Introduction

“Human right “is a vast term encompassing all those rights that human beings are entitled to enjoy just because they are ‘human beings’ (Freeman, 2011). These rights are also referred to as natural rights or legal rights.

The idea of human rights was culminated after the Second World War. The holocaust done that time resulted in the adoption of the Universal Declaration of Human Rights in 1948 by the United Nations General Assembly. Broadly speaking, these rights can be categorized into (B.G.Ramchandran, 1979):

• Civil and Political Rights
• Economic Rights
• Social and Cultural Rights

Since their adoption till now, these rights have undergone the sea-change with changing times plus changing socio-political, cultural, economic and religious conditions. There have been issues of utter violation of these rights in many parts of the world. Not only that, human rights have been disputed time to time. Many philosophers including Marx, Bentham , Burke have criticized these rights as being ‘abstract’ (B.G.Ramchandran, 1979). The Encyclopedia of Philosophy criticizes these on two grounds (Routledge, 2000):

• Lack of Universality
• Lack of Objective grounds

Thus, not only the practical implementation; even the theoretical aspect is in question. This essay deals with these issues and attempts to throw light on the following statement:

“Human rights are contested both theoretically and practically.”

This statement will be discussed up on citing relevant examples and citations wherever necessary.  Different aspects including religion, culture, feminism, individualism will be referred to in detail to come to the conclusion.

Finally, conclusion will be done based on the discussions made and the author’s own perception. Hope this essay will provide a holistic view to readers about human rights and related disputes.

 Human Rights: ‘Contested’ Theoretical Aspect

The dilemma with these rights is that they are widely used but hardly understood. As stated, many thinkers and philosophers have defined and elaborated these rights in their own way. These rights propagate singular and universal human identity in a politically fragmented world- and this is the central tension with these rights.

In 1789, the French declaration stated, “men are born free and equal and it’s the aim of every political association to preserve the rights of man.”

However, the American declaration in 1976 claims that:

“All men are created equal and endowed by the creator certain inalienable rights. To secure these rights, Governments are instituted among Men deriving their just powers from the consent of the governed (B.G.Ramchandran, 1979).”

The message from these declarations is clear:  rights are universal and inalienable but limitations are still there in the form of democratically-elected institutions.

Can you see the paradox? Anybody can. How the rights can be universal and limited at the same time? This paradox was also anticipated by the philosopher (Jean-Jacques Rousseau), who claimed:

“Man was born free, and everywhere he is in chains.”

Given these paradoxes, many philosophers have sharply criticized these rights. Bentham attacks by terming these as “nonsense” because these are neither enforceable nor observable. He says that these are far beyond reality and remain as ‘abstract’ entities only.

On the same lines, Burkley has also rejected these rights saying that politics is more about contingent events rather than abstract ideas.

Citing the practical critique of these rights, Karl Marx stated that the persecution of the Jews in Germany shows that how effective these rights are. In true sense, rights given to man other than rights of citizens are nothing but only “bourgeois rights”, they exhibit narrow interest and separates man from the community.

Thus, these approaches clearly show that the very definition and declarations of human rights were put in dispute by renowned thinkers and philosophers of that time.

Now, some issues related to individualism and feminism will be discussed in a bit detail. Let’s have a look.

Individualism

Many authors have argued that ‘individualism’ is one of the primary focuses of human rights. This concept, ‘individualism’, has a colossal impact on human rights and drives them towards cultural identities.  It broadly refers to the ‘struggle for recognition’ leading to renewed importance of cultures across the globe (Donnelly, 2003).

As there are many cultures in the world and there is a struggle for recognition also, the contradiction exists in the very concept itself leading to the recognition of cultural identities and individual’s rights.

French anthropologist Louis Dumont presents a comparatively broader definition and includes “culture crisis” in that. The “struggle for recognition” is a social concept where individual wants his own identity and recognition in society. Though it may seem simpler, recognition and identity clash may prove fatal for a person (Gearon, 2002).

In Philosophy, many thinkers have discussed about identity and recognition issue. There is an interesting story regarding this.

“There were eminent persons discussing serious philosophical questions in a room. Suddenly, somebody came in an uttered “there is an earthquake”. Everybody, abruptly halting the discussion, started rushing for the survival.”

What does this small example depicts? Obviously the importance of identity. Identity and one’s survival comes first.

Now, after this much discussion on individualism, you may be wondering what individualism is there in human rights and how these terms are related to each other.

Actually human rights can’t be elaborated without cultural context. It is because of the fact that these rights are enjoyed by human beings and humans can’t be studied irrespective of society, culture, psychology and other such aspects.

It is because of this association of human rights with culture, many thinkers have termed them “impure”. However, individualism is not only limited to culture only. For many societies of the world, it has extended to include external economic, political and social shocks. Not only that, it has become an independent and autonomous trend including religious as well as secular origins.

Hindu traditional civilization acknowledges the ‘individual’ to be a part of sacred order. Islam, saying “man is directly related to God” is not alien to individualism. It only gives more important role to the community and doesn’t allow the individual to assert him or herself.

The discussion till now makes clear the contradiction between these two concepts: Human rights and individualism. It is criticized that if human rights are justified individualistically, how can these be universal?  There are many thinkers who justify human rights as being individualistic (Gearon, 2002).

Raz says in his book The Morality of Freedom that these rights are enjoyed by particular persons and justify their interests. Hart and Griffin say that these rights are justified on the basis of an individual’s freedom. As stated by Lomsky and Sanders,

“A person justifiably has a right if and only if this right protects the person’s chosen projects.”

There are lots more theories showing that the concept of human rights is individually oriented. Hence comes the dilemma:

How can these be universal if they are individualistically oriented? However, these are consequentialists holding the other approach that these rights serve collective interests and not individual interests. On the same lines communitarians also hold the similar approach and say that these rights are particular to a group, not to an individual (Darren, 2003).

Amidst these contradictory views, many philosophers reject an absolute individualistic or non-individualistic approach. As per Rawls and Dworkin, the non-individualistic approach gives rise to fundamental rights.  However, the claim of Rawls and Dworkin that all these rights are individualistically justified is not absolutely admissible. There should be a space for other schools also: communitarian and consequentialist.

Thus, we can adopt a two-tier approach:

• human rights are justified individualistically
• other morally justified rights are non-individualistically justified

Individual approach means that for different people, different rights would be there. This implies the non-universality of human rights.

The conclusion till now has following propositions:

• There is a strong approach that human rights are universal and held equally by all persons.
• There are theories saying these rights to be justifies individualistically. It means that there is no common set of rights being enjoyed equally by all persons. Rights are different for different persons.

What we should adopt? Should we break the link between individualism and human rights? Should the link between universalism and human rights be broken?

This is an unending debate that may require further research to clear the confusions. Presently, it can be said that human rights are both: universal and in a sense individualistic also. However, there are many theories undermining the universalism in human rights and claiming different set of rights for different people as per their different requirements (Gearon, 2002).

Summing up, these theories are based on different perceptions of thinkers. In the present situation, there does exist the contradiction. Hope it will get more cleared in the years to come.

Feminism

Feminism is one of the major topics of discussion these days. Not surprisingly, there is a proliferation in writing about women issues including women and human rights in international context. Many renowned writers are a bit skeptical and dissatisfied about the performance of human rights in relation to women issues. Major criticisms were (Peters and Wolper, 1994):

• Violations on  women’s dignity were ignored by “mainstream human rights”
• Institutions dealing with women rights were not at par with the organs of “real human rights”

These issues and criticisms increase the need to have strong institutions dealing with women issues and greater attention towards violation of rights.

In last couple of years, this concern has become more prominent.” Women rights are human rights” has become a slogan (Peters and Wolper, 1994). So, there are several charges laid on mainstream human rights by feminist critics. Sharper ones argue that these rights are nothing but “plain rhetoric” and women are ignored in all parts of the world. However, the moderate critics demand more awareness regarding women in these rights.

We have cited many examples of Sudan, refugees in Africa and Guantanamo bay. In refugee camps, women were behaved badly and tortured sexually. On the same lines, sexual abuse of women detainees and prisoners should be uncovered to address with more concern and promptness. This is the fact that women tend to cover these topics especially with male interviewer and human rights are also not very keen to address these.

However, it is important to assess the accuracy of the charges leveled against mainstream human rights. The term “violation of women rights”   as used by critics refers to the attack on women dignity and may include violations falling under civil and political rights. Main types of women rights violations as used by critics are (Tripp, 2006):

• Dowry deaths
• Domestic violence
• Prostitution and human trafficking
• Denial of reproductive rights
• Discrimination against women refugees
• Denial of inheritance and property rights
• Denial of access to land and economic opportunities

Thus, the critics clearly present the need of more prominent recognition of gender-specific rights under” mainstream human rights”. This recognition to gender specific issues has taken the center stage in last two decades or so. It outlines the need for rethinking of human rights. There are greater demands of inclusion of women rights under “human rights”.

Amidst this backdrop, here crop up some questions. Is it possible to just include women rights under these universal rights without changing the basic concept and institutions dealing with such issues? Many of the violations that have been referred to by the critics have been addressed by other norms and regulations in many parts of the world. For instance, in India and many western countries there is a domestic violence act that protects women against atrocities committed by family members.

Similar is the case with dowry deaths and other issues relating to inheritance and women rights. Many countries have passed legislations addressing these issues of women and have granted them status at par with their male counterparts.

Then why is this hustle regarding inclusion of women rights in human rights? Are these arguments pervasive?  All these issues will be taken up in the last section of this essay.

Political Disputes in Human Rights

As discussed, the very definition of human rights and related declarations are paradoxical; same is the case with political approach. There have been many instances of disputes at political level with many countries facing serious human rights violations and other related issues.

Though the international politics has recognized these rights in 1948 with the acceptance of Universal, many people face violations because of political reasons (Brems, 2001).  For instance,

Sudan experienced extreme cases of human rights violations in Darfur. It was the handiwork of collaboration between the administration and a militia called, Janjaweed. Though the happenings that time fetched newspaper headlines and concerns all over, the international watchdog failed to stop the atrocities as China vetoed the bill and denied to take action against the genocide. The way China behaved that time had political reasons. As Sudan is an oil-rich country, China preferred to fulfill selfish motives instead of taking action against the unwelcome events.

Similar happened in Guantanamo, the place that is alleged to house terrorists. In this bay, many people have been held as terrorists just because the U.S. government suspects so. They are badly tortured and even lose their life. As U.S. shows itself to be a big advocate of human rights; these actions are indeed questionable.

In many African refugee camps, the Government restricts the movement off refugees as it feels that they will take away employment from the local people, if allowed to move freely.

Thus, politics play an important role in violation of human rights across the globe. These cases are particularly witnessed in the Gulf, Africa especially Sudan and South America.

Though these rights are universal, their implementation is subject to various political conditions. What has been discussed till now was the overview that how political relations affect these rights and how these rights are contested politically.

Now, more discussion will be done on religious challenges and International Criminal Court.

Religious Challenges

As per the definition of human rights, these should be protected without considering caste, creed, race, sex, religion and other such similar aspects. But in practice, there are numerous examples when human rights of people have been infringed because of these issues. Usually, the discrimination and infringement is on the basis of gender and religion.

In the previous section, the violation of women rights was discussed in detail. This section will take up the issue of religious challenges by citing relevant examples.

Before moving on, it is imperative to cite an important question in this regard:

Should religious beliefs be given importance over human dignity? Theory obviously says no but here is the difference in practical implementation of theoretical aspects.

This is the acute problem and holds good for almost all religions including Judaism, Christianity, and Islam (Gearon, 2002).

Article 18 of Universal Declaration of Human Rights states that “Everyone has the right to freedom of thought, conscience and religion (Darren, 2003).” But in many parts of the world, there are wars because a specific section wants to propagate and maintain the supremacy of its religion. The disrespect towards others religious beliefs has culminated into many wars in the past also.

The Shia-Sunni divide in Iran and neighboring countries is well known. Iranian authorities have misused the religion to unleash human rights abuses. Ordinary people were covered under arbitrary limits. There have been regimes in the country placing restriction on freedom of religion (Gearon, 2002). The unparalleled powers of Vali – e-faquih have affected Iranians in cultural, religious, social and even the political aspect. None has been given the rights in true sense of “freedom of religion”.

The case is a bit different with South Africa, the country having numerous religious divides. Though the State has tried well to maintain the balance between internal conditions and other constitutional obligations; infringement if rights still persists there. Presently, there are around 11 religions existing in the country (Witte and Green, 2011).Majority of the population claims to be Christian. Till 1996, the approach of Government was also Christian-based with major decisions used to be taken keeping religious aspects in mind. However, the situation is changes now to an extent. Religious aspects are less flaunted in political decisions but the legal system of the country has been developed in a “Christian framework”.

The Government needs to balance the obligations: protecting the rights of minority and majority groups plus taking decisions on the lines provided by the constitution. Religious pluralism is an attribute of the country and it should be made a strength rather a weakness.

Iran and South Africa are not the exceptions. There are other parts of the world facing human rights issues on the basis of religion. Religious freedom is not given in its true sense. If it is given constitutionally, there are hurdles in practical implementation because of narrow ideologies possessed by a section of people. We can well take the example of a secular State, India here. Though constitution grants equal rights and forbids discrimination on the basis of religion; the country witness religious crimes and violence time to time (Gearon, 2002).

Thus, human rights face many religious challenges in the form of:

• Narrow ideologies of people
• Disrespect towards other religions
• Religious fundamentalism
• Religious violence and infringement of human rights thereof

These negativities can be countered with proper education if the masses and by making a balance between religion and other issues. State should neither propagate nor discourage any religion. Media can also play a positive role by adapting to secularism in what it publishes.

Summing up, religion is a big player and inversely related to human rights. It means if religion comes at the front stage, human rights will be relegated to the back and vice versa. There is a trade-off between these and it depends on the administration of any country how it maintains the balance between the both.

International Criminal Court

The discussion till now makes it clear that the issue of human rights has become a major topic these days. On the one hand, there has been an immense codification of these rights after the Second World War (Schabas, 2011); on the other hand the world has witnessed extreme cases of violation amidst the backdrop of different political, social and religious issues.

These rights have evolved tremendously under the aegis of United Nations. As there is relatively less cultural aspect prevailing, the notion of human rights is becoming more universalized and the matter of violations are not restricted to just the domestic jurisdiction.

This is the reason that human rights concerns in Sudan, Gulf countries and other regions had raised eyebrows all across. The issue is now a global one and establishment of ICC (International Criminal Court) is considered a major breakthrough in that.

With increased globalization, it was necessary and imperative to set some standards with regards to global justice and the court solves this purpose.

These rights are not just “abstract principles” as termed by some thinkers. This is the reason that this neutral institution, free from social, political, religious and other such pressures, has been established to enforce these rights in a transparent and fair manner.

The council of European Union has stated:

‘The International Criminal Court, for the purpose of preventing and curbing the commission of the serious crimes falling within its jurisdiction, is an essential means of promoting respect for international humanitarian law and human rights, thus contributing to freedom, security, justice and rule of law as well as contributing for the preservation of peace and the strengthening of international security, in accordance with the purpose and principles of the Charter of the United Nations (Donnelly, 2003).’

This statement clearly exhibits the functions and purpose of ICC. During the Second World War, human rights violations were at its peak. It stunned the community across the globe and led to the establishment of an international tribunal. However, this institution was not permanent.

Again in 1948, an effort was made when UN signed the genocide convention. As per the convention, criminals were supposed to be tried by an international tribunal. It raised discussions regarding the establishment of a global mechanism but this idea was again relegated to the back stage amidst power politics (Schabas, 2011).

In June 1989, Trinidad and Tobago proposed the establishment of ICC (International Court of Tribunal) to curb drug trafficking. In early 1990s, there were numerous instances of genocide and crime against humanity. In response, UNSC established two ad-hoc tribunals but these tribunals proved less effective and slow in curbing the atrocities.

Then, finally in 1994, a draft of ICC was presented. After thorough discussions, ICC was established in 1998 during ‘Rome Conference’ and the court became functional in 2002.

However, there are some limitations to ICC also that have raised questions on its functioning. The jurisdiction is limited to only “crimes of grave nature”.

Secondly, it can take up an issue only when the State fails or doesn’t will to take required steps in the present situation.

Thirdly, only those countries that have ratified “Rome statute” come under its jurisdiction. There are many countries that have only signed the Rome convention but not ratified it. These States are out of ICC’s purview (Schabas, 2011).

Last but not the least, the court has jurisdiction to following crimes:

• Genocide
• Crime against humanity
• Crime of aggression and
• War crimes

Thus, things are quite clear in ICC’s stature and this institution works in an orderly manner. Its impartiality, transparency, and fairness are some key strength. The accused have rights to speedy trials and to defend themselves.

As it is necessary to maintain the integrity of these types of institutions, an agreement was signed in 2002 only to grant some immunity to its officials. This works as a judicial office and away from any political interference.

Summing up, it can be said that the there was the dire need of an international system to enforce human rights and establishment of ICC is a right step in the right direction. There is a saying, “threat for justice in one place is a threat for justice everywhere”. So, it is necessary to counter these threats effectively so as to secure human beings mentally and physically.

Now, ICC is the reality and an exciting development for the world. As we have seen, it has been established after many ideas and thorough discussion on part of the international community.  However, there are certain limitations like its limited jurisdiction. It’s still to be ratified by many nations. States should be encouraged to ratify it as soon as possible. Ratification of ICC by India, China, US and Japan is very important for its success and future. But, the skepticism US is showing towards this institution is a matter of worry.

International community should work harder to convince the States about the need of ICC. The more the support, more will be the effectiveness of this institution. Though it’s making a slow progress, the establishment of ICC is a real breakthrough in the arena of human rights.

Conclusion

This essay is a detailed discussion on human rights and took up different aspects. The major question of this topic was

“Are human rights contested theoretically and politically? Do these contests pervasive? Why or why not.”

This question has been dealt with keeping important aspects in mind including:

• feminism
• individualism
• religious challenges

At the outset, the definition of human rights is contested and it is clear from the different views presented by different philosophers. The declarations, definitions, and different philosophies lead to the paradox: How can human rights be universal and limited at the same time.

Many philosophers have termed these rights just as abstract entities but I strongly counter this point. As these were only the abstract entities, what was the need to create an international institution to enforce these rights? The establishment of ICC well counters the argument that these rights are only “abstract”.

Theoretically saying, there are many more disputes exist in the idea of human rights. As has been discussed, feminist critics have disputed these rights for not being aware to women. They say that these don’t include women rights and as such women issues are ignored and not taken of properly.

No doubt, they are right but inclusion of women rights in human rights is may not be feasible at this time. Many countries have come up with separate women rights and the inclusion of women rights in human rights requires change in the existing structure, institutional bodies and the declarations itself.

The idea of individualism and human rights also seems to be incompatible. Critics say that individualism is the focus of human rights and if take this statement true, how will we justify the universality of these rights. Universalism and individualism are opposite concepts and can’t be justified simultaneously.

However, there are different views regarding individualism and thinkers say that absolute individualism can’t be agreed up on. Still, human rights have shown to be individualistically justified to some extent which crops up the dispute and controversies.

Thus, the major disputes regarding human rights lie in the heart of following statements:

• Human rights are universal
• Human rights are individualistically oriented
• Human rights vs. Feminism/women’s rights
• Human rights and religion

Politically speaking, human rights have been violated many times because of political orientation among nations.

Thus, it can be said that human rights are definitely contested politically as well as theoretically. There are different views, different and contradictory ideas that have made the matter quite complex.

However, all disputes are not pervasive. The allegation of being them “abstract” is quite wrong because there is an international body to enforce these rights. Moreover, the challenges they face on the basis of religion are also uncompromising. It is clear in the charter itself that these rights are enjoyable by people because they are ‘human beings’ and hence, these rights are not guide by class, color, politics, race, creed, religion or any other such narrow ideology.

Summing up, ‘human rights’ is a vast topic and has been discussed many times from different perceptions. These disputes and contests are because of the different perception of people. We can say that further research in the matter will clarify the things in a better way!

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