights are rights inherent to all human beings, whatever our nationality, place of residence, sex, national or ethnic origin, colour, religion, language, or any other status.… Universal human rights are often expressed and guaranteed by law, in the forms of treaties…and other sources of international law. International human rights law lays down obligations of Governments to act in certain ways or to refrain from certain acts, in order to promote and protect human rights and fundamental freedoms of individuals or groups.[25]

This fits Donnelly’s definition which makes human rights applicable to everyone ”simply because one is a human being.”[26] It makes the language of human rights, if not human rights themselves, (essentially)… universal” because the members of the international community claim to respect its core value: i.e., human dignity.[27]

The contours of international humanitarian law: evolution and features

Humanitarian values and rules were developed out of the awareness of our social nature and the determination to protect values of broader concerns based on our sensibility and feeling of solidarity. There are two movements of interest to mention, both aiming at alleviating human suffering, broadly speaking. They are the anti-slavery movement and the campaigns used to mobilize support for ending the cruel manner of conducting wars.

In her illuminating essay entitled “Humanity without Feathers”, Lynn Festa, highlights the background of the movement which led to the abolishment of slavery in Britain. The force behind this movement, she notes, was the sympathy and sensibility of people in England had to the sufferings of black slaves in the distant English colonies. “Inasmuch as sympathy involves experiencing another’s feelings (that is, feelings that are by definition not one’s own),” she wrote, “it breaks down the division of self and other”.[28] This scenario shows how the ’free’ white European come to the rescue of the enslaved African at the cost of the economic interests of the English slave master. The pains which the abolitionist felt appears to be personalized in that the black victims were ”marginalized by the fact that it is not the slave but the personification of ’humanity’ that bleeds and longs to vindicate her rights”.[29] Obviously, sentiments were not the only ’playbook’ used by the abolitionist, the writer notes, as ”calls for sympathetic feeling— then as now—were tempered and supplemented by appeals to reason, to policy, to interest, to principle, to faith.”[30] In his celebrated publication entitled The Social Contact Rousseau describes the ironies of slavery by noting that “(M)an is born free, and everywhere he is in chains. One man thinks himself the master of others, but remains more of a slave than they are.”[31]

The other example mentioned above to explain the movement defending humanity is that which led to the prohibition of the savage ways of conducting warfare. Some of the champions of this cause were not soldiers or people who lost loved ones in battle fields or those whose personal safety was directly or indirectly affected by wars. As in the case of the anti-slavery activists, their campaign was to rescue the victims whom they did not know personally and wherever they were. There was no question that those who were behind the development of rules prohibiting these kinds of cruelties shared the agonies of the victims as if they themselves had been victimized.

Perhaps the most famous scholar who laid the foundation for the emergence of humanitarian law was Hugo Grotius (1583–1645). Like other writers before him (such as Francisco de Vitoria and Alberico Gentili), Grotius was concerned about the dignity of human beings and about how wars were conducted. He was especially puzzled and annoyed by why “men rush to arms for slight causes, or no cause at all, and that when arms have once been taken up there is no longer any respect for law, divine or human; it is as if, in accordance with a general decree, frenzy had openly been let loose for the committing of all crimes”.[32] According to him, the kinds of cruel and inhumane behaviour that revealed itself during his time, when the Thirty-Years religious wars were raging, were irreconcilable with Natural Law. He took this law as valid because it was based on morality (rationality). It was natural because it was universally applicable to all human beings. His writings identified elaborate rules of conducts that should be followed by all states at all times, in connection with conflicts.

The efforts made by Grotius to mobilize wider support through his writings and travelling to different countries, inspired many others, like him, to be engaged in humanitarian work. Among these was Henry Dunant, who was awarded the first Nobel Prize, and the establishment of The Red Cross in 1863. In 1899 and 1907 two important international conferences were held in The Hague (Holland) on the conduct of warfare. These paved the way for the conclusion of the first and second conventions. The horrors of the First World War led states to appreciate the importance of broadening the scope of the existing humanitarian instruments, by adding the 1925 Geneva Protocol to these Hague prohibiting the use of certain weapons.

The establishment of the United Nations in 1945 speeded up the legal evolution of international humanitarian law. The UN Charter expressed concern over the “scourge of war, which twice in our lifetime has brought untold sorrow to mankind” (preamble para. 1), and considered the achievement of “international co-operation in solving international problems of “… humanitarian character, and … respect for human rights” (art. 1(3) as one of the purposes of this organization. The pursuit of these goals and the mandates given to its General Assembly to promote “the progressive development of international law and its codification” (art. 13) gradually led to the adoption and ratification of numerous conventions transforming humanitarian law qualitatively. Examples of these include the 1948 convention on the prevention and punishment of the crime of genocide, the four Geneva Conventions of 1949, the 1951 Refugee Convention, the 1954 Convention for the Protection of Cultural Property in the Event of Armed Conflict, the 1968 treaty on non-proliferation of nuclear weapons, the 1972 Biological Weapons Convention, the 1980 Convention on the use of certain weapons causing excessive injuries, the 1993 Chemical Weapons Convention, the 1997 Ottawa Convention on anti-personnel mines, and the 2008 convention on cluster munitions. The effort to galvanize support for banning weapons of mass destruction (by using biological, chemical, and nuclear weapons) deserves special attention. The refusal of states to abandon such weapons and the efforts which they continued to make to produce and stockpile these weapons continue to endanger mankind as a whole. In this sense one can say that humanity has never been threatened as it is now.

This aside, one can say that many of the international humanitarian law instruments that have been ratified have now clarified practices which should not be tolerated during conflicts. Some of them, e.g., the genocide convention, prohibit the commission of genocide even in times of peace, a prohibition which includes complicity, attempts and conspiracy to commit this crime. The refugee convention encourages states to protect those who face a fundamental fear of persecution. Other humanitarian rules mentioned in The Hague and the Geneva Conventions outlawed the use of weapons such as poison, chemicals and expanding bullets. Abusing prisoners, hostage-taking, rape, forced relocation and the destruction of civilian properties such as pillaging, destroying hospitals and heritage were also prohibited by the same conventions.

The establishment of the International Criminal Court represents another mile-stone in the defense of humanity, since it created a forum for prosecuting the violators of international humanitarian law. Prior to this, the prosecution of these kinds of international crimes was left to the UN. This was why the UN had to create special tribunals to prosecute those who committed international crimes during the conflicts in the former Yugoslavia, Rwanda, etc. By the end of last year, 124 states had ratified the statute of this Court, making that institution a widely recognized body for monitoring respect for international humanitarian law.

The preambles of the statute of the International Criminal Court recognize “that all peoples are united by common bonds, their cultures pieced together in a shared heritage”, and express the fear that exists “that this delicate mosaic may be shattered at any time.” It recalls, further, that during this century millions of children, women and men have been victims of unimaginable atrocities that deeply shock the conscience of humanity” and that henceforth “the most serious crimes of concern to the international community as a whole must not go unpunished”. This instrument defines and elaborates the kinds of acts or conducts that should not be tolerated, namely genocide, aggression, war crimes and crimes against humanity. Article 7 specifies the recognized crimes against humanity’ if they are “committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack”. They include extermination, enslavement, attacks directed in an organized way against any civilian population, deportation, torture, forced pregnancy, collective persecution, enforced disappearance. In short, this statue has codified the pre-existing rules of international human rights law by crystallizing what were vaguely formulated before.

International human rights law: legal evolution and features

Human rights emerged as universally applicable legal rights thanks to the efforts made by civil societies, humanitarian organizations, political activists, progressive writers and states as a response to the gross human suffering and destruction seen during the Second World War.  In the course of mobilizing the masses to defeat the Fascist and Nazi states militarily, the galvanized masses and political actors were compelled to question the totalitarian and racist values and ideologies promoted by the aggressive powers. Thus, what started out as a military campaign for self-defence ended up in questioning the very structure and ideologies of the Aggressive Powers. If the new international organization that was to be established after the military campaign was to be legitimate and durable, it had to usher in a new world order which was sensitive to human rights.  It was, therefore, not surprising that the UN Charter had to “reaffirm faith in fundamental human rights, in the dignity and worth of the human person” (preamble) and considered the promotion of “respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language, or religion” as one of its purposes, in article 1(3).

This was clearly a novel development for a world that had never had a truly universal organization, let alone one that was mandated to promote this goal. The achievement can even be perceived as revolutionary since the great majority of the member-states had poor records of respecting human rights and were not equipped with human rights sensitive laws and institutions. What pushed them in this direction was the memories of the Second World War and the determination to co-operate with the UN to achieve this goal as pledged under article 56 of the Charter.

Indeed, as it turned out, it did not prove to achieve broader international co-operation once attention was turned to developing the general standard settings when the first universal document was prepared (later known as the Universal Declaration of Human Rights). This instrument was adopted on 10 December 1948 with no opposition, though eight states abstained. A factor that explains this wider base of support could be that its provisions were broadly formulated. The obligations of states to respect the proclaimed rights and freedoms were also avoided. There was the recognition that this document was not intended to be legally binding since the UN General Assembly had no power to adopt legally binding instruments. As the last preamble of this document states, the whole point was to use it as “as a common standard of achievement for all peoples and all nations” so “that every individual and every organ of society… shall 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 recognition and observance”.

The Universal Declaration recognized that “All human beings are born free and equal in dignity and rights” (article 1) and that “Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion or social origin, property, birth or other status” (art. 2). It lists the different civil, political, economic, social and cultural rights that should be promoted for all without discrimination. Using this standard setting, the UN General Assembly adopted numerous other declarations and later legally binding conventions crystallizing the recognized rights and freedoms and state obligations flowing therefrom. In 1966, for instance, the two international covenants (one on civil and political rights, and another one for economic, social and cultural rights) were adopted and both entered into force in 1975. Thus, within three decades of the establishment of the UN mankind had secured two legally binding universal human rights instruments even if the number of states that ratified them was not that impressive at the time. In the years that followed, more conventions were adopted strengthening the rights of vulnerable groups such as children, women, persons with disabilities and migrant workers, and addressing problems connected with discrimination.

One of the important feature of this development is the individualization of the recognized rights and freedoms (i.e. as the rights of every person), very much as recognized in the West traditionally. The only exception was that this time around the scope of the rights was broadened to encompass political, economic, social and cultural rights and the right holders were to be all under the jurisdiction of the ratifying states. There were a few recognized rights with collective character. They include the rights of peoples to self-determination (mentioned in article 1 of the two covenants), and minority rights (mentioned in article 27 of the covenant on civil and political rights).The other feature of these international legal instruments is the manner in which the obligations of the ratifying states were elaborated and the mechanisms established for monitoring how these obligations are complied with by considering regular reports and the submission of petitions.

Except for the right to life, equality, thought and religion, and the prohibitions of torture, cruel, inhuman and degrading treatment or punishment, the great majority of the recognized human rights are subject to restriction. The prohibition that is mentioned in article 4 of the civil and political rights covenant prohibits derogation from the obligations to respect the above-mentioned rights. This suggests that some of these rights have an ‘absolute’ character. The validity of this legal presumption is in line with article 53 of the Vienna Convention on the Law of Treaties which recognizes the existence of a pre-emptory norm of general international law (Jus Cogens) – i.e. “a norm accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted”.

While the international community can take pride in having developed an international regime of human rights by adopting a long list of binding conventions, and developing the monitoring mechanisms, the actual record of states in complying with what is ratified is not that impressing. This monitoring system uses two separate paths to consider how states are complying with their human rights obligations. The treaty-based monitoring bodies examine the reports of states, and the communications that are sent by victims or state parties alleging human rights violations. The UN Charter-based monitoring bodies also consider the reports of states and those of the special rapporteurs, working groups and others. Using these and other sources of information, the UN Human Rights Council publishes its periodic reports on the human rights situation inside the member state. There are also other offices that play important roles in promoting or monitoring human rights. These include the High Commissioner for Human Rights, the High Commissioner for Refugees, UNICEF etc. Obviously, the effectiveness of these methods can be questioned and there is a long way to go when it comes to improving the system.

Humanitarian and human rights law: areas of intersection

The fact that international law has followed two distinct tracks when it comes to developing the rules related to international human rights and humanitarian law does not mean that there is no convergence between the two. Both derived their justifications from the need of protecting the dignity and worth of the human being. Both provide protection from slavery, forced labour, torture, cruel, inhuman and degrading treatment or punishment and rape. Both require humane treatment in prison. Humanitarianism looks at the broader context of what concerns us all and is guided by the values of humanity. These values arouse sympathy, empathy, love and compassion. The human rights laws are framed as the rights of the individual in the political context, rights which everyone is entitled to. Some of these rights are justiciable and even empowering (e.g., the rights to vote and take part in government).

Needless to say, the monitoring mechanisms of the international regime of human rights and international humanitarian law require improvement. There is a new doctrine which has been invoked lately to enable the international community to protect those that are exposed to serious international crimes: the international responsibility to protect (R2P). This doctrine has been invoked by the Security Council and the General Assembly (e.g., in the 2005 World Summit) in relation to serious conflicts and tragedies where states are seen to be either unable or unwilling to protect their own populations. This idea suggests that serious international crimes should be viewed as special concern to mankind as a whole. This fits the claim that there is humanity.

One can wonder, at the same time, whether the doctrine of R2P which has been invoked to ’rescue’ oppressed victims from the cruelty of their political leaders is always non-political, one that is just moved only by humanitarian considerations? If the intervention in Libya was triggered only by the urgency of saving Libyans, why abandon them now when the humanitarian situation facing them is much worse than before? If those that are intervening in the Syrian conflict are really moved by the tragic plight of Syrians in the hands of their cruel regime, and cruel it is, why are some of the states that are intervening in that conflict hesitant to even give asylum to Syrian refugees? Having said this, just because this doctrine can be abused by states does not mean that the international community should abandon it. If developed well, it can be used to vindicate the rights of humanity, irrespective of whether the crisis was brought by breaches of international human rights obligations or those flowing from international humanitarian law. In this sense, one sees a convergence between these two spheres of international law.

*Eyassu Gayim, Associate Professor, School of Global Studies, University of Gothenburg (Sweden). This contribution was presented at the Nordic Summer University conference held in Wroclaw, Poland, on 25 February 2017. The author is grateful to the Nordic Summer University for the support given to him to participate in this conference, and for the valuable comments given to language of this paper by Reverend Ezra Gebremedhin and Mogens Chrom Jacobsen.

Endnotes

[1] English Oxford Living Dictionaries https://en.oxforddictionaries.com/definition/human_being; and also http://www.dictionary.com/browse/humanity

[2] Thomas Hobbes, Leviahan (1651), Part II, Of Common-wealth available in the internet (http://www.philosophy-index.com/hobbes/leviathan/17-of-causes.php

[3] Immanuel Kant, Thomas Kingsmill Abbott, translator, The Metaphysical Elements of Ethics (Cambridge, Cambridge University Press, 1991), in, http://www.philosophy-index.com/kant/metaphysical_ethics/introduction.php

[4] Immanuel Kant, The Metaphysics of Morals, p. 255; and Richard Dean, The Value of Humanity in Kant’s Moral Theory (Oxford: Clarendon Press, 2006), especially pp. 7-8.

[5] Dictionary.com, in https://www.merriam-webster.com/dictionary/humanity Likewise, in Merriam-Webster (https://www.merriam-webster.com/dictionary/humanity) we see this term defined either as “the totality of human beings or the human race” or “The quality of being human or humane” in the sense of being “compassionate, sympathetic, or generous behavior or disposition”  See further Encyclopaedia Britannica, vol. 11 London: Encyclopaedia Britannica, Inc., 1969), p. 825; Peters, Pam The Cambridge Guide to English Usage (Cambridge: Cambridge University Press, 2004), p. 256, and Joyce M. Haukins & Robert Allen, The Oxford Enclopedic English Dictionary (Oxford: Clarendon Press, 1991).

[6] David Humes, An Enquiry Concerning Principles of Morals. (London: Strand, 1751- 1777 edition of the Essays and Treatises on Several Subjects reproduced in http://www.davidhume.org/texts/epm.html), conclusion M9.13.

[7] Ibid., conclusion, M9.7.

[8] Michel Agier, “Humanity as an Identity and Its Political Effects”, Humanity: An International Journal of Human Rights, Humanitarianism, and Development > Volume 1, Number 1, Fall 2010 (https://muse.jhu.edu/article/394858), p. 31.

[9] Charles Sherlock, The Doctrine of Humanity: Contours of Christian Theology (Leicester: Inter-Varsity Press, 1996), p. 238.

[10] Ayn Rand, The Virtue of Selfishness: A New concept of egoism (New York: An Nal Book, 1962 (1964), p. 33.

[11] Ibid, p. 34.

[12] Richard Rorty, Human Rights, Rationality, and Sentimentality, reproduced in www.nyu.edu/classes/gmornan/3/RoRTY.pdf  pp.167-169 and 177.

[13] Ibid., pp. 177.

[14] Geertz, Clifford. 1963. ‘The Integrative Revolution: Primordial Sentiments and Politics in the New States’. In Clifford Geertz, ed. Old Societies and New States: The Quest for Modernity in Asia and Africa. London: London Free Press, 255–310.

[15] Agier, p. 30

[16] See the first preamble of the 1998/9 Statute of the International Criminal Court, in http://www.un.org/law/icc/index.html

[17] Jack Donnelly, Universal Human Rights in Theory and Practice (Ithaca: Cornell University Press, 1989), p. 16.

[18] Eyassu Gayim, “The Discourse on Human Rights and the International Regime of Human Rights”, Nordicum-Mediterraneum Vol  11, no. 4, 2016.

[19] Lorrin Thomas, Humanity: An International Journal of Human Rights, Humanitarianism, and Development, Volume 6, Number 2, Summer 2015 pp. 337 – 340: James Dawes, Samantha Gupta, ”On Narrative and Human Rights”, Humanity: An International Journal of Human Rights, Humanitarianism, and Development, 2014, Vol.5(1), pp.149-151 (https://muse.jhu.edu/article/536275); and Alison Dundes Renteln, International Human Rights: Universalism Versus Relativism, Frontiers of Anthropology, vol. 6 (Newbury: Sage Publication, 1990), p. 17.

[20] Austin Sarat and Thomas R. Kearns, Human Rights: Concepts, Contests, Contingencies (Ann Arbor: University of Michigan Press: 2001) p. 11.

[21] Claire Breay, Julian Harrison, Magna Charta: an introduction, in https://www.bl.uk/magna-carta/articles/magna-carta-an-introduction.

[22] https://www.archives.gov/founding-docs/declaration-transcript

[23] Susan Maslan, “The Anti-Human: Man and Citizen before the Declaration of the Rights of Man and of the Citizen”, South Atlantic Quarterly, Spring/Summer 2004 103(2-3), p. 360 available in http://saq.dukejournals.org/content/103/2-3/357.full.pdf+html

[24] http://www.historyguide.org/intellect/declaration.html

25 UNHCHR, ”What are Human Rights?”, http://www.ohchr.org/EN/Issues/Pages/WhatareHumanRights.aspx

[26] Donnelly, p. 1.

[27] Austin Sarat and Thomas R. Kearns, p. 2.

[28] Lynn Festa. “Humanity without Feathers”, Humanity: An International Journal of Human Rights, Humanitarianism, and Development, Vol. 1, no. 1 Fall 2010, p. 7, in https://doi.org/10.1353/hum.2010.0007

[29] Ibid., p. 9.

[30] Ibid., p. 19.

[31]Jean-Jacques Rousseau, The Social Contract, opening part of chapter 1, in http://www.sparknotes.com/philosophy/socialcontract/section2.rhtml

[32] Reproduced in, Micheline R. Isyay, ed., The Human Rights Reader: Major Political Essays, Speeches, and Documents from Ancient Times to the Present, 2nd ed. (New York: Routlege, 2007) p. 128, available in google.com.

 

The Discourse on Human Rights and the International Regime of Human Rights

Introduction

The controversies surrounding the rights and freedoms which we are entitled to have complex sides, and often depend on the justification used for recognizing the rights. The common justification used in defense of these rights is our nature, which again triggers many other questions.  Do we have unique attributes justifying the recognition of certain rights? Is the human being a social being or a self-centered, autonomous unit? Is s/he a nice or humane person? If the latter is not the case why punish inhuman or cruel behavior? Who is to decide what the requirements of the state of nature are for purposes of forming the human rights law, and how? Should this be left to religion, culture, reason, governments or the requirements for survival? Is the human rights talk basically a religious talk? Is it essentially a political subject-matter? Do human rights exist? If they do, are they universal, to be interpreted and applied in the exact same ways globally, or are they relative – to be harmonized with the local religious, cultural, political and other requirements? How were these questions answered by the international community when it developed the international regime of human rights?

The existence of the international community itself is sometimes questioned, especially by the adherents of realpolitik, mainly because there is no centralized legislative and law enforcing body. Instead, the skeptics speak of the presence of ‘international societies’ and the anarchical international order. Yes, international law is weak because its foundation is state sovereignty, and it lacks a centralized law-enforcing body. However, that in itself does not prevent the emergence of an international community. No one denies that international law is disregarded by some or many states now and then. Individuals and political actors too violate or disregard national laws, yet, we hardly question the existence of these laws or the national communities when this happens. Just as national laws and national communities are socio-political constructions, international law and the international community too are socio-political construction that exist because we need them.

The fact remains that the overwhelming majority of states use international law on a daily basis – to facilitate trade and commerce, to regulate health issues, to facilitate communication, to stimulate tourism, to promote educational, cultural or other activities. All the sovereign states are members of the United Nations, and meet regularly to discuss matters of common interest. This organization has clear-cut purposes and principles and monitoring bodies. It is true that the system is based on state sovereignty (article 2(1) of the Charter). However, there is also the requirement to comply in good faith with obligations assumed under the ratified legal international instruments (art. 2.2 of the Charter). Failure to do so has political consequences, because disruptive or anarchical conducts are not accepted. When international peace, security and order are threatened, the UN Security Council is required to respond to restore the international order (collective security). Its decisions are binding on all states (articles 24 and 25 of the Charter). The UN and its members have always proceeded on the assumption that there is an international community that is legally formed.

The UN is not the only international organization that is responsible for the international regime of human rights. The International Labour Organization, UNESCO, WHO, FAO, regional organizations and non-governmental ones too influence the direction in which the regime of human rights regime is developing. ILO uses more than 180 conventions related to economic and social rights (and recommendations), more instruments than those adopted by the UN. The same can be said about the mandates, laws and activities of the other specialized agencies. Their relationship with the UN is coordinated by the UN Economic and Social Council, as provided by articles 63 and 64 of the UN Charter. Regional organizations and non-governmental organizations also cooperate with these agencies and with the UN even if they have their own human rights mandates, bodies and activities. While it would be wrong to claim that there is no tension in how all these organizations operate when pursuing their respective human rights agendas, the differences that exist are sometimes exaggerated.

The existence of the international regime of human rights is questioned or belittled mostly because of skepticism towards international law. The factors which speeded up the evolution of international human rights law are linked to the horrors endured during World War II. The peoples of the world were alarmed by the grotesque instances of inhumanities and the sufferings of that time as well as by the disorder and devastation that accompanied it, evils which took the lives of well over one hundred million people. By the end of that war, the insecure and militarily exhausted states, including the victorious powers, had to take a pause for soul searching to find the formula for ensuring lasting peace and stability without sacrificing human values. It was abundantly clear that the ideological and political goals of the aggressive powers were hostile to the human rights values. There was no international human rights regime in place to challenge their conduct. The earlier organizations were not fit for this, which is why the Concert of Europe or the League of Nations failed to guarantee international peace and justice. If the new international organization that was contemplated for the post-World War II era was to be legitimate and endure, it had to embrace human rights values. The only problem ahead was on whose image this world order should be shaped. Both the Western and the Eastern powers were determined to use their political and diplomatic weapons to win the hearts and minds of the peoples of the world.

The drafters of UN Charter justified the universal promotion of human rights based on “faith in fundamental human rights, in the dignity and worth of the human person (and), in the equal rights of men and women”. Now that the professed racist powers were militarily crushed, it became inconceivable to tolerate the kinds of inhumane political systems these states once had or to resist the emergence of an international order based on the promotion of respect for human rights. It is true that the Allied Powers were forced to enter that war for self-defense rather than in opposition to racist policies and conducts. However, once the war was in full swing, the narratives had changed to that of a military campaign against Fascists and Nazis and their sympathizers: a struggle between good and evil (progressives and reactionaries).

The inscription of human rights in the UN Charter, in 1945, transformed the idea of human rights from a philosophical and national legal concept to a universal legal concept. The UN was also given the mandate of “promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language, or religion” (article, paragraph 3) More specifically, its General Assembly, and the Economic and Social Council, under it were assigned to promote: “Universal respect for, and observance of, human rights and fundamental freedoms for all without distinction as to race, sex,    language, or religion.” (art. 55, and 60. Emphasis added).

Further, the members of the UN gave their pledge, under article 56, “to take joint and separate action in co-operation with the Organization for the achievement of the purposes set forth in Article 55.” Although the political and legal pillars for constructing the international regime of human rights were clearly made, in 1945, it took time before this regime emerged since it could not operate without defining the rights and obligations and developing the monitoring mechanisms.

The UN Charter does not list the human rights that should be acknowledged, although reference is made, in broad and vague ways, to the obligations to respect the principle of equal rights (art. 1(2), 1(3)) and some of some economic and social rights (article 55, 73 and 76), especially in the context of the dependent territories (colonies). The task of preparing the document which lists these human rights was left to the General Assembly which was expected to initiate studies and make recommendations for “the progressive development of international law and its codification” and “assisting in the realization of human rights and fundamental freedoms” (art. 13.1.a. and c. of the Charter).

When the UN started to prepare the first universal instrument which would identify, define and proclaim the human rights that should be recognized (by the Universal Declaration of Human Rights) the ideological controversies relating to discourse on human rights surfaced in highly politicized ways. As expected, the Western states defended the individualized civil and political rights in line with their national laws and political traditions. The Socialist states propagated for economic and social rights, loyal to the Marxian traditions. The Latin America states stood behind the Western position since they had similar political systems to that of the West. The Organization of the American States even proclaimed its own Declaration on the Rights and Duties of Man before the UN proclaimed the Universal Declaration of Human Rights. Most of the remaining Third World countries backed both positions, although they were worried about the political implications of some of the political rights. Since it was known from the outset that this instrument was not intended to be legally binding (because under article 10 of the Charter the UN General Assembly resolutions are only recommendatory) the insertion of both these sets of rights did not prove to be problematic. After all, as the last paragraph of this Declaration makes it plain this instrument was to serve merely “as a common standard of achievement …to promote respect for these rights and freedoms and by progressive measures… to secure their universal and effective recognition and observance”.  Still, the six Socialist States, South Africa and Saudi Arabia abstained when the Universal Declaration was proclaimed on 8 December 1948.

Using this new standard setting, the UN General Assembly proceeded to prepare and adopt other non-binding declarations which were intended to provide protection from race and gender-based discrimination and to defend the rights of the members of vulnerable groups, such as, children, refugees, the disabled, etc. While these instruments defined the rights of the beneficiaries and mentioned the kinds of measures that should be taken to make them practical, they lacked the enforcement mechanisms precisely because they were not perceived to be legally binding.[1] Later, however, this ‘soft-law’ political approach was complemented by preparing and adopting binding human rights conventions which came into force through ratification.[2]

We now have not only an international regime of human rights which uses international law, but also two separate paths to monitor how states conduct themselves in accordance with their  human rights obligations. The convention-based monitoring bodies consider the reports of states submitted pursuant to the ratified legal instruments and publish their reports. They also examine the petitions sent by victims and state parties who allege the existence of human rights violations, provided that the concerned state has accepted this system. The UN Charter-based monitoring bodies consider the reports of states and those submitted by states, by special rapporteurs (country-rapporteurs and thematic rapporteurs), by working groups and others. Bearing this in mind the UN Human Rights Council publishes country reports on the human rights situation inside states. The High Commissioner for Human Rights represents the UN on matters concerning human rights also by visiting states, conducting inquires or fact-finding missions, to inspire states to ratify human rights instruments, etc.. The UN High Commissioner for Refugee follows developments concerning refugees, including when it comes to mobilizing contributions for the welfare of refugees, urging states to share the burden of accepting refugees and ending the involuntary deportation of asylum seekers whose lives could be endangered. There are many other UN offices, units and programs that also provide important functions or monitor human rights issues. Among these are UNICEF, World Food Programme, UN-Habitat, and the Commission on the Status of Women. Complementing these are also the human rights mechanisms that are used by the specialized agencies and the regional organizations.

With all this evidence at hand, it is difficult to deny that we now have an international regime of human rights which is politically and legally constructed in the process of giving effect to the purposes and principles of the UN Charter. This regime governs how states behave in the field of human rights by monitoring the application of the adopted international instruments. This is not to deny that this regime has weaknesses emanating from the absence of centralized legislative and enforcement bodies. If the existence of regimes is measured on the basis of the strength of the applicable laws or the strength of the monitoring bodies and mechanisms of these laws, then the existence of many national regimes would also come to doubt. Clearly, there is a long way to go before one is fully satisfied and the political roads ahead may not be that smooth. Bridging the ideological and political gaps surrounding the human rights debate is far from easy. But it is equally important not to forget or deny what has been achieved. The UN has managed to navigate through the past troubled waters. How this was done will be clarified later after first examining closely what the contentious ideological and political positions are.

The discourse on human rights

Right: As can be seen from the long list of definitions provided in dictionaries the word ‘right’ is understood differently depending on the context in which it is used. Its adjectival usage means accurate or correct (as in the ‘right answer’), exact or perfect (as in it ‘fits right’), reasonable or sound (‘right mind’), immediate (‘right now’), fair (‘right share’). It is also used to describe directions (the opposite of left) including political or ideological stands (as in ‘right wing’).[3] Its noun form (‘a right’) denotes title, privilege, guarantees, power officially recognized.[4]  The New International Webster’s Comprehensive Dictionary of the English Language adds one other definition of a right which is described as that which is given “in accordance with or conformable to moral law or to some standard of rightness; equitable; just; righteous… ”[5]

Indeed, most leaders want to convince us that the rights which are recognized in our national laws have a just character or are also correct, morally speaking. This, however, may not always be the case, since a right that is sanctioned by law or culture can be wrong morally speaking, depending on the frame of reference one uses. The right to buy and sell human beings, which was legally recognized in some countries in the past, or that which tolerates the freedoms of men to ‘buy sex’ from desperate women is morally wrong. The justness of the traditional rights of parents to arrange for the marriages of minors or that of a man to inherit the wife of his deceased brother in accordance with cultural norms or traditions in some countries, are equally questionable. It is interesting to note that these rights continue to be exercised although there are also laws which require full consent for marriage in these states. In other words, one observes a certain tension between rights that are derived from culture and traditions and those emanating from laws.

Human: One of the reasons why scholars disagree on the kinds of rights and freedoms that should be acknowledged is the divergence of views on the nature of the human being and hence on what is due to him/her as just. Inseparable from this is the requirements of responding to order and stability when living in social settings. For Thomas Hobbes (1588-1679) human beings were, by nature, evil-minded, ego-centric, jealous and power-driven individuals. Although he starts by accepting the existence of ‘natural rights’ he concluded by calling for their surrender – in favor of a chosen despot for the sake of peace and the general welfare. If this is not done, the cycle of envy, hatred and competition would only further war of all against all.[6]

Hobbes’s premise was rejected by Immanuel Kant (1724-1804) because it reduced the state of nature to “a state of absolute injustice, as if there could have been no other relation originally among men but what was merely determined by force…””[7] For Kant to relinquish the natural inborn rights amounts to relinquishing being human. The purpose of civil union should therefore be to protect those “inborn” rights based on social contract by ensuring “the right of every citizen to have to obey no other law than that to which he has given his consent or approval.” ”[8] His thoughts were inspired by the positive impression that John Locke (1632-1704) had concerning human nature, and his call for the protection of natural rights. As Locke saw it, the aggressive behavior which Hobbes noted were only consequences of defying the demands of nature to respect life, liberty, possession and other interests which create self-defense, retribution and hence disorder. .[9]

Theologians consider humans as social creations that should live in peace and harmony, and that have duties towards one another (inside their communities). Since religion also prescribes what the acceptable rights and duties are, theologians see the talk about human rights as basically a religious talk.[10] For Christians, this means following those Divine commands stipulated in the Bible. For Moslems, it is that which is provided by the Islamic Shari’ah and the “divine commands, which are contained in the Revealed Books of Allah.”[11]

Atheists and most liberals or libertarians do not subscribe to this point of view for different reasons. For atheists religion is fictitious, and man’s creation. Liberals and libertarians are interested in empowering individuals by maximizing the enjoyment of individual freedoms, rather than restricting them. According to Ayn Rand (1905-1982), rights emanate from ‘man’s nature’ (‘the law of identity’). She considered them to be “the property of an individual”, and “a man’s freedom of action”[12], which are used to secure the “human good”, including the protection of selfishness without requiring sacrifices for anyone. [13] This is why she insisted that right should always be articulated as individual freedom of action and thus as something individualized.[14]

Socialists approach mankind as social. Egocentric and inhumane characteristics are inherited from the conditions of life, rather than being natural attributes. As Karl Marx (1818-1883) saw it, Hobbes had confused class war with ‘war of all against all’ and wrongly linked the conflicts which he observed with the state of nature. Although Marx was in full agreement with Rousseau’s observation that mankind was born free but lived in chains, he rejected Rousseau’s prescription calling for defending ‘the rights of man’ because these rights were framed in the context of the appropriation of private property inside the political state. For him, as long as social relations are based on private property relationships, we can only behave as representatives of property. These rights, as articulated by Rousseau and the other supporters of the capitalist order, should be rejected because they do not “go beyond the egoistic, man as he is, as a member of civil society; that is, an individual separated from the community, withdrawn into himself, wholly preoccupied with his private interests and acting in accordance with his private caprice.”[15]

Human rights: sources/foundation/origins. The sources, foundations or origins of human rights are generally approached from the perspectives of the two opposed schools of thoughts: Natural Law and positivism. Proponents of the former are sub-divided between those who follow the spiritual line (Divine Law) and the secular path (higher reason or morality). The former is defended by theologians who rely on religion as the primary source for valid rights, freedoms and duties. For them conducts and social relationships that defy the tenets of religion constitute sins that are punishable. There is no room for fetish-driven ways of living, and deviations determined by individual morality. Even if the law permits this by protecting the right to privacy, it should not be followed for such laws are not proper “but a corruption of law.”[16]

Natural Law is also defended on secular grounds by those who invoke “higher reason” or “rational nature” – from which concepts such as justice, equity, modesty and the likes are derived from.[17] Thomas Hobbes used this when he defended the existence of natural liberties and freedoms in the state of nature, and which he wanted us to surrender in favor of despotism for the sake of peace and order.[18]  John Locke too believed that we had inherent rights, such as those protecting life, liberty and property, those that should not be taken away.[19]  Kant distinguished between natural or innate rights and positive or acquired rights. He called the former innate rights, derived from “practical laws of reason” and that constitute “the Birthright of Freedoms” of every person..[20] He approached natural rights from “a pure practical conception of the reason in relation to the exercise of the will under laws of freedom”[21], as those that should neither be restricted nor denied by man-made constitutions since they are “deduced from principles a priori as the condition of such a constitution.” [22]

Liberals and libertarians vigorously defend individual liberties because the ontological core of their school of thought is individualism. “It is from this premise that the familiar commitments to freedoms, tolerance and individual rights are derived.” [23] Their point of departure may vary but the end point is similar in that both see individual rights as inalienable. “If we are serious about the idea of human rights,” maintained Jack Donnelly, “there is no alternative to holding firm on the principle that they are the rights of individuals and of individuals only.”[24] Rand, a libertarian, offered the following explanation: “If man is to live on earth, it is right for him to use his mind, it is right to act on his own free judgment, it is right to work for his value and to keep the product of his work. If life on earth is his purpose, he has a right to live as a rational being; nature forbids him the irrational.”[25]

Rand was unapologetic in defending individual morality, in praising unregulated capitalism and in dismissing group rights or economic, social and cultural rights not least because they are ‘solidarity’ rights that are financed by unjustly sacrificing individual rights (through heavy tax) to benefit others. According to her:

“There is no such thing as ‘a right to a job’ – there is only the right of free trade… no ’right to a home’ …There are no ‘rights to ‘fair’ wage …There are no ‘rights’ of special groups’ … There are only the Rights of Man…Property rights and the right of free trade are man’s only ‘economic rights’ (they are, in fact, political rights…)”[26]

In essence, the position which regards the individual as autonomous unit and which questions his/her social nature consider human beings very much like finished industrial product like a car or a piano that is ready to operate, as if we are not continuously enriched or developed mentally and emotionally from birth to death. If we are not social how do we end up possessing linguistic, religious and cultural identities? How can loyalty, nepotism, fanaticism, social prejudice, racism and extreme nationalism be explained? Why bother to take part in cultural festivities, or pay a high price for expensive cars, cloth, perfume or watches or get satisfaction from providing altruistic or humanitarian assistance? Why use prison for punishment (including for offending ‘public morality’)? Why bother about problems emanating from social isolation? The fact remains that a person who is totally isolated for too long from others can end up being mentally derailed – if not suicidal.

Communitarians reject the liberal and libertarian viewpoints of the autonomous nature of the individual. Instead, they proceed from the premise that all individuals derive their identity and wellbeing from their social environment.[27] “The highest conceivable form of human society”, according to Huxley, “is that in which the desire to do what is best for the whole, dominates and limits the action of every member of the society.”[28] Those who reject the social nature of mankind are not only dishonest since they know how social they are, but are actually hiding behind individualism for purposes of obstructing the efforts that are made to protect and promote the rights of those marginalized groups.[29]

Positivists dismiss inalienable natural rights as nonsense. According to Jeremy Bentham, the father of positivism, the proponents of Natural Law are very good at fabricating fictitious rights and ‘laws’ using passions.[30] Real rights exist only in the political world and are recognized and enforced by laws. “There are no rights without law”, he wrote, and “no rights contrary to the law.”[31] For Bentham, governments were established because there are no rights “anterior or superior to those created by the law”[32] Legal rights which are enacted by governments determine legitimate freedom of action and the enjoyment of the benefits to be given to the right-holders.[33]  To be practical, ‘right’ would have to be complemented by obligations, and when the latter are violated they become offenses.[34]  In short, “law, offence, right, obligation, service, are therefore ideas which are born together, which exist together, and which are inseparably connected. …”[35]

Karl Marx appreciated the manner in which Natural Law was ridiculed by Bentham. He also discredited Bentham for accepting the legitimacy rights made by governments. This was why he dismissed his intellectual contributions as nothing more than a “pedantic, leather-tongued oracle of the ordinary bourgeois intelligence”[36] As Marx saw it, the political state enacts laws recognizing rights and freedoms to protect the interests of the oppressing class by subordinating the oppressed groups. The kinds of rights which Marx and his followers endorsed were those that helped the proletarian class in achieving their revolutionary goals. They also supported national self-determination as a means of bringing about emancipation from their oppressive, alien rulers. Marx did see the advantages in the few ‘illusive’ ‘rights of man’ proclaimed by the American and French revolutionaries, except those that can be used to speed up the proletariat’s revolution.[37] The writings and campaigns of Karl Marx and his followers did serve as powerful engines for stimulating the revolutionary changes seen in Europe, during the second half of the 19th century, including the emergence of national states.

The divergent approaches to the definition. With so many differences in the perception of the sources, justifications, objectives and nature of human rights, the definition of ‘human rights’ can only be confusing, to say the least. Much depends on which side one takes when speaking about this contentious subject. Thomas Perry understood this subject in the religious sense, calling it a religious talk.[38] Jack Donnelly saw it as a set of socially constructed “moral claims” relating to entitlement “held by all human beings simply because they are human and exercisable against the state and society” and that is used to shape “social and political relations.”[39] According to R.J. Vincent, these rights represent “the moral possessions to which all human beings are entitled, and each of them equally.”[40] For Alan Gewirth they constitute “a species of moral rights” or requirements that are derived from valid moral principles.[41] And in the opinion of Justice Stayton this “means nothing more nor less than a claim recognized or secured by law.”[42]

One of the reasons why writers link claims to rights is their desire to give the kinds of practical support that strengthens rights. “Having rights, of course, makes claiming possible; but it is claiming that gives rights their special moral significance …”, states Feinberg. “Having rights enables us to ‘stand up like men’, to look others in the eye, and to feel in some fundamental way the equal of anyone.”[43] Claim is here given a normative character, as if right cannot stand without it. Feinberg also admits “(I)t will not help to attempt a formal definition of rights in terms of claims, for the idea of a right is already included in that of a claim, and we would fall into a circle.”[44]

The academic rivalry. Because human rights are explained in political, philosophical, religious, moral, legal and other senses, the disciplinary rivalry to claim it or to exclude others is serious. There are philosophers who take pride in the roles played by earlier philosophers in elucidating and popularizing this concept, a task which requires the input of contemporary thinkers. Jurists are happy that human rights are regulated by laws, not least because this fact makes them the only competent experts in the field. As one professor of politics, David Beetham, conceded “all these are eminently suited to analysis from a legal perspective” and “political science as a whole should have preferred to keep the subject at arm’s length.”[45]

For Michael Freeman the concept of human rights cannot be seen outside the political framework since these rights are “made and interpreted by a political process”, which is why he warns legal positivists not to be carried away by legal stipulations alone: “He maintains:

“The legal-positivist approach to human rights not only misrepresents their character but also has dangerous implications. …Legal positivists sometimes say that the only rights are those that are legally enforceable … it is not necessary that they should be so, and the concept of human rights implies that often they are not.”[46]

There are social scientists, especially social workers, that have expressed regret over the attempts that are made to exclude them from this field. According to Professor Elisabeth Reichert, a professor of social work, “Not only are politicians muddying the waters regarding human rights, but lawyers, too, speak of human rights in legalese that is more applicable to the courtroom or an academic treatise than to everyday life”[47], stated one professor of social work, Professor Elisabeth Reichert. In her view, “social workers have at least as much claim to the exercise of human rights principles as do politicians and lawyers.” [48]

Universalism and relativism: The debate relating to this topic may be intellectually stimulating but it is also politically divisive and toxic. This is not simply because it is approached with emotionally charged arguments, claims and acrimonious language, but also because the ideological and political interests behind the debate are obvious. The roots of most of these controversies go back to the familiar core issues concerning who the human being by nature is, what the sources, foundations and origins of human rights are, and the weight that should be given to cultural values. We shall lift forth three core issues around which most of the past debates have been rotating. These are i., whether there are inalienable or fundamental rights that should be accepted as universal and others that are relative; ii. whether there is a room for interpreting the rights recognized in the international regime of human rights bearing in mind the requirements of local religions, cultures, traditions, and the economic and political conditions, and iii., whether the origins of human rights are to be traced only to Western ideals and traditions alone and if, assuming that that is the case, whether this Western model should serve as a universal model for rights.

Before addressing these issues, it is necessary to identify who is behind the opposing camps. The literature on this subject reveals that universalism is strongly supported by the Western countries and echoed by most Western scholars. Relativism is vehemently defended by the governments of Third World countries and scholars engaged in the subject. However, this simplistic division can be misleading there are Western scholars that share the views of moderate relativists, as there are Third World relativists who defend aspects of universalism. This in itself reveals the existence of a third front which seeks a middle-of-the-road approach to reconcile the two extreme positions. Interestingly enough, one also notices a meeting point where the extremists on both sides converge, as will be explained later.

Linked to the issue of avoiding the dangers of oversimplification is the problem of how to interpret the word ‘Western’. Is this a geographic designation? If so, who is included in and who is excluded from this understanding of the term? Can Marx be included in the Western camp, as some claim [49], even when though his writings were so hostile to Western capitalism and to individual rights? For him, his writings were ‘scientific’, derived from the use of dialectic and historical materialism which any other person from any corner of the world could have written. If the term ‘West’ designates an ideological tradition, should the countries of Eastern Europe and Russia and all of the Latin American countries be included?

This is not to suggest that there is no such a thing as ‘the West’. In our political world we do see political camps and a harmonization of policies between states described as ‘Western’, ‘Eastern’, ‘Non-Allied Nations’, etc. also when human rights approaches or issues are debated at the universal forum. We have regional organizations, such as the European Union, the African Union and the Arab League operate, and these groups also join like-minded ones outside their own organizations when they operate in defense of their common interests. However, equally important to note is that reducing the discourse on human rights to issues of political confrontation between the West and the rest could blur the complex nature of this subject. Regrettably, this is how this debate has been used and this is how we shall proceed in approaching it now.

Universal human rights is presented by most Western writers and governments as that originated from the West and which reflects Western ideals, values and traditions. As Sir Stephen Sedley understood it, “human rights are historically and ideologically the property of the liberal democracies of the West”[50] According to Forsythe, “human rights as intellectual construct … was indeed associated with the west.”[51] Jack Donnelly traced this to European writings, ideals and values, those which entered “the mainstream of political theory and practice in seventeenth-century Europe.”[52] Michael Freeman pin pointed this to“(T)he first systematic human-rights theory” as formulated by John Locke who ”assumed that God was the ’source’ in question.”[53] The proponents of this position also dismiss the notion that non-Western societies have contributed to the human rights concept as “historically inaccurate.”[54] Underscoring this same position, Forsythe wrote: “Other regions or cultures displayed moral principles and some movements in favor of some version of human dignity but they were not grounded in a right discourse”[55]

More concretely, Donnelly described the nature of these rights which have originated in Europe and which should be regarded as universally valid as those that are: “inalienable rights: one cannot stop being a human being, and thus cannot stop having these rights … (they) rest on and seek to realise a particular conception of human nature, dignity, well-being, or flourishing. Human beings are seen as equal and autonomous individuals rather than bearers of ascriptively defined social roles”[56]

The refusal of non-Western governments and writers to endorse the position above has been viciously attacked by some of the proponents of universalism. Rhoda Howard, for example, had difficulties in understanding why African elites have “to adopt a defensive posture, arguing for the uniqueness of African culture, to explain why Africa cannot implement all of the Western and United Nations’ ideals of human rights”.[57] As she saw it: “The advocacy of a theory of African communalism by African intellectuals may well be in their own self-interest. In general the defence of ‘indigenous’ customs by African intellectuals may facilitate their ‘big-man’ domination over local groups who find their cherished value threatened.”[58] Likewise, discrediting the arguments used by the Asian leaders and intellectuals who defended “the Asian value”, Michael Freeman stated: “Many individuals and groups throughout history have claimed to speak for ‘the people’, but we have theoretical and empirical grounds for being quite skeptical of such claims. Theoretically, elites may well lack the capacity to understand the culture of the people and may well lack the incentive to understand it. Empirically, we know that elites have commonly been unconcerned with, or hostile to the culture of the people.”[59] Endorsing this position Jack Donnelly calls the defense which the leaders and elites of the Third World countries as ”cynical manipulations” since they themselves often embrace the Western ways of life..[60]

Relativists dismiss the premises and conclusions made by universalists to market the Western model of human rights to the rest of the world. According to them, if Europe is the origin of human rights just because John Locke and the others Western Natural Law thinkers wrote about it, then the sources of rights are incorrectly presumed to be these writers, when what they wrote claim that rights are derived from nature or the Creator. If the latter is the case, the origin of human rights cannot be geographic, as if rights are patented products. Relativists did not question the significance of the contributions made by Western thinkers for the evolution of the human rights that are recognized in the West or for the political process that led to the emergence of the Western model of rights. What they are saying is that the six thousand or so societies outside the West too had their own thinkers and have constructed their own models of human rights reflecting their needs and interests.

The other problem with the approach taken by Universalists in this regard is their refusal to accept the validity of collective and group rights that are acknowledged by non-Western cultures just because they differ from the individualized approach to rights. If human ideals, aspirations and values are derived from morality, as most of the defendants of universalism maintain, there must surely be different ways of constructing human aspirations, rights and obligations based on the prevailing conditions and mores, other than those which work in the West. The fact remains that different societies use different types of moral codes. What is acceptable in one place is not necessarily acceptable elsewhere.

Viewed from this perspective, it is not difficult to understand why scholars from the non-Western societies feel offended by some of the remarks that are made discrediting relativism and belittling the significance of the non-Western value systems for human rights. “Before seeking to criticize practices in another culture in the name of human rights” stated one Nigerian professor, “one should ask how we might feel if people from other cultures questioned practices within our own cultural community.”[61] As these scholars see it, respect for social values and the collective interests have crucial importance and are linked to the enjoyment of economic, social and cultural rights. Without the latter, human dignity and worthiness cannot be guaranteed. This is also why most Third World scholars regret to read many Western writings without understanding the very context the peoples in the Third World live. Professor Hountondji from the University of Benin, wondered:

“Who has decided from now on, human history must reproduce everywhere the choices or, at best, the alternatives of European history, that these alternatives were the only ones imaginable and practicable…?”[62]

As this scholar saw it, individual morality as appreciated in many Western societies is at odd with the collective morality valued in African societies. The distinction between these two value systems should not be belittled, since in the African societies:

“[T]he individual is nothing in himself and has value only when linked to his people. Above the rights of man is therefore the right of peoples. No conflict between these two orders can be tolerated: the individual has rights only in so far as he fulfils his obligations towards his people, and wherever there might be a conflict, the rights of the individual must naturally be sacrificed. What is more, it is not Europe’s role to dictate to us what we ought to do. It is in our traditional cultures themselves, in the standards and values they have bequeathed to us.”[63]

According to Professor Ife, the calls of some of the universalists urging the absorption of the Western model human rights by the Third World, represents a dangerous, dubious and ‘one-directional’ positivist worldview, one that “raises the danger of colonialism”[64] Ife, like other moderate relativists, supports universalism as long as its tenets take into consideration the particular regional characteristics and priorities. Bearing this in mind, he calls for a dialogue where one is prepared to listen to and learn from the other side, instead of assuming that one knows all the answers to controversial questions. By such an approach one could be better equipped to appreciate “what it means to be human and what it is that we value in our own humanity and that of others.”[65]

As stated earlier, there are many Western Universalists that are sympathetic to the concerns of relativists. R.J. Vincent, an ardent defender of universalism, for instance, concedes that the moral and political dilemma which universalism poses are obvious. “After all, “the argument provided by cultural relativism against imperialism appeals not merely because it is an argument against imperialism, but because it seems true. There is a pluralistic of cultures in the world, and these cultures produce their own values. There are no universal values.” [66]

Professor Antonio Cassese also believes that universalism sounds like a ‘myth’ that conceals “underlying disputes and differences” since it is obvious that Socialists, Islamists, Buddhists, Hindus, etc., just like the West, have all differing perceptions of what legitimate rights are.[67] Langlois went a step further in arguing that “as long as human rights is centred around a particular non-universal tradition – Western liberalism (in all its variety) – it cannot be universal: it fails on its own terms.”[68] According to Susan Mendus, “of course, an understanding of human rights as merely manifestations of a particular tradition is entirely at odds with the universalism implicit in the language of rights”.[69] Professor David Kennedy of Harvard University also states that: “The human rights tradition might itself be undermined by its origin … perhaps we should downplay the universal claims, or look for parallel developments in other cultural traditions, etc.”[70]

Likewise, as far as Professor Reichert is concerned: “Applying human rights universally, without deference to specific cultural principles, diminishes a nation’s cultural identity – a human rights violation in itself…. Culture, by necessity, often shapes the way individuals and groups view human rights, and this complicates the idea of human rights as universal.”[71]

The convergence: Both the above extreme positions link the origins of human rights to the West. This is why extreme relativists reject it as ‘alien’ and disruptive of their societies. They rely on their own religious and cultural values to oppose the equal rights of women and men and the different social groups (e.g., when opposing the termination of the cast system). Like extremist universalists, they also question the validity of economic and social rights since their realization could end up disrupting the existing social order. If women are educated and trained for work, then they may not end up spending the rest of their lives as housewives subordinated to their husbands. If the victims of the cast system get education and the freedom to choose the work they prefer, then they could end up taking up work other than the type that they have been compelled to engage in traditionally.

Extreme relativists and universalists have also one other thing in common, i.e., to perpetuate problems which the human rights law seeks to resolve by responding to needs, aspirations, justice and order. Extreme relativists do this by clinging to past traditions, beliefs and by linking politics with religion and culture by refusing change which liberates the oppressed. Extreme universalists agitate for individualism by underlining the importance of defending almost unrestricted freedoms of expression and privacy, often to the extent of fomenting anti-social conducts and undermining dignity and social and religious values and identities. They are insensitive to the collective interests of the marginalized groups and social conflicts because groups do not exist for them. What matters is the interests and morality of the individual, which should override collective morality. When social order is poisoned or disrupted through excessive individualism, extreme universalists have no solutions for the consequences. Their campaign for individualism appeals to the new generation in the South or East, who long to escape from the tentacles of the collective life (requiring the discharge of duties). However, once these youth are dislocated in their country or if they end up migrating to the ‘promised land’ (the West), and become  vulnerable, extreme universalists have no human rights based solutions for their miserable state, since they do not recognize the legitimacy of economic and social rights. Individualism is preached aggressively mostly for disruption.

The regime of human rights and the discourse: critical assessment

The definition of human rights. While UN instruments generally avoid providing clear definitions for politically divisive terms, it is not difficult to see how the UN understands the concept of human rights. From some UN publications and the manner in which the provisions of some of the international instruments are construed one can see the general definitions that have been accepted. For instance, the opining paragraph of the 1993 Vienna Declaration and Programme of Action refers to human rights and fundamental freedoms as “the birthright of all human beings.” In one 1987 UN publication we see this concept defined as “those rights which are inherent in our nature and without which we cannot live as human beings … (which) allows us to fully develop and use our human qualities, our intelligence, our talents and our conscience and to satisfy our spiritual and other needs.”[72] More recently, the Office of the UN High Commissioner for Human Rights, provided the following broad definition:

“Human rights are rights inherent to all human beings, whatever our nationality, place of residence, sex, national or ethnic origin, colour, religion, language, or any other status. … Universal human rights are often expressed and guaranteed by law, in the forms of treaties, customary international law.., general principles and other sources of international law. International human rights law lays down obligations of Governments to act in certain ways or to refrain from certain acts, in order to promote and protect human rights and fundamental freedoms of individuals or groups.” [73]

As will be explained later the reference that is made to “inherent”, “birthrights”, ‘general  principles’ above does not please positivists since they accept rights that are recognized by governments only. Equally important and noteworthy is perhaps not so much what was said, but also what was not said. Does the fact that religion or culture was not mentioned imply that the UN has taken an a position dismissing the view which regards human rights as a religious or cultural talk? What about the fact that human rights are not said to be moral or legal or political ‘claims’ as some writers have argued?

The reasons why the UN did not regard claims and rights as the same are apparent. On the one hand, seeing rights in this manner gives the impression that legal rights are empty words awaiting to be activated through claims, as if claims have a normative character. On the other hand, it also gives the impression that rights are recognized but not framed as claimable before courts (e.g., economic, social and cultural rights) are not legitimate (not real rights but mere aspirations).

Claims obviously strengthen the practicality of rights. However, rights do not necessarily depend on claims. If rights are claims, what happens if they are not claimed? Infants, mentally challenged persons or the terminally ill in the hospitals cannot claim their rights personally. People sometimes fail to claim their rights because of shortage of money or time, because there are no courts in the vicinity, or because they were simply unaware of their rights or of the fact that they had been violated. Black Americans were prevented from exercising their civil rights for nearly two centuries. To argue that they did not have rights during those years because they did not claim them is to approve of the violations of their constitutionally recognized rights on technical grounds.

If claims bring rights, one can very well ask what the point would be in having rights at all. This, in fact, is how some relativists defend rights based on moral, religious or customary requirements.  The fact remains that people approach courts to ask for remedies for the violations of their rights. In states that use the civil law system, courts are not mandated to make or distribute rights based on claims. They are there to interpret and apply existing laws. The body that enacts rights is the legislative branch (the parliament, and in some countries the Executive branch as well). When claims are made before courts, what is at issue is redress or remedies for the rights that are violated or disregarded. The victims are generally are free to exercise their rights their claim for remedies, unless the case involves crimes, which the prosecutor may pursue in the interest of the public. The fact that the victims have chosen not to press claims does not belittle their rights. These rights and the option to claim should not be equated as one and the same.

The view which ties rights to claims actually describes the legal situations in some of the common law countries, such as the United States, whose courts (at least at the level of the Supreme Court) are given wider powers to expand the regime of rights by interpreting the constitutional guarantees. The fact that economic, social and cultural rights are not claimed before courts in many Western countries, like the U.S., is frequently used as an important reason for questioning the validity of these rights.

The international regime of human rights recognizes civil and political rights as well as economic, social and cultural rights as universally valid. Unlike the former, that can be delivered immediately, the latter, as stated in article 2(1) of the covenant on economic, social and cultural rights, are realized progressively by using the “available resources”. Assuring education, health, adequate standard of living and the other benefits to all overnight is unrealistic. To weaken the arguments used by the skeptics of economic and social rights on the basis of the view that such rights cannot be claimed before courts, the UN introduced a protocol to the covenant on economic, social and cultural rights, allowing individuals and states to send petitions to the Committee on Economic, Social and Cultural Rights. The latter, which monitors how the recognized rights are promoted or disregarded, could consider if the formalities set for this process had been complied with. The covenant on civil and political rights also has a similar protocol. In addition, it requires that states which are parties to that instrument provide effective remedies to the violations of rights (article 2.3.b).

The justification used by the UN for promoting human rights universally is the conviction in ‘the dignity and worth of the human person’ which is stated in the preamble of its Charter. This is a clear philosophical statement by a political organization. This is because all the schools of thinking which question the equal dignity and rights of human beings based on race, gender or other consideration are rejected. Aristotle, for example, believed that some people were born free by nature and others as slaves. Rousseau dismissed this idea and claimed that all were born free by nature. Apparently, the UN has taken sides here by rejecting the former and accepting the latter. But this is not the creation of the UN. As the records of the drafting committee states: “That faith has never faded away. … But that faith needed reaffirmation in our Charter, especially after it has been trampled upon in Europe by Nazism and Fascism”[74] The word ‘worth’ was introduced to replace the original suggestion to use ‘value’ because the latter has economic connotations. [75]

The Universal Declaration of Human Rights elaborated this further by recognizing that: “the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace”. This formulation can be interpreted in at least two different ways. On the one side, it can mean that dignity is the basis or source for freedoms, justice and peace. It can also be understood to mean that if rights are denied (whatever their sources is) dignity, peace and justice would be undermined. The relationship between rights and peace is elaborated further in the third preamble of this same declaration, in the following words: “… 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”

What the sources of dignity and worthiness are is not stated clearly. Do they arise from rational thinking (reason) or from beliefs based on religious or cultural values or norms? During the drafting of this declaration suggestions were made by some to make an explicit theological reference by mentioning that we are created in the image of God, but this was not acceptable to others who preferred to use Nature as a source or to leave this matter open.[76] It goes without saying that beliefs that question the dignity and worth of the human being on whatever ground was not be tolerated. Evidently, this political organization has taken a clear philosophical stand against beliefs or ideologies that question the equal worth and dignity of people, on the basis of factors like race, gender, age, and disabilities.

International human rights and the foundations/sources of rights.

Is positivism endorsed? Positivists do not feel that their position has become weakened by the international regime of human rights. The fact that the UN Charter has reaffirmed faith in the dignity and worth of the human being only reflects the shared belief or faith on this matter. Moreover, it merely reaffirmed what states agreed upon and recognized before. Furthermore, this is stated only in the preamble, which is not legally binding as are the operative paragraphs of that legal instrument. The fact that this faith has been echoed in the preambles of the Universal Declaration of Human Rights and the international conventions does not change anything as these preambles are not legally binding and what is stated in them is what the state parties merely agreed upon. In other words, there is nothing to suggest that Natural Law thinking has been crowned.

What is clear is that the recognition of the principle of sovereignty in the Charter protects their right to ratify or not to ratify the human rights instruments. When they do decide to ratify these instruments, they can make reservations to the provisions of the treaty by explaining how the obligations they have assumed are to be understood or interpreted. The only exception to this rule would be instances where the reservation that is made defeats the purposes and objects of the instrument. If one looks closely at some of the reservations which some states have made, one is led to wonder what the whole point was in ratifying the instrument in the first place. There are those who opt not to ratify the instruments and defend their stance by reference to their ideological convictions. For example, the U.S. has not ratified the covenant on economic, social and cultural rights, and China has not ratified the covenant on civil and political rights.

This is by no means to say that states are free to commit serious international crimes, such as genocide, war crimes, crime against humanity, or even to resort to widespread systematic and persistent cycles of human rights abuses. The Charter-based mechanism and the international criminal court can be used to respond to such challenges if abuses do occur. Such violations are deemed to be of essential concern to the international community.

Is Natural Law endorsed? The defenders of Natural Law appreciate the inscription of human rights in the international human rights instruments not least because some of these documents make a clear reference to “the inherent dignity and  the equal and inalienable rights of all members of the human family” confirming the existence of the rights prior to governments. Added to this is the reference that is made to the relevance of ‘general principles’ which is included in the human rights definition provided by the office of the UNHCHR, which is taken from article 38 of the Statute of the international Court of Justice (as one of the sources of international law). However, the fact remains that it is the political actors who are entitled to interpret these ‘inalienable’ and ‘inherent’ rights: This, however, cannot be done through arbitrary methods but “according to due process” [77]

There are also expressions in the international instruments which could be interpreted to strengthen the viewpoint which claims that human rights respond to the requirements for survival. The recognition of the right to life, work, health, to freedom from cruel and inhuman treatment or punishments etc. support this. Furthermore, the third preambular paragraph of the Universal Declaration of Human Rights states that “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”. This suggests that rights are protected out of necessity – because there is no choice but to do that – to avoid rebellion.

Individualization: When the UN turned attention to the preparation of the first universal instrument recognizing the legitimate human rights and freedoms, one of the challenging questions was whether the rights that are legitimate are only those that belong to individuals, thus questioning the validity of collective rights. Should these rights be articulated only as individual rights? The first two articles of the Universal Declaration of Human Rights laid down the ground for this individualized approach to rights by proclaiming that ”All human beings are born free and equal in dignity and rights” (art. 1) and that: “Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.” (art. 2. Emphasis added)

The catalogue of rights that are recognized in this Declaration include the civil, political, economic, social and cultural rights which ‘everyone’ has and the prohibition of exposure to slavery, torture, cruel, inhuman and degrading treatment or punishment etc. This instrument also defends the principle of equal rights and non-discrimination when it comes to the enjoyment of the proclaimed rights, including equality before the law, the equal protection of the law and recognition as a person before the law.

This approach was repeated in more elaborated and legally binding languages when the covenant on civil and political rights, the covenant on economic, social and cultural rights and other conventions were prepared and adopted. For instance, the covenant on economic, social and cultural recognizes the rights of everyone to education, health, work, adequate standard of living and participation in culture. The covenant on civil and political rights acknowledges the rights of everyone to life, liberty, security, privacy, freedom of thought, expression, association, assembly, political participation, effective remedy and protection from slavery, torture, cruel, inhuman and degrading treatment or punishment.

The ‘social’ nature of mankind is not questioned by the international community for obvious reasons. On the contrary, the human rights instruments provided protection to the family, and recognized the existence of duties to the national communities. States have reserved their rights to limit most individual rights in the interest of protecting ‘public’ order, ‘public’ moral or ‘public’ safety. ‘Public’ connotes a social or collective entity. The right of peoples to self-determination, which is recognized in the UN Charter, and later used for purposes of decolonization is an obvious group right. In 1950 the UN General Assembly reaffirmed this right by considering it as human right (res. 421 D (V), on 4 December 1950) and as a pre-requisite for the full enjoyment of human rights (res. 637 (VII) 16 Dec. 1952). This right was finally included into the two international covenants (article 1) on the basis of the instruction given to the drafting Commission by UN General Assembly resolution 545 (VI).

However, this right to self-determination was not meant for smaller groups, such as minorities possessing linguistic, religious or ethnic identities. The minority rights that are recognized in article 27 of the International covenant on Civil and Political Rights, merely states that:

“In those States in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practise their own religion, or to use their own language.”

This twisted and negatively construed provision is evidently shy when it comes to acknowledging that minorities do exist and have their group rights. Instead of affirming their rights explicitly it refers to the rights of their individual members that should not be denied. True, the provision mentions that states should not prevent individuals from expressing their characteristics which can be exercised “in community with the other members of their group”. The Human Rights Committee, which monitors how the states that have ratified this convention, give practical effect to their undertakings, also by making sure that these characteristics are protected. By so doing, this Committee endeavored to strength the weakly formulated minority rights provision used in article 27 of the covenant on civil and political rights. [78]

When the UN was criticized for abandoning minorities, by dragging its feet on the matter of protecting minorities it adopted the 1992 minority declaration. This declaration improved the defective formulation of article 27, by urging states to “protect the existence and the national or ethnic, cultural, religious and linguistic identity of minorities within their respective territories” also by encouraging the “conditions for the promotion of that identity” (art. 1(1)).  While this is important, it still fell short of empowering the subjects by enabling them to create these conditions. In other words, states are still left free to determine if minorities exist by taking “appropriate legislative and other measures” (art. 1(2)), although this should not be done arbitrarily (defying the objective reality). No reference is made to a right to use minority languages in schools, let alone to establish their own schools. There is the expectation that “states should take appropriate measures so that, wherever possible, persons belonging to minorities may have adequate opportunities to learn their mother tongue or to have instruction in their mother tongue.” (art. 4(4)) When it comes to the promotion of participatory rights, what is provided is that states should have “due regard to (their) legitimate interests” when planning and implementing the national policies and programmes (art. 5(1), and to “consider appropriate measures so that persons belonging to minorities may participate fully in the economic progress and development in their country” (art. 4(5)).

By 2007, the UN has adopted separate declaration for indigenous groups – which up until then were mostly treated as minorities and relying on article 27 of the covenant on civil and political rights for protecting their rights. This non-legally binding instrument protected the collective rights of indigenous peoples to self-determination in the form of autonomy or self-government (arts. 3 & 4) and the use and exploitation of their traditional lands, territories and resources (art. 26). They were also allowed to maintain and strengthen their economic, social, cultural and legal systems and institutions (arts. 5, 20 & 34), and to continue determining the priorities and strategies for exercising their rights to development (art. 23). The declaration also acknowledges their rights “to establish and control their educational systems and institutions” (art. 14), to use “their own media in their own languages” (art. 16), to maintain, practice and develop cultural traditions and customs (arts. 11 & 12). The kinds of protection that are extended for them by this declaration includes from forcible eviction from their traditional lands or  territories (art. 10) and from hindrances in using “their traditional medicines … medicinal plants, animals and minerals” (art. 24).

If the UN was forced to take a clear stand in this way by defending the collective interests of indigenous groups, why it is not doing the same when it comes to minorities, when the situation confronting some of them is similar to that of indigenous groups? The ILO appears to be more consistent in this regard since its 1989 convention (no 169) was extended to tribal peoples whose ways of life resemble that of the indigenous. But what about minorities who have neither ‘tribal’ nor ‘indigenous’ characteristics? Is the principle of equal rights and non-discrimination sacrificed here? This discrepancy vindicates the viewpoint which regards international human rights law as a political construct. When it comes to recognizing the self-determination of those that have internationally recognized territories (which were basically used for purposes of decolonization), the UN General Assembly had to instruct the UN Commission on Human Rights in 1950 to insert an article dealing with the right of peoples to self-determination into the covenants (which were being drafted at the time). This was also reaffirmed in the 1960 Declaration on the Granting of Independence to Colonial Countries and Peoples.

Universalism v. relativism. The UN is mandated and obliged to promote “universal respect for, and observance of, human rights and fundamental freedoms”, and the members have pledged “to take joint and separate action in co-operation with the organization.”[79] On the other side, the organization is based on the recognition of the principle of sovereignty which means that states are entitled to protect their national interests. Is it possible for these states to give up these national interests in favor of a uniform human rights policy when these political actors have different ideological, political, economic and other interests including inside other states? Can political traditions based on Natural Law, positivism, religious convictions etc. be harmonized?

The Western ideals and political traditions relating to human rights were inspired by the gains secured from the American and French revolutions. The 1789 French Declaration on the Rights of Man and the Citizens clearly reaffirmed the “natural, inalienable, and sacred rights of man.”[80] Following the occupation of the neighbors of France by Napoleon, the gains of the French revolution were introduced to the occupied countries. The Law of Nature was also invoked in the 1776 American Declaration of Independence as the justification for the independence of the United States and the exercise of the peoples’  “inalienable Rights” including “Life, Liberty and the pursuit of Happiness”, to which “God entitles them”. According to this declaration “whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it”.[81] The members of the Organization of the American States had already adopted their own Declaration on the Rights and Duties of Man, several months before the adoption of the Universal Declaration of Human Rights by giving a stamp of approval to the Western version of human rights, by defending ”the dignity of the individual” and ”the essential rights of man”.[82]

About a year after the UN adopted the Universal Declaration of Human Rights, Western European countries too adopted their own regional convention to strengthen their civil and political rights. One of the grounds for their resolve to do so was their view that they were ”like-minded” states, possessing ”a common heritage of political traditions, ideals, (on) freedom and the rule of law.  They were in a position to take the first steps for the collective enforcement of certain of the rights stated in the Universal Declaration” (the last preamble). The like-minded East European Socialist states too forged their alliance with the Soviet Union by the middle of the 1950s, by establishing, for example, the Warsaw Pact (in response to the formation of NATO). When the UN was debating the human rights agenda these Socialist bloc countries were operating in ways that were harmonious with the Marxist ways of thinking.

In short, although the UN managed to adopt the first  non-binding Universal Declaration of Human Rights in 1948 by ‘pleasing’ both sides, all these states had already positioned themselves in defense of their preferences for shaping what should be universal,  when it was time to prepare the legally binding covenants. The East was glamorizing economic and social rights, and the West had dug in to protect civil and political rights. Both were engaged in rallying the countries of the ‘Third World’ that were emerging from colonialism. Although this East-West description of the politics of human rights encapsulates the basic features of the diplomatic struggle of that time, the reader should be aware of the dangers involved in over-simplifying this complex subject-matter, not least because ideological pretentions or political propaganda are often deceptive, and what is claimed politically may not always be true in the real political world. After all, two of the Four Freedoms which President Roosevelt of the U.S. defended during World War II and which the U.S delegation supported when the Universal Declaration was drafted concerned responding to wants and needs. The U.S. was behind Europeans even when they were struggling to rebuild their destroyed infrastructure at the end of World War II. Again, even if the U.S. was raising the banners of civil and political rights very high during the debates in the UN, it is dishonest to claim that it was respecting them at home before the civil rights movements of the 1960s. The ratification of the covenant on civil and political rights itself had to wait until the USSR had collapsed.[83]

Following the demise of the socialist order in the USSR and Eastern Europe, in 1991, many observers applauded the triumph of the Western political systems and values, fully convinced that this model will now serve as the basis for the universalizing of human rights. However, what was once an East-West political confrontation now took the form of a North-South confrontation or what latter came to be debated as the discourse on ‘universalism and cultural relativism’. This was because the latter states were vigorously defending their traditions and political systems in line with their values.

The African Union (previously the Organization of African Unity) had already adopted its African [Banjul] Charter on Human and Peoples’ Rights in 1981, making it clear that group-rights, economic and social rights and African values would always matter in Africa. This Charter was adopted with a view to protecting “the virtues of their historical tradition and the values of African civilization.”[84] More specifically, it underlined the duties which the individual had “towards his family and society” [85] and “to preserve and strengthen positive African cultural values”. The features of relativism could not have been clearer.

When the Member States of the Organization of the Islamic Conference met in Cairo, in 1990, and adopted their Declaration on Human Rights in Islam they too had made it clear that the rights and freedoms which they recognized would be those that could be harmonized with Islamic Shari’a and the “divine commands, which are contained in the Revealed Books of Allah”[86] The Asiatic governments too had adopted their own Bangkok Declaration[87] defending relativism, shortly thereafter. Although this document recognized the universality, indivisibility and interdependence of economic, social, cultural, civil and political rights, it also stated: “that while human rights are universal in nature, they must be considered in the context of a dynamic and evolving process of international norm-setting, bearing in mind the significance of national and regional particularities and various historical, cultural and religious backgrounds.” [88] This document rejected the promotion of human rights through “the imposition of incompatible values” [89] and regarded intervention on the pretext of human rights as a violation of the principle of national sovereignty and non-interference in internal matters.[90]

However fragmented the political scenario presented above may appear, it did not hinder the UN from devising a formula that would reconcile the deadlocked positions. Thus, when international communities met in Vienna, in 1993, and adopted the Vienna Declaration and Programme of Action, the deadlock between the universalists and relativists was reconciled on the basis of the following formula:

“All human rights are universal, indivisible and interdependent and interrelated. The international community must treat human rights globally in a fair and equal manner, on the same footing, and with the same emphasis. 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. “[91]

This passage raises two interesting points. On the one hand, it appears that the UN had retracted its earlier assumption, mentioned in the 1968 Tehran Proclamation, which stated in operative paragraph 13, that “the full realization of civil and political rights without the enjoyment of economic, social and cultural rights is impossible.” Secondly, if all human rights are universal and interdependent and indispensable for protecting human dignity, then those who reject either civil and political rights or economic, social and cultural appear to be relativists. True universalists recognize both these categories of rights. The rejection of the formula embodied in the above quotation would have left states deadlocked on how to proceed.  One can also view this formula as one that has not broken any new ground, since the paradox of universalism and relativism have always been vivid in the international system. In support of this conclusion the following points could be mentioned.

Universalism was the obvious point of departure for the recognition and development of the international regime of human rights. The UN Charter has affirmed the dignity and worth of the human person and has mandated the organization to promote human rights universally and without discrimination. The manner in which the international instruments have been framed underline the assumption. As the title used for the Universal Declaration of Human Rights suggests, the rights and freedoms that are proclaimed in these instruments are intended to be universal. This was reaffirmed by the UN General Assembly in the 1968 Tehran Declaration when it celebrated the twentieth anniversary of the adoption of the Universal Declaration of Human Rights and on other similar occasions (such as the adoption of the 1993 Vienna Declaration and Programme of Action). Like the provisions of the Universal Declaration on Human Rights, the provisions of the ratified core conventions also acknowledge that ”everyone” is entitled to the rights and freedoms that are recognized therein and the obligations of the ratifying states, include to respect and promote these for “all” under their jurisdiction. Because human rights are universal, they remain of concern to the international community, as it has the mandate to promote them universally – especially when the ratified instruments are disregarded.

Relativism is also firmly anchored in the international system and the human rights instruments. The fact that the whole international system rests on state sovereignty furthers relativism, since states are free to choose the convention they want to ratify or reject. When they choose to ratify, they have the power to make reservations by explaining how their obligations are to be understood.

Respect for “the principle of equal rights and self-determination of peoples” which is recognized in article 1(2) of the UN also supports the relativist stance since it entitles all nations the right to use the individualistic or collectivistic political and cultural system. Paragraph 5 of the 1970 UN Declaration on Friendly Relations among Nations elaborates this principle to mean recognition of the rights of all peoples “to determine, without external interference, their political status and to pursue their economic, social and cultural development”. This right is also restated in article 1(1) of the two international covenants. Article 5 of the 2001 UNESCO Universal Declaration on Cultural Diversity, considers cultural rights “an integral part of human rights (art. 5) Moreover, according to art. 4 of this Declaration: “The defence of cultural diversity is an ethical imperative, inseparable from respect for human dignity. It implies a commitment to human rights and fundamental freedoms, in particular the rights of persons belonging to minorities and those of indigenous peoples.”

The interests of relativists are further served by the fact that the great majority of the recognized human rights and freedoms are framed not only in broad and general ways, but also by recognizing the rights of national authorities to restrict them on grounds, such as, national security and morality. If states are free to do this at the national level, to require some nations to change their political, social and cultural systems to fit the traditions of foreign states will be unjust and a violation of the principles of sovereignty and self-determination.

Conclusion

There is no question that what was once dismissed as ‘the human rights talk’ has now taken center stage as an integral part of the international regime of human rights. This regime is a political construct, one that is shaped by states and inter-governmental organizations. These actors recognize the political nature of human rights and use political tools to promote these rights. The road forward was long and twisted. What was started as broad and generalized standard setting based the Universal Declaration of Human Rights gradually led to the adoption of a long list of legally binding conventions. Needless to say, the fact that human rights are legally recognized now does not mean that they have ceased to be political.

The political nature of human rights is obvious from the fact that they provide the foundation for order and stability. Some of the recognized rights are used for political ends, e.g., the rights to the freedoms of expression, association and voting rights. States also rely on human rights to criticize or undermine other political entities, especially their opponents, even when their own human rights records are not any better. Until the end of the Cold War, the U.S. was perceived as the leader of the civil and political rights movement although it did not even ratify the covenant on civil and political rights prior to 1992. Communist Soviet Union, which was critical to the legitimacy of the individualized ‘rights of man’, ratified the civil and political rights covenant in 1973 to gain political currency.

Because human rights are political, the states that developed the international regime of human rights had  to be careful in navigating between the religious, cultural and ideological currents hindering consensus. The factor that was used to unify the diverse political actors behind a common platform to justify the development of the human rights law was conviction in the dignity and worth of the human being. Where this is derived from was left open. If human beings are worth, life has to be protected, including also by recognizing the rights to the freedoms of expression, association, assembly, religion, movement, and other rights. If dignity and worthiness are to be appreciated, then the rights to health, food, water, shelter, adequate standards of living, education, etc. cannot be questioned. This was why the international regime of human rights had to acknowledge all these rights, and why the international community viewed civil, political, economic, social and cultural rights as interdependent and universally valid. This is a political philosophy which takes a clear stand by dismissing the different schools of thought which rejected or belittled economic, social and cultural rights or civil and political rights or the principle of equal rights. This is not to say that the goals set in 1945 have been achieved. It is merely to acknowledge the gains made by transforming ‘the human rights talk’ to an international emergence of regime that follows its own political philosophy.  There is still the  need of sharpening the language of some of the human rights instruments, since they are infested with vague and general formulations, making them susceptible to ideologically and politically inspired interpretations. If this international regime is to strengthen its legitimacy, it should respond to the needs and interests of all the beneficiaries, also by developing more efficient mechanisms for monitoring the promised rights.

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Vincent R.J. Human Rights and International Relations, Cambridge: University Press, 1986 (1988).

van der Vyver, D. John. “Introduction: Legal Dimension of Religious Human Rights: Constitutional Texts”, in, John D. van der Vyver and John Witte, Jr., eds. Religious Human Rights in Global Perspective: Legal Perspectives (The Hague, Martinus Nijhoff Publishers, 1996).

Wesley.Newcom Hohfeld, Fundamental Legal Conceptions As Applied in Judicial Reasoning, Walter Wheeler Cook, ed. (New Haven: Yale University Press, 1919 {1966}).

Zakaria, Fouad “Human Rights in the Arab World: the Isamic Context”, Philosophical Foundations of Human Rights. (Paris: UNESCO, 1986), ch. 11.

Notes

*Juris Doctor, Associate Professor, School of Global Studies, University of Gothenburg (Sweden). This contribution was submitted to the human rights conference arranged by the Nordic Summer University in Finland on 24 July 2016. The author is grateful to the Orfalea Center for Global and International Studies, University of California Santa Barbara for welcoming him as a visiting scholar to complete the study especially to the Director, Professor Michael Stohl, the Program Director Victor Faessal and to Professor Alison Brysk.

[1] See Declaration on the Elimination of All Forms of Racial Discrimination (res. A/RES/1904 of 20 Nov. 1963), Declaration on the Elimination of Discrimination against Women (res. A/RES/2263(XXII) of 7 Nov. 1967), the Declaration on the Elimination of All Forms of Intolerance and Discrimination Based on Religion or Belief (res. A/RES/36/55 on 25 Nov. 1981), Declaration of the Rights of the Child (res. 1386(XIV) of 20 Nov. 1959), and Declaration on the rights of disabled persons (res. 3447 (XXX) of 9 Dec. 1975).

[2] See the International Convention on the Elimination of All Forms of Racial Discrimination (res. A/RES/2106 A(XX) of 21 Dec. 1965), the International Covenant on Civil and Political Rights (CCPR) (res. A/RES/2200A(XXI) of 16 Dec. 1966), the International Covenant on Economic, Social and Cultural Rights (CESCR) (res. A/RES/2200A(XXI) of 16 Dec. 1966), the Convention on the Rights of the Child (res. A/RES/44/25 of 20 Nov. 1989), and the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (res. A/RES/45/158 of 18 Dec. 1990).

[3] Burton’s Legal Thesaurus, 3rd ed. William C. Burton, ed., (New York: McGraw-Hill, 1980 {1989}); Random House Webster’s College Dictionary, 2nd ed., (New York: Random House, 1991 (1998)).

[4] Burton’s Legal Thesaurus…; Black’s Law Dictionary, 7th ed. Bryan A. Garner, el al, eds., (St Paul: West Group, 1999).

[5] The New International Webster’s Comprehensive Dictionary of the English Language (Florida: Trident Press International Law, 1971 {1999}).

[6] Thomas Hobbes, Leviathan, in Great Books of the Western World, Robert Maynard Hutchins el al, eds., Vol. 23 (Chicago: Encyclopaedia Britannica, Inc., 1952 {1990 prt.}),   pp. 85-8 & 100 – 103 & 116.

[7] I. Kant, The Science of Right” in, Great Books of the Western World, Vol. 42, R. M. Hutchin el al, eds. (Chicago: Encyclopaedia Britinnica, Inc., 1952), p. 435 (Author’s Emphasis).

[8] Ibid., p. 436.

[9] John Locke, “An Essay Concerning the True Original Extent and End of Civil Government”, Great Books of the Western World, Robert Maynard Hutchins el al, Vol. 35, p. 27.

[10] Michael J. Perry, The Idea of Human Rights: Four Inquiries. Oxford: Oxford University Press, 1998), pp. 12-21.

[11] Cairo Declaration on Human Rights in Islam, Aug. 5, 1990, University of Minnesota Human Rights Library, in http://www1.umn.edu/humanrts/instree/cairodeclaration.html

[12] Ayn Rand, The Virtue of Selfishness: A New concept of egoism (New York: The New American Library, 1962{1964}), pp. 124-5.

[13] Ibid., p. 28.

[14] Ibid, pp. 124-5; See also Donnelly, Universal Human Rights in Theory and Practice (Ithaca: Cornell University Press, 1989), p. 214; & R.J. Vincent, Human Rights and International Relations, Cambridge: University Press, 1986 (1988), ch. 1.

[15] Marx, ‘On the Jewish Question’, in K. Marx/F. Engels, The Marx-Engels Reader, 2nd ed., Robert C. Tucker ed., (New York: Princeton University, 1978) pp. 42-43.

[16] Thomas Aquinas, The Summa Theologica, in, Great Books of the Western World, Vol 20, p. 228. See further, John D. van der Vyver, “Introduction: Legal Dimension of Religious Human Rights: Constitutional Texts”, in, John D. van der Vyver and John Witte, Jr., eds. Religious Human Rights in Global Perspective: Legal Perspectives (The Hague, Martinus Nijhoff Publishers, 1996), specially pp. xxx-xxxi.

[17] Hugo Grotius, The Law of War and Peace: De Jure Belli ac Pacis Libri Tres, trans. Francis W. Kelsey (New York: The Liberal Arts Press, 1925), pp. 38-9.

[18] Hobbes, pp. 86-7 & 101.

[18] Locke, pp. 26-30, & 46-47.

[20] Kant, p. 401.

[21] Ibid., p. 405.

[22] Ibid., p., 409.

[23] Anthony Arblaster, The Rise and Decline of Western Liberalism (Now York: Basil Blackwell Inc., 1984), p. 15.

[24] Jack Donnelly, “Human Rights, Individual Rights and Collective Rights”, in Jan Berting, and el al., eds Human Rights in a Pluralist World: Individuals and Collectivities (London: Meckler, 1990), p. 45. According to Donnelly “We do not need a human rights to cultural identity”. Ibid., p. 59.

[25] Rand, p., 126, citing her own work, in Atlas Shrugged. See also R.J. Vincent, Human Rights and International Relations (Cambridge: Cambridge University Press, 1986), pp. 7-9 & 13-14; Jack Donnelly, Universal Human Rights in Theory and Practice, 2nd ed. (Ithaca: Cornell University Press, 2003), pp. 1-2 & 13.

[26] Rand, Ibid, pp. 130-131. See further  pp. 31 and 129

[27] “If the desires, values and development of the individual are socially determined”, wondered Crowley, “then in what way are his ‘choices’ morally significant and sovereign?”. Crowley, p. 57. By rejecting collective rights, added Crowley, those who dismiss the social nature of people actually obstruct the basis for formulating the legal language for resolving the problems faced by the marginalized groups.

[28] T. H. Huxley, Science and Christian Tradition, Prologue, in Mortimer J. Adler & Charles Van Doren, eds., Great Treasury of Western Thought: A Compendium of Important Statements on Man and His Institutions by the Great Thinkers in Western History (London: R. R. Bowker Co., 1977), p. 693.

[29] Crowley, p. 57.

[30] The Works of Jeremy Bentham, (New York: Russell & Russell, Inc., 1962, reproduced from the Bowring editions of 1838-1843, by John Bowring), Vol. III, pp. 218-220. This collection will hereafter be cited as Works… ).

[31] Ibid., Vol. III, p. 221.

[32] Ibid… See further pp. 221 & 219.

[33] Works …, Vol. III, p. 159; and An Introduction to the Principles of Moral and Legislation, pp. 2-4, & 224-225.

[34]  Works, Vol. III, pp. 217-218, 220-1; & Vol. 1 p. 301.

[35] Ibid., Vol. III, p. 159.

[36] Quoted by H. L. A. Hart, in Essays on Bentham: Studies in Jurisprudence and Political Theory, (Oxford: Clarendon Press, 1982), p. 2.

[37] Letter of Marx to Engels, dated 18 Feb. 1865, in Karl Marx & Friedrich Engels, Correspondence: 1846-1895. A Selection with Commentary and Notes (Bristol: Western Printing services, Ltd., 1934?), p. 193.

[38] Perry, pp. 12-21, especially p. 20.

[39] J. Donnelly, The social construction of international human rights, in Tim Dunne and Nicholas J. Wheeler, eds. Human Rights in Global Politics (Cambridge: University Press, 1999) p. 81.

[40] R. J. Vincent, “Introduction” in Vincent ed., Foreign policy and human rights: Issues and responses (Cambridge: Cambridge University Press, 1986), p. 3. The source of human rights, according to Vincent is Natural Law, ibid., pp. 11 & 33.

[41] Alan Gewirth, Human Rights: Essays on Justification and Applications (Chicago: The University of Chicago Press, 1982), pp. 1 & 3.

[42] Statement of Mr. Justice Stayton, in Mellinger v. City of Houston (1887), 68 Tex., 37, 45; 3 S. W., 249, 253, sited by Wesley N. Hohfeld, Fundamental Legal Conceptions As Applied in Judicial Reasoning, Walter Wheeler Cook, ed. (New Haven: Yale University Press, 1919 {1966}), p. 71, note 16.

[43] Joel Feinberg, Rights, Justice, and the Bounds of Liberty: Essays in Social Philosophy (Princeton: Princeton University Press, 1980), p. 151.

[44] Ibid., p. 139.

[45] David Beetham, “Introduction: Human Rights in the Study of Politics”, Political Studies (1995), Vol. XLIII, special issue p. 3.

[46] Michael Freeman, Human Rights: An Interdisciplinary Approach, 2nd ed Cambridge: Polity, 2012, p.11.

[47] Elisabeth Reichert, “Human Rights in the Twenty-first Century: Creating a New Paradigm for Social Work”, in E. Reichert, ed. (2007). Challenges in Human Rights: A Social Work Perspective. New York, University Press p. 5.

[48] Ibid, p. 6.

[49] David P. Forsythe, Human Rights in International Relations, Cambridge, Cambridge University Press, 2012 2nd ed., p. 6.

[50] Sir Stephen Sedley, “Human Rights: A 21st Century Agenda”,  in  Robert Blackburn and James J. Busuttil, eds.,  Human Rights for the 21st Century. London: Printer, 1997, p. 1.

[51] Forsythe, p. 40.

[52] Donnelly, The social construction of international human rights, p. 82.

[53] Freeman, Human Rights…, p. 11

[54] Donnelly, Universal Human Rights p. 87.

[54] Forsythe, p. 40.

[56] Donnelly, The social construction of international human rights, p. 80.

[57] Rhoda Howard, Rhoda Howard, “Is there an African concept of human rights?”, in R. J. Vincent, ed., Foreign Policy and Human Rights: Issues and responses, p. 25.

[58] Ibid., p. 24.

[59] Michael Freeman, “Universal Rights and Particular Cultures”, Michael Jacobsen and Ole Bruun, eds., Human Rights and Asian Values: Contesting National Identities and Cultural Representations in Asia (Richmond: Curzon Press, 2000), p. 49.

[60]. Donnelly, Universal human rights p., 119.

[61] Jim Ife, “Cultural Relativism and Community Activism”, in E. Reichert, ed., Challenges in Human Rights, p. 79.

[62] Paulin J. Hountondji, “The master’s voice – remarks on the problem of human rights in Africa”, in Philosophical foundations of human rights, (Paris: UNESCO, 1986), p, 326.

[63] Ibid., p. 328.

[64] Ife, pp. 77-78. Obrad Savić also took this as an example of Western hegemonism. Obrad Savić, Introduction: The Global and Local in Human Rights: The Case of the Federal Republic of Yugoslavia”, in Savić, ed., The Politics of Human Rights, Verso, 1999, p. 7.

[65] Ibid., p. 88. See further Mohammed Allal Sinaceur, “Islamic tradition and human rights”, in Philosophical Foundations of Human Rights, p. 199; Fouad Zakaria, “Human Rights in the Arab World: the Islamic Context”, ibid., pp. 227-228; & Ryosuke Inagaki, “Some Aspects of Human Rights in Japan”, in ibid., p. 187.

[66] R. J. Vincent, Human Rights and International Relations, p. 38.

[67] Antonio Cassese, Cassese, “Are Human Rights Truly Universal?”, in Savic (ed.), The Politics of Human Rights, p. 161 & pp. 162-164.

[68] Anthony J. Langois, The Politics of Justice and Human Rights: Southeast Asia and Universalist Theory (Cambridge: Cambridge University Press, 2001); p. 7.

[69] Susan Mendus, “Human Rights in Political Theory”, Political Studies Vol XLIII (1995), Special Issue, Politics and Human Rights p. 13.

[70] David Kennedy, “The International Human Rights Movement: Part of the Problem?, (2000), E.H.L.R., Issue no.3, p. 257.

[71] Reichert, Human Rights in the Twenty-first Century, p. 9.

[72] Cited in UN Center for Human Rights, Human Rights and Social Work: A Manuel for Schools of Social Work and the Social Work Profession – Professional Training Series, no 1, 1994 (HR/P/PT/1).

[73] UNHCHR, ”What are Human Rights?” http://www.ohchr.org/EN/Issues/Pages/WhatareHumanRights.aspx

[74] Report of Rapporteur of Committee I/1 to Commission I, Doc 944, June 13, 1945, The United Nations Conference on International Organization, Selected Documents, U.S. State Department, 1946 reproduced in https://babel.hathitrust.org/cgi/pt?id=mdp.39015030752813;view=1up;seq=504, p. 493.

[75]  Ibid., pp. 490-3.

[76]  Tore Lindholm, “Article 1” in Asbjorn Eide, Gudmundur Alfredsson, Goran Melander, ,Lars Adam Rehof and Allen Rosas eds. The Universal Declaration of Human Rights: A Commentary. Oslo: Scandinavian University Press, 1992, pp. 31-55, especially pp. 42-48.

[77] UNHCHR, ”What are Human Rights?” http://www.ohchr.org/EN/Issues/Pages/WhatareHumanRights.aspx.

[78] General Comment 23, Art. 27, para.. 6.1, in U.N. Doc. HRI/GEN/1/Rev.1 at 38 (1994).

[79] Arts. 55 and 56 respectively. Emphasis added.

[80] See the History Guide, Declaration of the Rights of Man and the Citizen, August 1789.  in http://www.historyguide.org/intellect/declaration.html

[81] See The Declaration on Independence: A Transcription, The Charters of Freedom, in http://www.archives.gov/exhibits/charters/declaration_transcript.html.

[82] https://www.cidh.oas.org/Basicos/English/Basic2.American%20Declaration.htm Emphasis added.

[83]  This is why one should not confuse human rights ideals with actual behavior. Indeed if the defense for civil and political rights was in line with the ideological orientation and national traditions of the American States as it is often claimed, one may wonder why the members of the Organization of the American states had to wait until late in 1978 to ratify the American Convention on Human Rights. The West European countries did manifest their loyalty for the defense of civil and political rights by adopting the 1950 European Convention on Human Rights. However, a decade later they also adopted the Social Charter recognizing economic and social rights, in haphazard ways. Most of the states that ratified this instrument were also parties to the ILO conventions protecting economic rights. These Western states also gradually ratified the covenant on economic, social and cultural rights blurring the East-West divide relating to the kinds of rights that should have been recognized. The fact that the defectively formulated Social Charter was revised several times and that the European Union too adopted its own Charter on Fundamental Rights also shows further that economic and social rights are not as alien to the West as it is often claimed.

[84] See preambular paragraphs 7 and 4 respectively, in OAU Doc. CAB/LEG/67/3 rev. 5, 21 I.L.M. 58 (1982).

[85] Arts. 27(I) & 29(1).

[86] Cairo Declaration on Human Rights in Islam, Aug. 5, 1990, University of Minnesota Human Rights Library, in http://www1.umn.edu/humanrts/instree/cairodeclaration.html

[87] Final Declaration of the Regional Meeting for Asia of the World Conference on Human Rights, in http://www://google.com. This instrument was adopted by the representatives of Asian States, at the end of their meeting (from 29 March to 2 April 1993), in Bangkok, in the context of preparations for the World Conference on Human rights.

[88] Ibid., 8th operative para.

[89] Ibid, preambular para. 10, & operative para. 3.

[90] Ibid, preambular para. 8, & operative para. 5.

[91] Part I, operative paragraph 5 of the Programme of Action. Operative paragraph 10 also states that “While development facilitates the enjoyment of all human rights, the lack of development may not be invoked to justify the abridgement of internationally recognized human rights.”