1.

Examine the significance and contents of preamble to the Indian Constitution

The Preamble to the Indian Constitution is an introductory statement that outlines the
Constitution's principles, objectives, and ideals. It's considered the "Identity Card of the
Constitution" and is based on Jawaharlal Nehru's "Objectives Resolution", which was adopted
by the Constituent Assembly on November 26, 1949. The Preamble came into force on
January 26, 1950, which is celebrated as Republic Day of India

The preamble declares India a sovereign, socialist, secular, and democratic republic. The
objectives of the Preamble are to secure justice, liberty, and equality for all citizens and
promote fraternity to maintain the unity and integrity of the nation.

The ‘Preamble’ of the Constitution of India is a brief introductory statement that sets out the
guiding purpose and principles of the document, and it indicates the source from which the
document which derives its authority, meaning, the people.

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Importance of the preamble:

 It lays down the main objectives which the legislation intends to achieve.
 It contains ideals that the Constitution seeks to achieve.
 It gives direction and purpose to the Constitution.
 It also enshrines the grand objectives and socio-economic goals which are to be
achieved through constitutional processes.
Further Reading:

 Preamble of the Indian Constitution

 Preamble Decoded
The ‘Preamble’ of the Constitution of India is a brief introductory statement that sets out the
guiding purpose and principles of the document, and it indicates the source from which the
document which derives its authority, meaning, the people. It was adopted on 26 November
1949 by the Constituent Assembly of India and came into effect on 26th January 1950.

As a part of the Indian Polity of IAS Exam, it makes an important section. Hence, this article
will talk about Preamble to the Constitution and provide you with the preamble of the Indian
constitution notes PDF. You can also read about the Objective Resolution which is, in the
modified version, reflected in the Preamble of India.

Preamble of India – Objective Resolution

18,543
In 1946, Objective Resolution was moved by Jawaharlal Nehru, describing the constitutional
structure. In 1947 (22nd January) it was adopted. It shaped the Constitution of India and its
modified version is reflected in the Preamble of the Indian Constitution. The basic tenets that
the objective resolution highlighted were:

 Constituent Assembly’s resolve to see India as independent, sovereign and republic

 To draw a Constitution for India
 To make all territories of pre-independent India into united states of post-independent
India
 To realize residual powers, autonomy on such states as the Constitution of India reflects
 To realize a union with a power which will be different from those given to such states
 The people of India to play the source of power and authority of the sovereignty, and
independence
 To provide justice, social, economic and political equality of status of opportunity
and, freedom of thought,
expression, belief, faith, worship, vocation, association and action, subject to law and
public
morality before the law
 To provide adequate safeguards to the minorities, tribal and backward areas and other
depressed and backward classes
 To maintain the integrity of the Indian Republic’s territory and its territorial rights on land,
sea, and air according to the justice and law of the civilized nation
 To promote peace and welfare among the worldly nations.
The topic, ‘Preamble of India’ is an important one for Indian Polity subject. Questions can be
asked from it in both prelims and mains. To see what kind of questions have been asked
before, you can check the Polity questions of UPSC Mains GS 2.

Significance of Preamble in the

Indian Constitution
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The Indian constitution came into effect on the 26th of January 1950 – which is celebrated as
Republic Day. The constitution is the ultimate or supreme law of the land-Indian nation. In
other words, all legislations and interpretations of the law must align with the constitution – in
letter and spirit. The preamble to the constitution sets the overarching guiding principles for the
various statutes, provisions, and the relevant underlying articles and sub-sections. The
significance of the Preamble is determined by its elements. Therefore, the preamble
represents the people from whom it gets the power and authority. The constitution states that
India adopts a Parliament form of the governance system. It stipulates that the executive,
judiciary, and legislature are distinct pillars of democracy, functioning with independence. The
 Indian polity comprises and deals with the government’s governance system, administration,
and jurisdiction.

The Preamble:

The preamble sets the tone for interpreting the constitution and its implementation in letter and
spirit. The Preamble to the constitution

 declares India to be a sovereign, socialist, secular, and democratic republic

 assures citizens of justice, equality, and liberty
 and seeks to promote fraternity among the people/citizens

The Significance of the Preamble

The preamble is regarded as the spirit and spine of the Indian constitution. The preamble
provides a concise overview of the Indian constitution. The significance of the Preamble can
be seen in the following ways:

a) Prelude or introduction to the constitutional laws: The preamble provides an

introduction to the constitution, setting a framework for the foundational principles.
b) Meaning of the Preamble: The primary aim of the preamble is to clarify the definition of
certain fundamental terms and philosophy and lay out the specific details that must be
defined.
A preamble can also be used to restrict the meaning or interpretation of a particular phrase,
describe details, or further add definitions.

c) Scope of the preamble: The key purpose of the preamble is to explain the concept or
principles behind the constitutional laws. Besides, the preamble outlines the core values that
define the constitution and the aims & obje
ctives of the constitution.
d) Declaration: The Preamble does not accord authority but provides the foundational basis
for the constitution.
 It declares India a sovereign, socialist, secular, and democratic republic.
 Citizens are entitled to Justice, Equality, and Liberty
 Intent to promote a sense of fraternity (or sense of community/brotherhood) among the citizens

Contents of the Preamble:

The preamble’s contents have high significance.

 We the People of India – This expression establishes that the sovereign authority is the
people from whom the constitution derives its authority. It shows citizens have granted their
powers and authority to the government.
 Sovereign meaning in the preamble – Sovereign refers to supreme and complete authority.
Citizens have sovereign control, and they delegate it to the elected representatives.
 Socialist – the term denotes a political-economic structure or belief. The word Socialist was
included in the preamble to offer equality of opportunities, provide decent lives for the people,
and a brief to the Framers of the constitution, to write/draft the constitution from a socialist
perspective.
 Secular – Inserted in 1976 through a constitutional amendment, the term secular indicates that
India doesn’t have a state religion; Citizens have the right to follow and practice their faith.
 Democratic – Taken from a Greek word, it means “citizens” and “authority”. Democracy refers
to the rule by citizens.
 Republic – The concept of a republic refers to the citizens of the country wielding absolute
authority.
 Justice – the goal of justice is to protect citizens’ social, democratic, and economic interests
and provide them with opportunities and a decent standard of living.
 Liberty – The word liberty was included to ensure people’s independence of conscience,
speech, and religion. Giving citizens freedom for personal development is crucial and prevents
the government from interfering with their liberty.
 Equality – The principle of equality helps ensure that every citizen is treated equally, and the
state would strive to ensure that everybody is treated equally under the law.
 Fraternity -Fraternity refers to brotherhood. This term was added to make the citizens feel that
they were all on the same pedestal and to promote unity. This was pertinent for a diverse
nation like India regarding faith, ethnicity, and caste.

History

The original preamble was written and proposed to the constituent assembly with the words;
sovereign, democratic, and republic. The terms socialist and secular were added in 1976
through a constitutional amendment.

Constitution and Indian Polity

The Indian constitution stipulates a Parliament form of the governance system. The head of
the government is different from the Head of State. Likewise, in states, the Legislature elects
the head of the state government. Polity refers to the political system that uses the
constitutional provisions to govern, legislate and frame rules. The three pillars of the
governance system – Executive, Legislature, and Judiciary have distinct roles with adequate
checks and balances. The Judiciary is empowered to review legislation and amendments to
ensure that it conforms to the constitution.

Conclusion:

The preamble of the Indian constitution provides an excellent prelude to the constitutional laws
and provisions, laying down a framework and foundational principles for constitutional laws.
The constitution stipulates a Parliament form of a governance system, with the Executive,
Legislature, and Judiciary having distinct roles. The Polity follows the constitutional framework
to run the government, legislate and coordinate with the Legislature and Judiciary to facilitate
their functioning. The significance of the preamble is apparent as it sets the framework and
provides guiding principles for the constitutional laws. The Preamble sets the ground for
framing and interpreting Co

Major Significance of the

Preamble
An informational guide on the significance of the Preamble, its
meaning, history, and unknown facts.

The start of the prelude to the Constitution is referred to as the ‘Preamble.’ The Indian
Constitution’s Preamble is based on Jawaharlal Nehru’s ‘Objective Resolution’, which was
endorsed by the Constitution’s framers. The Preamble’s importance is determined by its
elements. It represents the people of India, who are the Constitution’s wellspring.

The Preamble uses sovereign, socialist, secular, democratic, and republic concepts to
describe the state. The Constitution’s goals are represented by the concepts of justice, liberty,
equality, and fraternity. The Indian Constitution’s adoption date is also included, which is
November 26, 1949.

The Preamble reflects the ideology of the Indian Constitution. The word ‘Sovereign’ in the
Preamble is intended to emphasise India’s battle for independence. The 42nd Amendment’s
inclusion of the word “Socialist” in the Preamble is intended to protect Gandhi’s ideas.

The word ‘Secular’ was included in the same Amendment to represent Indian society’s secular
nature. The word ‘Republic’ in the Preamble denotes that India has an elected leader; the
Indian President is the people’s choice, though indirectly elected. The term ‘Democratic’ in the
Preamble serves to bolster these beliefs even more.

Meaning of the Preamble

 The Preamble acts as a preamble to the legislation or the Constitution. A prologue is a
declaration issued by the legislature before introducing a law, and it helps comprehend some
of the provisions.

The primary goal of the Preamble is to explain the definitions of such words and to include
particular elements that must be defined. A Preamble can be used for various things, such as
limiting the meaning of a word, detailing details, or providing definitions.

History of the Preamble

Shri. B.N. Rau wrote the original Preamble and afterwards proposed it in the constituent
assembly. The original version of the Preamble merely had the words ‘Sovereign, Democratic,
and Republic’, but the 42nd Amendment added the phrases ‘Secular and Socialist’. The
Preamble was confined to expressing the fundamental characteristics of the Constitution and
the country; as a result, questions have been raised over whether the Preamble is a part of the
Constitution or not.

Significance of the Preamble

 The Constitution’s Preamble defines the document’s fundamental ideas and philosophy, and
the policy aims and objectives that the Constitution’s founding authors strived for
 In several decisions, the Supreme Court of India has stressed the relevance and value of the
Preamble
 It incorporates all of the beliefs and aspirations for which the country struggled throughout the
British Regime
 The Constitution’s objective is to bring justice, liberty, equality, and fraternity to its citizens
 It is a type of statute primer, and it helps figure out the policy and legislative purposes
 It communicates ‘for a long time what we had been contemplating or dreaming about’
 The Constitution’s source is identified as the people of India
 The enacting provision, which brings the Constitution into force, is included
 The Preamble is essential to any reading of the Constitution
 The Preamble begins the Constitution
 The Preamble has shaped India’s fate
 The enacting clause, which puts the Constitution into effect, is also found in the Preamble
 It declares the enormous rights and liberties that Indian citizens have as citizens of this country
 It establishes the fundamental rights that the Indian people wished to protect for all citizens
and the foundational type of governance and politics
 It assists the Supreme Court in deciding whether a specific law or piece of legislation is in
accordance with the Constitution

Facts of the Preamble

 Unlike the constitutions of Australia, the United States, and Canada, India’s constitution
features a lengthy Preamble
 The Preamble’s function is to define who the Constitution is for, the sanction, the direction, the
character of policy, and the Constitution’s goals and objectives
 The Preamble establishes the Constitution’s direction and purpose
 The 42nd AA introduced the Preamble to the Indian Constitution in 1976
 The Constitution was established in 1949, but it went into effect on January 26, 1950,
according to the Preamble

Preamble as the Part of Constitution of India

The Preamble is a portion of the United States Constitution. The Supreme Court revealed in
the Berubari Case (1960) that the Preamble is not a part of the Constitution. However, in the
Kesavananda Bharati Case (1973), the Supreme Court gave a verdict stating that the
Preamble is a part of the Constitution and is subject to the same amending power as any other
provision of the Constitution, as long as the basic structure of the Constitution is not destroyed.
The following aspects concerning the Constitution should be noticed in the light of
Kesavananda Bharati and other judgements:

 The Constitution’s Preamble is a section of the document

 The Constitution’s essential framework is described in the Preamble (SR Bommai Case)
 Article 368 of the Constitution gives Parliament the authority to change the Preamble
 It also lacks any constitutional legal foundation
 The Preamble is neither a source of strength nor a source of constraint
 It gives no authority and imposes no obligations
 It is significant in terms of the function it must play in the interpretation of statutes and the
interpretation of constitutional requirements
 The Preamble expresses a lofty and innovative vision, which should be studied and interpreted
according to the Constitution

Conclusion

The Preamble acts as a preface to the legislation or Constitution. A Preamble is a statement

made by the legislature to approve a bill, and it helps interpret any statute. The prologue is
essential in defining the country’s future.

2. Explain the requirements of audi alterm partem.

The Latin maxim, 'Audi Alteram Partem' is the principle of natural justice
where every person gets a chance of being heard. The meaning of the maxim itself
 says no person shall be condemned unheard. Hence, no case or judgment can be
decided without listening to the point of another party.

Audi Alteram Partem in Administrative Law

 Administrative LawSubject-Wise Law Notes
 LawBhoomi
 April 8, 2024

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Audi Alteram Partem in Administrative Law embodies the fundamental notion that
both sides of a dispute must be heard before a decision is made. It ensures fairness,
transparency and the right to a fair hearing in legal proceedings and administrative
actions. By granting each party the opportunity to present their case, Audi Alteram
Partem upholds the principles of justice, guards against arbitrariness and promotes
the rule of law.

Contents hide

1. What is Audi Alteram Partem?

2. Essential Elements of Audi Alteram Partem

2.1. Notice

2.2. Hearing

2.3. Evidence

2.4. Cross-examination

2.5. Legal Representation

3. Exceptions to Audi Alteram Partem

3.1. Statutory Exclusion

3.2. Legislative Function

3.3. Impracticability

3.4. Academic Evolution

3.5. Inter-Disciplinary Action

4. Conclusion

What is Audi Alteram Partem?

Audi Alteram Partem is a Latin phrase that translates to “hear the other side.” It is a
fundamental principle of natural justice that ensures fairness in legal proceedings and
administrative actions. This principle requires that all parties involved in a dispute or
legal matter should have the opportunity to be heard and present their case before a
decision is made.

It is based on the belief that a fair decision can only be reached when all sides of an
argument are considered and given a chance to respond. Audi Alteram Partem in
Administrative Law is considered a cornerstone of the rule of law and is essential for
upholding justice and preventing arbitrary decisions.

Essential Elements of Audi Alteram Partem

The principle of audi alteram partem is a fundamental aspect of natural justice and fair
legal proceedings. Its essential elements include:

Notice
Notice is a fundamental element of natural justice, ensuring that parties are informed
of any action proposed against them. It provides individuals with the opportunity to
respond and defend themselves. Without proper notice, any subsequent order or
decision is considered void ab initio or void from the beginning.

The right to notice is crucial as it allows individuals to understand the facts and
charges against them before a hearing. Notice must include essential details such as
the date, time and place of the hearing, as well as the jurisdiction under which the
case is filed. Additionally, it should clearly state the charges and proposed actions
against the individual. Failure to include any of these details renders the notice invalid.

In the case of Punjab National Bank v. All India Bank Employees

Federation, the notice provided to the party lacked clarity regarding the imposition of
penalties. As a result, the penalty imposed was considered invalid due to the improper
notice.

Similarly, in the case of Keshav Mills Co. Ltd. v. Union of India, it was emphasised
that notices must be clear and unambiguous. Ambiguous notices do not fulfill the
requirement of providing reasonable and proper notice to the parties involved.

Hearing
Fair hearing is another crucial aspect of the principle of audi alteram partem, ensuring
that parties have the opportunity to present their case and be heard before any
decision is made. If an authority passes an order without giving the affected party a
fair hearing, the order is considered invalid.

In the case of Harbans Lal v Commissioner and others, it was emphasised that a
fair hearing is an essential part of natural justice. Parties should be given a reasonable
opportunity to be heard, either orally or in writing, as determined by the authority.
However, this requirement may vary if the statute under which the action is taken
provides otherwise. The authority has a duty to ensure that affected parties have the
opportunity for an oral or personal hearing.

Evidence
Evidence is a critical component of any legal proceeding and it must be presented
when both parties are present. The judicial or quasi-judicial authority will base its
decision on the evidence presented before it. In the case of Stafford v Minister of
Health, it was held that no evidence should be accepted in the absence of the other
party. If any such evidence is recorded, it is the duty of the authority to make it
available to the other party.

Similarly, in the case of Hira Nath v Principal, it was established that this principle
extends beyond formal evidence. Any information, such as previous convictions, on
which the court may rely without giving the affected party a chance to deny it, should
be made known to the party.

Cross-examination
Cross-examination is a vital aspect of the legal process, allowing parties to challenge
evidence presented against them without necessarily revealing the identity of the
person providing the evidence. While the court is not obligated to disclose the identity
of the person or the material against them, the opportunity for cross-examination
must be provided.

In the case of Kanungo & Co. v Collector of Customs, the issue arose when the
police, acting under the Sea Customs Act, seized watches from a business property
based on information provided by an undisclosed individual. Despite the importance of
cross-examination in challenging the evidence, the court ruled that the principle of
natural justice was not violated by denying the concerned person the opportunity to
cross-examine the witness in matters involving goods seized under the Sea Customs
Act.

Legal Representation
Legal representation, while not always deemed essential for a fair hearing in
administrative proceedings, can significantly impact a party’s ability to understand
and effectively navigate the legal process. In certain circumstances, the denial of the
right to legal representation may constitute a violation of natural justice.

In cases such as J.J. Mody v State of Bombay and Krishna Chandra v Union of
India, it was established that refusing legal representation amounts to a breach of
natural justice. This is because the party may not fully comprehend the intricacies of
the law and thus should be afforded the opportunity to be represented by legal
counsel.

Exceptions to Audi Alteram Partem

The rule of audi alteram partem in Administrative Law is not universally applicable and
may be excluded in certain circumstances where it would not serve a meaningful
purpose. This exclusion is not a deviation from the principle of natural justice but
rather a recognition that in some situations, the requirement for a formal hearing may
be unnecessary or impractical.
Statutory Exclusion
Statutory exclusion occurs when the governing statute does not explicitly provide for a
hearing or does not mention the application of natural justice principles. In such cases,
the courts may uphold the exclusion, as long as it does not lead to unfairness or
arbitrariness.

However, if the exclusion is arbitrary, unreasonable or unfair, it may be challenged

under Article 14 and Article 21 of the Indian Constitution. (Held in: Maneka Gandhi
versus Association of India, Karnataka Public Service Commission versus
B.M. Vijay Shankar and Ram Krishna Verma versus Province of U.P.)

Legislative Function
Legislative functions, which involve the enactment of general rules or laws, may not
require individual hearings as they are aimed at the general public good rather than
specific individuals. Similarly, administrative actions that are authoritative in nature
and do not affect individual rights may not necessitate a formal hearing.

The Indian Constitution excludes the application of natural justice principles in certain
articles, such as Art. 22, 31(A), (B), (C) and 311(2), which deal with specific provisions
related to legal proceedings and administrative actions. However, if the exclusion of
natural justice principles results in arbitrary or unfair treatment, the courts may
intervene to ensure fairness and justice.

Impracticability
Impracticability is a valid reason for excluding the application of the audi alteram
partem in Administrative Law. This means that while the principle of natural justice
requires giving the opportunity to be heard, there are situations where it may not be
feasible to do so. In such cases, the rule may be excluded.

Academic Evolution
In academic settings, where the exercise of power is purely regulatory, the need for a
formal hearing may not arise.

For example, in the case of Jawaharlal Nehru University v. B.S. Narwal, a student
was expelled for poor academic performance without a pre-decisional hearing.

The Supreme Court recognised that in academic adjudication, where experts assess
the quality of work over time, the principle of natural justice may not always apply in
the same manner as in legal proceedings.

Inter-Disciplinary Action
Interdisciplinary actions, such as suspensions, may also not require adherence to the
rule of natural justice. In S.A. Khan v. State of Haryana, a deputy inspector general
was suspended based on complaints and he argued that he was not given a chance to
be heard. The Supreme Court held that in such cases, where the decision-making
process involves multiple disciplines, a formal hearing may not be necessary.

Conclusion
Audi Alteram Partem, as a principle of natural justice, embodies the essence of
fairness and due process in legal proceedings. Its concept revolves around the
fundamental idea that all parties should have the opportunity to present their case
and respond to allegations before a decision is made.

The essentials of Audi Alteram Partem in Administrative Law include the right to
notice, a fair hearing, the presentation of evidence, cross-examination and legal
representation. While there are exceptions to its application, such as in cases of
impracticability or legislative functions, Audi Alteram Partem remains crucial in
upholding justice, preventing arbitrary decisions and ensuring transparency and
fairness in legal systems worldwide.

Audi Alteram Partem

By Ashwini D | Views 202003

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The rule of natural justice has evolved with the growth of civilization. Natural justice is the concept of common law which
implies fairness, reasonableness, equality and equity. In India, the principles of natural justice are the grounds of Article
14 and 21 of the Constitution. Article 14 enshrines that every person should be treated equally. Article 21 in its judgment
of Maneka Gandhi vs. The Union of India[1], it has been held that the law and procedure must be of a fair, just and
reasonable kind. The principle of natural justice comes into force when no prejudice is caused to anyone in any
administrative action.The principle ofAudi Alteram Partemis the basic concept of the principle of natural justice. This
doctrine states the no one shall be condemned unheard. This ensures a fair hearing and fair justice to both the parties.
Under this doctrine, both the parties have the right to speak. No decision can be declared without hearing both the
parties. The aim of this principle is to give an opportunity to both the parties to defend themselves.

Introduction:
Audi alteram partem means ‘ hear the other side’, or ‘no man should be condemned unheared’ or ‘both the sides must
be heard before passing any order’.

Principle Explained:
The second fundamental principle of natural justice is audi alteram partem, i.e., no man should be condemned unheard,
or both the sides must be heard before passing any order. De Smith[1]says, ‘ no proposition can be more clearly
established than that a man cannot incur the loss of liberty or property for an offence by a judicial proceeding until he
has had a fair opportunity of answering the case against him’. A party is not to suffer in person or in purse without an
opportunity of being heard’. This is the first principle of civilized jurisprudence and is accepted by laws of men and god.
In short, before an order is passed against any person, reasonable opportunity of being heard must be given to him.
Generally, this maxim includes two elements: (i) Notice; and (ii) Hearing.

(A) Notice:
Before any action is taken, the affected party must be given a notice to show cause against the proposed action and
seek his explanation. It is a sine qua non of the right of fair hearing. Any order passed without giving notice is against
the principles of natural justice and is void ab initio. Before taking any action, it is the right of the person to know the
facts. Without knowing the facts of the case, no one can defend himself. The right to notice means the right of being
known. The right to know the facts of the suit or case happens at the start of any hearing. Therefore, notice is a must to
start a hearing. A notice must contain the time, place and date of hearing, jurisdiction under with the case is filed, the
charges, and proposed action against the person. All these things should be included in a notice to make it proper and
adequate. Whenever a statute makes it clear that a notice must be issued to the party and if no compliance or failure to
give notice occurs, this makes the act void. The article should contain all the essentials to it. If it only contains the
charges but not the ground or time or date, then the notice must be held invalid and vague. Non-issue of the notice or
any defective service of the notice do not affect the jurisdiction of the authority but violates the principle of natural
justice.

In bagg case[2], James Bagg, a Chief Burgess of Plymouth had been disfranchised for unbecoming conduct in as
much as it was alleged that he had told the Mayor, ‘ you are a cozening knave. I will make thy neck crack’ and by
‘turning the hinder part of his body in an inhuman and uncivil manner’ towards the mayor, said, ‘come and kiss’ he was
reinstated by mandamus as no notice or hearing was given to him before passing the impugned order.

In a case of Punjab National Bank v. All India Bank Employees Federation[3], the notice contained certain charges
but the penalty was imposed on the charges other than those mentioned in the notice. Thus, the charges on which the
penalty was imposed were not contained in the notice served on the person concerned. The notice was not proper and,
therefore, imposition of penalty was invalid. It is to be noted if the person concerned is aware of the case against him
and not prejudiced in preparing his defense effectively the requirement of notice will not be insisted upon as a mere
technical formalities and proceeding will not be vitiated merely on the technical ground. That the person concerned was
not served notice before taking the action as in case of Keshav Mills Co. Ltd. V. Union of India[4], The notice is
required to be clear and unambiguous. If it is ambiguous or vague, it will not be treated as reasonable and proper
notice. If the notice does not specify the action proposed to be taken, it is taken as vague and, therefore, no proper as in
case of Abdul Latif v. Commr[5]. The notice will also be vague if it does not specify the property proposed to be
acquired as in case of Tulsa Singh v. State of Haryana[6]. As regards the detention under any law providing for
preventive, Clause (5) of Article 22 provides that in such condition the making the order for such detention must, as
soon as may be, communicate to the detenue the grounds on which the order has been made and must give him the
earliest opportunity of making a representation against the order. The grounds communicated to the detenue must not
be vague or insufficient or irrelevant, vague or in adequate, the detenue is entitled to be released.

(B) Hearing: - Oral or Personal Hearing- How Far Necessary:

The second ingredient of audi alteram partam (hear the other side) rule is the rule of hearing. If the order is passed by
the authority without providing the reasonable opportunity of being heard to the person affected by it adversely will be
invalid and must be set aside as in the cases of Harbans Lal v. Commissioner[7], National Central Co-operative
Bank v. Ajay Kumar[8]and Fateh Singh v. State of Rajasthan[9]. The reasonable opportunity of hearing which is also
well known as 'fair hearing' is an important ingredient of the audi alteram partem rule. This condition may be complied
by the authority by providing written or oral hearing which is the discretion of the authority, unless the statue under
which the action being taken by the authority provides otherwise. Thus like U.S.A. and England, the Courts in India do
not consider the right to oral or personal hearing as part of the principle of Audi Alteram Partem unless the statue under
which the action is taken by the authority provides for the oral or personal hearing unless it is not indicated at without
oral or personal hearing the person cannot adequately present. Personal or oral hearing is important when the context
requires it was required in the case of A.K. Gopalan v. State of Madras. It is the duty of the authority who will ensure
that the affected party may be given an opportunity of oral or personal hearing if the context requires otherwise.
However, the above rule of fair hearing requires that the affected party should be given an opportunity to meet the case
against him effectively and this may also be achieved by providing opportunity to the affected person by making 'written
representation' instead of oral or personal hearing as was provided in the case of Union of India v. J.P. Mitter.

(C) Evidence:
Evidence is an important part which is to be brought properly before the Court in the presence of both the parties and a
judicial or quasi judicial authority must have to act on the evidence produced as in the case of aR v. Bodmin and not
merely on any information which the authority may receive otherwise as in the case of Collector of Central Excise v.
Sanwarmal [10].Ordinarily, no evidence personal or oral should be received at the back of other party and if any such
evidence is recorded, it is duty of the authority that such evidence must be made available to the other party as in the
case of Stafford v. Minister of Health and in another case of Hira Nath v. Principal. The principle is not confined to
formal evidence but extends to any material including information regarding previous conviction, upon which the
Tribunal may act, without giving opportunity to the affected party to rebut it. In case of Keshav Mill Co. v. Union of
India[11]the Supreme Court was not ready to lay down an inflexible rule that it was not necessary to show the report of
enquiry committee to the affected person. The court made it clear that whether the report of the enquiry committee
should be furnished or not depends in every individual case on merits of the case.

(D) Cross Examination;

The adjudicating authority in a fair hearing is not required only to disclose the person concerned the evidence or
material to be taken against him, but he should be provided an opportunity to rebut the evidence or material. The
important question before the authority is that the witness should be cross-examined or not.

In another case of Kanungo & Co. v. Collector of Customs[12]the business premises of a person were searched and
certain watches were confiscated by the authority under Sea Customs Act. The said person was not allowed to cross-
examine the persons who gave information to the authority. There was no violation of the natural justice and the Court
held that the principles of natural justice do not require the authority to allow the person concerned the right to cross
examine the witnesses in the matters of seizure of goods under the Sea Customs Act. If the person concerned is
allowed the right to cross-examine, it is not necessary to follow the procedure laid down in the Indian Evidence Act.

(E) Legal Representation;

An important question is whether right to be heard includes right to legal representation? Fairly speaking, the
representation through a lawyer in the administrative adjudication is not considered as an indispensable part of the fair
hearing. But, in certain situations if the right to legal representation is denied, then it amounts to violation of natural
justice. Thus where the case involves question of law as in case of J.J. Mody v. State of Bombay and in another case
of Krishna Chandra v. Union of India, the denial of legal representation will amount of violation of natural justice
because in such conditions the party may not be able to understand the question of law effectively and, therefore, he
should be given an opportunity of being heard fairly.

Exceptions To Audi Alteram Partem:

The word exception in the context of natural justice is really a misnomer, but in the below mentioned exclusionary
cases, the rule of audi alteram partem is held inapplicable not by way of an exception to “fair play in action”, but
because nothing unfair can be inferred by not affording an opportunity to present or meet a case. But such situations
where nothing unfair can be inferred by not affording a fair hearing must be few and exceptional in every civilized
society.

(1) Statutory Exclusion:

Natural justice is implied by the Courts when the parent statute under which an action is being taken by the
Administration is silent as to its application. Omission to mention the right of hearing in the statutory provision does not
ipso facto exclude a hearing to the affected Maneka Gandhi vs. Union of India, Karnataka Public Service
Commission vs. B.M. Vijay Shankar, Ram Krishna Verma vs. State of U.P.

A statute can exclude natural justice either expressly or by necessary implication. But such a statute may be challenged
under Art.14 so it should be justifiable. In Charan Lal Sahu vs UOI (Bhopal Gas Disaster case) is a classical example
of the application of this exception. In this case the constitutional validity of the Bhopal Gas Disaster (Processing of
Claims) Act, 1985, which had authorized the Central Government to represent all the victims in matters of compensation
award, had been challenged on the ground that because the Central Government owned 22 percent share in the Union
Carbide Company and as such it was a joint tort feasor and thus there was a conflict between the interests of the
government and the victims. The court negative the contention and observed that even if the argument was correct the
doctrine of necessity would be applicable to the situation because if the government did not represent the whole class of
gas victims no other sovereign body could so represent and thus the principles of natural justice were no attracted.

(2) Legislative Function:

A ground on which hearing may be excluded is that the action of the Administrative in question is legislative and not
administrative in character. Usually, an order of general nature, and not applying to one or a few specified persons, is
regarded as legislative in nature. Legislative action, plenary or subordinate, is not subject to the rules of natural justice
because these rules lay down a policy without reference to a particular individual. On the same logic, principles of
natural justice can also be excluded by a provision of the Constitution also. The Indian Constitution excludes the
principles of natural justice in Art. 22, 31(A), (B), (C) and 311(2) as a matter of policy. Nevertheless, if the legislative
exclusion is arbitrary, unreasonable and unfair, courts may quash such a provision under Art.14 and 21 of the
Constitution. In Charan Lal Sahu vs. UOI, the constitutional validity of the Bhopal Gas Disaster (Processing of Claims)
Act, 1985 was involved. This legislation provide for details of how to determine claims and pay them. The affected
parties approached the SC and contended that no hearing was provided to them and it was violative of Audi Alteram
Partem. The SC held, “For legislation by Parliament no principle of natural justice is attracted, provided such legislation
is within the competence of the Legislature. "Emergency In India, it has been generally acknowledged that in cases of
extreme urgency, where interest of the public would be jeopardizes by the delay or publicity involved in a hearing, a
hearing before condemnation would not be required by natural justice or in exceptional cases of emergency where
prompt action, preventive or remedial, is needed, the requirement of notice and hearing may be obviated. Therefore, if
the right to be heard will paralyze the process, law will exclude it. In Mohinder Singh Gill vs. CEC, whether notice and
right to be heard must been given or not was been laid down before the SC. In Firozhpur Constituency Parliamentary
Election counting was been going on where in some segments counting were going on and in some it was over. One
candidate was having a very good lead but before the declaration the very purpose of surveillance and there is every
possibility of the ends of justice being defeated instead of being served.

(3) Impractibility:
Natural justice can be followed and applied when it is practicable to do so but in a situation when it is impracticable to
apply the principle of natural justice then it can be excluded. In Bihar School Examination Board vs. Subhash
Chandra, the Board conducted final tenth standard examination. At a particular centre, where there were more than
thousand students, it was alleged to have mass copying. Even in evaluation, it was prima-facie found that there was
mass copying as most of the answers were same and they received same marks. For this reason, the Board cancelled
the exam without giving any opportunity of hearing and ordered for fresh examination, whereby all students were
directed to appear for the same. Many of the students approached the Patna HC challenging it on the ground that
before cancellation of exam, no opportunity of hearing was been given to the students. The HC struck down the
decision of the Board in violation of Audi Alteram Partem. The Board unsatisfied with the decision of the Court
approached the SC. The SC rejected the HC judgment and held that in this situation, conducting hearing is impossible
as thousand notices have to be issued and everyone must be given an opportunity of hearing, cross-examination,
rebuttal, presenting evidences etc. which is not practicable at all. So, the SC held that on the ground of impracticability,
hearing can be excluded.

(4) Academic Evaluation:

Where nature of authority is purely administrative no right of hearing can be claimed. In Jawaharlal Nehru University
v. B.S. Narwal, B.S Narwal, a student of JNU was removed from the rolls for unsatisfactory academic performances
without being given any pre decisional hearing. The Supreme Court held that the very nature of academic adjudication
appears to negative any right of an opportunity to be heard. Therefore, if the competent academic authorities examine
and asses the work of a student over a period of time and declare his work unsatisfactory, the rules of natural justice
may be excluded.
(5) Inter-Disclipinary Action:
In Inter- Disciplinary action like suspension etc. there is no requirement to follow the principle of natural justice. In S.A
Khan vs. State of Haryana, Mr. Khan an IPS Officer holding the post of Deputy Inspector General of Haryana;
Haryana Govt., was suspended by the Haryana Government due to various complaints against him. Thus, he
approached the Supreme Court on the ground of violation of PNJ as he was not given an opportunity to be heard. The
SC held that the suspension being interim-disciplinary action, there is no requirement to afford hearing. It can be
ordered without affording an opportunity of hearing.

Conclusion:
The principle of natural justice has evolved through civilization. It has not evolved from the constitution but from
mankind itself. Every person has the right to speak and be heard when allegations are being put towards him or her.
The Latin maxim, ‘Audi Alteram Partem’ is the principle of natural justice where every person gets a chance of being
heard. The meaning of the maxim itself says no person shall be condemned unheard. Hence, no case or judgment can
be decided without listening to the point of another party. There are many cases where this principle of natural justice is
excluded, and no option is given to the party to speak. Natural justice means that justice should be given to both the
parties in a just, fair and reasonable manner. Before the court, both the parties are equal and have an equal opportunity
to represent them.

3. Discuss the nature and scope of Jurisdiction of the Supreme Court under Indian
Constitution.

Its exclusive original jurisdiction extends to any dispute between the

Government of India and one or more States or between the Government of
India and any State or States on one side and one or more States on the other or
between two or more States, if and insofar as the dispute involves any question
(whether of law ...

Jurisdiction of the Supreme Court

The Supreme Court has original, appellate and advisory jurisdiction. Its exclusive original
jurisdiction extends to any dispute between the Government of India and one or more
States or between the Government of India and any State or States on one side and one or
more States on the other or between two or more States, if and insofar as the dispute
involves any question (whether of law or fact) on which the existence or extent of a legal
right depends. In addition, Article 32 of the Constitution gives an extensive original
jurisdiction to the Supreme Court for enforcement of Fundamental Rights. It is empowered
to issue directions, orders or writs, including writs in the nature of habeas corpus,
mandamus, prohibition, quo warranto and certiorari to enforce them. The Supreme Court
has been conferred with power to direct transfer of any civil or criminal case from one
High Court to another High Court or from a Court subordinate to another High Court. If
satisfied that cases involving the same or substantially the same questions of law are
pending before it and one or more High Courts or before two or more High Courts and that
such questions are substantial questions of general importance, the Supreme Court may
withdraw a case or cases pending before the High Court or High Courts and dispose of all
such cases itself. Under the Arbitration and Conciliation Act, 1996, International
Commercial Arbitration can also be initiated in the Supreme Court.

The appellate jurisdiction of the Supreme Court can be invoked by a certificate granted by
the High Court concerned under Article 132(1), 133(1) or 134 of the Constitution in respect
of any judgement, decree or final order of a High Court in both civil and criminal cases,
involving substantial question of law as to the interpretation of the Constitution. Appeals
also lie to the Supreme Court in civil matters if the High Court concerned certifies : (a) that
the case involves a substantial question of law of general importance, and (b) that, in the
opinion of the High Court, the said question needs to be decided by the Supreme Court. In
criminal cases, an appeal lies to the Supreme Court if the High Court (a) has on appeal
reversed an order of acquittal of an accused person and sentenced him to death or to
imprisonment for life or for a period of not less than 10 years, or (b) has withdrawn for trial
before itself any case from any Court subordinate to its authority and has in such trial
convicted the accused and sentenced him to death or to imprisonment for life or for a
period of not less than 10 years, or (c) certified that the case is a fit one for appeal to the
Supreme Court. Parliament is authorised to confer on the Supreme Court any further
powers to entertain and hear appeals from any judgement, final order or sentence in a
criminal proceeding of a High Court.

The Supreme Court also has a very wide appellate jurisdiction over all Courts and
Tribunals in India in as much as it may, in its discretion, grant special leave to appeal
under Article 136 of the Constitution from any judgment, decree, determination, sentence
or order in any cause or matter passed or made by any Court or Tribunal in the territory of
India.

The Supreme Court has special advisory jurisdiction in matters which may specifically be
referred to it by the President of India under Article 143 of the Constitution. There are
provisions for reference or appeal to this Court under Article 317(1) of the Constitution and
other statutes. Election Petitions under Part III of the Presidential and Vice Presidential
Elections Act, 1952 are also filed directly in the Supreme Court.
Under Articles 129 and 142 of the Constitution, the Supreme Court has been vested with
power to punish for contempt of Court including the power to punish for contempt of itself.
In case of contempt other than the contempt referred to in Rule 2, Part-I of the Rules to
Regulate Proceedings for Contempt of the Supreme Court, 1975, the Court may take
action (a) Suo motu, or (b) on a petition made by Attorney General, or Solicitor General, or
(c) on a petition made by any person, and in the case of a criminal contempt with the
consent in writing of the Attorney General or the Solicitor General.

Under Order XL of the Supreme Court Rules the Supreme Court may review its judgment
or order but no application for review is to be entertained in a civil proceeding except on
the grounds mentioned in Order XLVII, Rule 1 of the Code of Civil Procedure and in a
criminal proceeding except on the ground of an error apparent on the face of the record.
Order XLVIII of the Supreme Court Rules, 2013 provides that the Supreme Court can
reconsider its final judgment or order by way of a curative petition on limited grounds
after the dismissal of review petition.

PUBLIC INTEREST LITIGATION

In India, a writ petition may be moved not only by an aggrieved individual but also by a
public-spirited individual or group of persons in matters in which interest of the public at
large is involved. The Court can be moved either by filing a writ petition or by addressing a
letter to the Hon’ble the Chief Justice of India highlighting the question of public
importance for invoking this jurisdiction. On several occasions, the Supreme Court has
treated letters, telegrams, postcards, and news reports as writ petitions. Such a concept is
popularly known as ‘Public Interest Litigation’ (PIL). This judicial innovation of the PIL
system is unique to the Supreme Court of India.

LEGAL AID
If a person belongs to the poor section of the society having annual income of less than
Rs. 5,00,000/- or belongs to Scheduled Caste or Scheduled Tribe, a victim of natural
calamity, is a woman or a child or a mentally ill or otherwise disabled person or an
industrial workman or is in custody including custody in protective home, he/she is entitled
to get free legal aid from the Supreme Court Legal Aid Committee. The aid so granted by
the Committee includes cost of preparation of the matter and all applications connected
therewith, in addition to providing an Advocate for preparing and arguing the case. Any
person desirous of availing legal service through the Committee has to make an
application to the Secretary and hand over all necessary documents concerning his case
to it. The Committee after ascertaining the eligibility of the person provides necessary
legal aid to him/her.

Persons belonging to the middle income group i.e. with income above Rs. 60,000/- but
under Rs. 7,50,000/- per annum are also eligible to get legal aid from the Supreme Court
Middle Income Group Society on nominal payments. The Supreme Court also has a
Mediation Centre which mediates and resolves matters that are referred to it by the Court.

HIGH COURTS
The High Court stands at the head of a State’s judicial administration. There are 25 High
Courts in the country, three having jurisdiction over more than one State. Among the
Union Territories, Delhi, and Union Territories of Jammu & Kashmir and Ladakh have a
High Court of their own. Other five Union Territories come under the jurisdiction of
different High Courts. Each High Court comprises a Chief Justice and such other Judges as
the President may, from time to time, appoint. The Chief Justice of a High Court is
appointed by the President in consultation with the Chief Justice of India and the Governor
of the State. The procedure for appointing puisne Judges is the same except that the Chief
Justice of the High Court concerned is also consulted. Judges in the High Court hold office
until the age of 62 years and are removable in the same manner as a Judge of the
Supreme Court. To be eligible for appointment as a Judge one must be a citizen of India
and have held a judicial office in India for ten years or must have practised as an Advocate
of a High Court or two or more such Courts in succession for a similar period.

Each High Court has power to issue to any person within its jurisdiction directions, orders,
or writs including writs which are in the nature of habeas corpus, mandamus, prohibition,
quo warranto and certiorari for enforcement of Fundamental Rights and for any other
purpose. This power may also be exercised by any High Court exercising jurisdiction in
relation to territories within which the cause of action, wholly or in part, arises for exercise
of such power, notwithstanding that the seat of such Government or authority or residence
of such person is not within those territories.

Each High Court has powers of superintendence over all Courts within its jurisdiction. It
can call for returns from such Courts, make and issue general rules and prescribe forms to
regulate their practice and proceedings and determine the manner and form in which book
entries and accounts shall be kept. Annexure A shows the seat, year of establishment, and
territorial jurisdiction of the High Courts.
There is also an Advocate General for each State appointed by the Governor, who holds
office during the pleasure of the Governor. An Advocate General must be a person
qualified to be appointed as a Judge of the High Court. His duty is to give advice to State
Governments upon such legal matters and to perform such other duties of legal character,
as may be referred or assigned to him by the Governor. The Advocate General has the
right to speak and take part in the proceedings of the State Legislature without the right to
vote.

LOK ADALATS
Lok Adalats is an alternative dispute redressal mechanism to arrive at amicable
settlement of disputes outside of court. Under the Legal Services Authorities Act, 1987,
every State Authority or District Authority or the Supreme Court Legal Services Committee
or every High Court Legal Services Committee or, as the case may be, Taluk Legal
Services Committee may organise Lok Adalats. Every award of Lok Adalat shall be deemed
to be a decree of a civil court or order of a Tribunal and shall be final and binding on the
parties to the dispute. The Act also provides that with respect to the cases decided at Lok
Adalat, the court fees paid by the parties is refunded.

Annexure ‘A’

Year of
S.
Name of the High Court Establishmen
No.
t

1. Bombay High Court 1862

2. Calcutta High Court 1862

3. Madras High Court 1862

4. Allahabad High Court 1866

 Year of
S.
Name of the High Court Establishmen
No.
t

5. Karnataka High Court 1884

6. Patna High Court 1916

7. Guwahati High Court 1948

8. Odisha High Court 1948

9. Rajasthan High Court 1949

10. Madhya Pradesh High Court 1956

11. Kerala High Court 1956

12. Gujarat High Court 1960

13. Delhi High Court 1966

14. Punjab & Haryana High Court 1966

15. Himachal Pradesh High Court 1971

16. Sikkim High Court 1975

17. Chhattisgarh High Court 2000

18. Uttarakhand High Court 2000

 Year of
S.
Name of the High Court Establishmen
No.
t

19. Jharkhand High Court 2000

20. Tripura High Court 2013

21. Manipur High Court 2013

22. Meghalaya High Court 2013

23. Telangana High Court 2019

24. Andhra Pradesh High Court 2019

Jammu & Kashmir and Ladakh

(Note: In 1928, Jammu & Kashmir high court was established. Post-
25. 2019
bi-furcation of J&K into two Union Territories, there is now a common
High Court.)

JURISDICTION AND SEAT OF HIGH COURTS

1.
IAS Preparation
2. UPSC Preparation Strategy
3. Original Jurisdiction Of The Supreme Court
Original Jurisdiction Of The Supreme Court -
Indian Polity
Jurisdiction of courts in India is an important topic in Indian polity and governance for the IAS exam. In this
article, you can read about the original jurisdiction of the Supreme Court in India.

Jurisdiction Meaning
Jurisdiction is the authority given to a legal body like a court to administer justice within a defined field of
responsibility.

The Supreme Court in India has three types of jurisdictions – original, appellate and advisory as provided in
Articles 131, 133 – 136 and 143 respectively of the Indian Constitution.

Original Jurisdiction of the SC in India

Original jurisdiction of a court refers to a matter for which the particular court is approached first. In the case of
the Supreme Court in India, its original jurisdiction is covered under Article 131. It involves the following cases:

1. Any dispute between the Indian Government and one or more States.
2. Any dispute between the Indian Government and one or more States on one side and one or more
States on the other side.
3. Any dispute between two or more States.
4. Article 32 of the Constitution provides original jurisdiction to the SC for matters regarding the
enforcement of Fundamental Rights.
5. The SC can issue writs, directions, or orders including writs in the nature of mandamus, habeas corpus,
quo warranto, prohibition and certiorari.
6. The SC also has the power to direct the transfer of a criminal or civil case from the High Court in one
State to the High Court in another State.
7. It can also transfer cases from one subordinate court to another State High Court
8. If the SC deems that cases involving the same questions of law are pending before it and one or more
High Courts, and that these are significant questions of law, it can withdraw the cases before the High
Court or Courts and dispose off all these cases itself.
9. The Arbitration and Conciliation Act, 1996 gives SC the authority to initiate international commercial
arbitration.

Appellate Jurisdiction

Under this, the Supreme Court can hear cases only when they are appealed against a High Court order.

Advisory Jurisdiction

Under this, the President can request the Supreme Court to offer its opinion on any issue of law or fact.
Review Jurisdiction

This is covered under Article 137 and it gives SC the authority to review its judgements. There are two grounds
on which a review is permitted. They are as follows:

1. If there has been an apparent error on the face of record leading to the perversity of judgement, or
2. If new evidence has been uncovered which was not available earlier despite the best attempt by the
party or out of no fault of the party.
Original Jurisdiction of the Supreme Court – Indian Polity:–Download PDF Here
UPSC Questions related to Original Jurisdiction of the
Supreme Court
Q1

What kinds of jurisdiction does the Supreme Court have?

The SC has original, appellate, advisory and review jurisdiction.
Q2

What is the original jurisdiction of the Supreme Court of India?

Original jurisdiction of a court refers to a matter for which the particular court is approached first. In the case of
the Supreme Court in India, its original jurisdiction is covered under Article 131.
Q3

When did Supreme Court of India come into existence?

28 January 1950
Q4

Which high courts in India have original jurisdiction?

In India, five High Courts (i.e., High Courts of Delhi, Bombay, Calcutta, Madras and Himachal Pradesh) have
ordinary original civil jurisdiction.

Important Terms related to High Courts in India:

Tribunal – A tribunal is a term for anybody acting judicially, whether or not it is called a tribunal in its
title. For example, an advocate appearing before a Court on which a single Judge was sitting could
describe that judge as ‘their tribunal’.

Permanent Bench – A permanent bench comprises of one or more High Court judges who sit yearlong
at a particular location that is different from the permanent seat of the High Court.

Circuit Bench – A Circuit Bench is for territories which are far-flung but do not have too many matters
to justify a full-fledged permanent bench. As a result, once or twice a year, some judges travel to these
areas and dispose off all the High Court appeals of that jurisdiction.

Division Bench – In a Division Bench, a case is heard and judged by at least 2 judges.

Full Bench – A Full bench refers to a court of law consisting of a greater-than-normal number of
judges.
Did you know?

Calcutta High Court was set up on 1st July 1862. It is one of the three Chartered High Courts in India
along with High Court of Bombay and Madras.

Conclusion

We have already come up with the Powers and Functions of the High Court. In this article, we
mentioned the total number of high courts in India along with the list of high courts and their
establishment year and jurisdiction areas. This will enhance your UPSC Prelims exam preparation.

4. Explain the origin and development of Human Rights.

The concept of human rights has been a part of societies throughout history,
with ideas about rights and responsibilities dating back to ancient
civilizations. However, the idea of human rights as we know it today has
developed over time through a variety of historical events, philosophical ideas,
and international agreements. Some key milestones in the development of
human rights include:

The idea of human rights spread quickly to India, Greece and eventually Rome. The
most important advances since then have included: 1215: The Magna Carta—gave
people new rights and made the king subject to the law. 1628: The Petition of Right
—set out the rights of the people.

Poona Pact
India [1932]
Poona Pact, (September 24, 1932), agreement between Hindu leaders in India granting
new rights to Dalits (low-caste Hindu groups then often labeled “untouchables”). The
pact, signed at Poona (now Pune, Maharashtra), resulted from the Communal Award of
August 4, 1932, a proposal by the British government which would allot seats in the
various legislatures of India to the different communities in an effort to resolve the
various tensions between communal interests. Dalit leaders, especially Bhimrao Ramji
Ambedkar, supported the proposal, believing it would allow Dalits to advance their
interests. Mahatma Gandhi, on the other hand, objected to the provision of an electorate
for the Dalits separate from the Hindu electorate, which in his view would weaken India
in its bid for independence. Though in prison, Gandhi announced a fast unto death, which
he began on September 18.

Ambedkar refused to abandon his support for separate electorates until Gandhi was near
death. He and the Hindu leaders then agreed to the pact, which declined separate
electorates but gave increased representation to the Dalits within the Hindu electorate
for a 10-year period. Ambedkar complained of blackmail, but the pact marked the start of
the movement against “untouchability” within the Indian nationalist movement.

Human rights, rights that belong to an individual or group of individuals simply for
being human, or as a consequence of inherent human vulnerability, or because they are
requisite to the possibility of a just society. Whatever their theoretical justification,
human rights refer to a wide continuum of values or capabilities thought
to enhance human agency or protect human interests and declared to be universal in
character, in some sense equally claimed for all human beings, present and future.

It is a common observation that human beings everywhere require the realization

of diverse values or capabilities to ensure their individual and collective well-being. It
also is a common observation that this requirement—whether conceived or expressed as
a moral or a legal demand—is often painfully frustrated by social as well as natural
forces, resulting in exploitation, oppression, persecution, and other forms of deprivation.
Deeply rooted in these twin observations are the beginnings of what today are called
“human rights” and the national and international legal processes associated with them.
Historical development
The expression human rights is relatively new, having come into everyday parlance only
since World War II, the founding of the United Nations in 1945, and the adoption by the
UN General Assembly of the Universal Declaration of Human Rights in 1948. It replaced
the phrase natural rights, which fell into disfavour in the 19th century in part because
the concept of natural law (to which it was intimately linked) had become controversial
with the rise of legal positivism. Legal positivism rejected the theory, long espoused by
the Roman Catholic Church, that law must be moral to be law. The term human
rights also replaced the later phrase the rights of Man, which was not universally
understood to include the rights of women.
Origins in ancient Greece and Rome
Most students of human rights trace the origins of the concept of human rights to ancient
Greece and Rome, where it was closely tied to the doctrines of the Stoics, who held that
human conduct should be judged according to, and brought into harmony with, the law of
nature. A classic example of this view is given in Sophocles’ play Antigone, in which the
title character, upon being reproached by King Creon for defying his command not to
bury her slain brother, asserted that she acted in accordance with the immutable laws of
the gods.

In part because Stoicism played a key role in its formation and spread, Roman
law similarly allowed for the existence of a natural law and with it—pursuant to the jus
gentium (“law of nations”)—certain universal rights that extended beyond the rights of
citizenship. According to the Roman jurist Ulpian, for example, natural law was that
which nature, not the state, assures to all human beings, Roman citizens or not.

It was not until after the Middle Ages, however, that natural law became associated with
natural rights. In Greco-Roman and medieval times, doctrines of natural law concerned
mainly the duties, rather than the rights, of “Man.” Moreover, as evidenced in the
writings of Aristotle and St. Thomas Aquinas, these doctrines recognized the legitimacy
of slavery and serfdom and, in so doing, excluded perhaps the most important ideas of
human rights as they are understood today—freedom (or liberty) and equality.

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Now

The conception of human rights as natural rights (as opposed to a classical natural order
of obligation) was made possible by certain basic societal changes, which took place
gradually beginning with the decline of European feudalism from about the 13th century
and continuing through the Renaissance to the Peace of Westphalia (1648). During this
period, resistance to religious intolerance and political and economic bondage; the
evident failure of rulers to meet their obligations under natural law; and the
unprecedented commitment to individual expression and worldly experience that was
characteristic of the Renaissance all combined to shift the conception of natural law from
duties to rights. The teachings of Aquinas and Hugo Grotius on the European continent,
the Magna Carta (1215) and its companion Charter of the Forests (1217), the Petition of
Right (1628), and the English Bill of Rights (1689) in England were signs of this change.
Each testified to the increasingly popular view that human beings are endowed with
certain eternal and inalienable rights that never were renounced when humankind
“contracted” to enter the social order from the natural order and never were diminished
by the claim of the “divine right of kings.”
Natural law transformed into natural rights

John Locke

John Locke, oil on canvas by Herman Verelst, 1689; in the National Portrait Gallery, London.(more)

The modern conception of natural law as meaning or implying natural rights was
elaborated primarily by thinkers of the 17th and 18th centuries. The intellectual—and
especially the scientific—achievements of the 17th century (including the materialism
of Hobbes, the rationalism of Descartes and Leibniz, the pantheism of Spinoza, and the
empiricism of Bacon and Locke) encouraged a distinctly modern belief in natural law
and universal order and, during the 18th century—the so-called Age of Enlightenment,
inspired by a growing confidence in human reason and in the perfectibility of human
affairs—led to the more comprehensive expression of this belief. Particularly important
were the writings of Locke, arguably the most important natural-law theorist of modern
times, and the works of the 18th-century thinkers known as the philosophes,
who, centred mainly in Paris, included Montesquieu, Voltaire, and Jean-Jacques
Rousseau. Locke argued in detail, mainly in writings associated with the English Glorious
Revolution (1688–89), that certain rights self-evidently pertain to individuals as human
beings (because these rights existed in the hypothetical “state of nature” before
humankind entered civil society); that chief among them are the rights to
life, liberty (freedom from arbitrary rule), and property; that, upon entering civil society,
humankind surrendered to the state—pursuant to a “social contract”—only the right to
enforce these natural rights and not the rights themselves; and that the state’s failure to
secure these rights gives rise to a right to responsible, popular revolution. The
philosophes, building on Locke and others and embracing many and varied currents of
thought with a common supreme faith in reason, vigorously attacked religious and
scientific dogmatism, intolerance, censorship, and social and economic restraints. They
sought to discover and act upon universally valid principles governing nature, humanity,
and society, including the inalienable “rights of Man,” which they treated as a
fundamental ethical and social gospel.

Not surprisingly, this liberal intellectual ferment exerted a profound influence in the
Western world of the late 18th and early 19th centuries. Together with the Glorious
Revolution in England and the resulting Bill of Rights, it provided the rationale for the
wave of revolutionary agitation that swept the West, most notably in North America and
France. Thomas Jefferson, who had studied Locke and Montesquieu, gave poetic
eloquence to the plain prose of the 17th century in the Declaration of
Independence proclaimed by the 13 American colonies on July 4, 1776:

We hold these truths to be self-evident, 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.

Similarly, the marquis de Lafayette, who won the close friendship of George
Washington and who shared the hardships of the American Revolution, imitated the
pronouncements of the English and American revolutions in the Declaration of the Rights
of Man and of the Citizen of August 26, 1789, proclaiming that “men are born and remain
free and equal in rights” and that “the aim of every political association is the
preservation of the natural and imprescriptible rights of man.”

In sum, the idea of natural rights, forebear to the contemporary notion of human rights,
played a key role in late 18th- and early 19th-century struggles against
political absolutism. It was, indeed, the failure of rulers to respect the principles of
freedom and equality that was responsible for this development.
“Nonsense upon stilts”: the critics of natural
rights
The idea of natural rights was not without its detractors, however. In the first place,
because it was frequently associated with religious orthodoxy, the doctrine of natural
rights became less attractive to philosophical and political liberals. Additionally, because
they were conceived in essentially absolutist terms, natural rights were increasingly
considered to conflict with one another. Most importantly, the doctrine of natural rights
came under powerful philosophical and political attack from both the right and the left.

In England, for example, conservative political thinkers such as Edmund Burke and David
Hume united with liberals such as Jeremy Bentham to condemn the doctrine, the former
out of fear that public affirmation of natural rights would lead to social upheaval, the
latter out of concern lest declarations and proclamations of natural rights substitute for
effective legislation. In his Reflections on the Revolution in France (1790), Burke—a
believer in natural law who nonetheless denied that the “rights of Man” could be derived
from it—criticized the drafters of the Declaration of the Rights of Man and of the Citizen
for proclaiming the “monstrous fiction” of human equality, which, he argued, serves but
to inspire “false ideas and vain expectations into men destined to travel in the obscure
walk of laborious life.” Bentham, one of the founders of utilitarianism, was no less
scornful. “Rights,” he wrote,

Is the child of law; from real law come real rights; but from imaginary laws, from “law of nature,”
come imaginary rights.…Natural rights is simple nonsense; natural and imprescriptible rights (an
American phrase)…[is] rhetorical nonsense, nonsense upon stilts.
Agreeing with Bentham, Hume insisted that natural law and natural rights are
unreal metaphysical phenomena.

This assault upon natural law and natural rights intensified and broadened during the
19th and early 20th centuries. John Stuart Mill, despite his vigorous defense of liberty,
proclaimed that rights ultimately are founded on utility. The German jurist Friedrich Karl
von Savigny, England’s Sir Henry Maine, and other “historicalist” legal thinkers
emphasized that rights are a function of cultural and environmental variables unique to
particular communities. The English jurist John Austin argued that the only law is “the
command of the sovereign” (a phrase of Hobbes). And the logical positivists of the early
20th century insisted that the only truth is that which can be established by verifiable
experience and that therefore ethical pronouncements are not cognitively significant.
By World War I there were scarcely any theorists who would defend the “rights of Man”
along the lines of natural law. Indeed, under the influence of 19th-century
German idealism and parallel expressions of rising European nationalism, there were
some—the Marxists, for example—who, though not rejecting individual rights altogether,
maintained that rights, from whatever source derived, belong to communities or whole
societies and nations preeminently.
The persistence of the notion
Although the heyday of natural rights proved short, the idea of rights nonetheless
endured. The abolition of slavery, the implementation of factory legislation, the rise of
popular education and trade unionism, the universal suffrage movement—these and other
examples of 19th-century reformist impulses afford ample evidence that the idea was not
to be extinguished, even if its a priori derivation had become a matter of
general skepticism. But it was not until the rise and fall of Nazi Germany that the idea of
human rights truly came into its own. Many of the gruesome atrocities committed by the
Nazi regime had been officially authorized by Nazi laws and decrees, and this fact
convinced many that law and morality cannot be grounded in any purely idealist or
utilitarian or other consequentialist doctrine. Certain actions, according to this view, are
absolutely wrong, no matter what the circumstances; human beings are entitled to simple
respect, at least.

Today the vast majority of legal scholars and philosophers—particularly in the liberal
West—agree that every human being has, at least in theory, some basic rights. Indeed,
except for some essentially isolated late 19th-century and early 20th-century
demonstrations of international humanitarian concern, the last half of the 20th century
may fairly be said to mark the birth of the international as well as the universal
recognition of human rights. In the charter establishing the United Nations, for example,
all member states pledged themselves to take joint and separate action for the
achievement of “universal respect for, and observance of, human rights and fundamental
freedoms for all without distinction as to race, sex, language, or religion.” In
the Universal Declaration of Human Rights, representatives from
many cultures endorsed the rights therein set forth “as a common standard of
achievement for all peoples and all nations.” And in 1976 the International Covenant on
Economic, Social and Cultural Rights (ICESCR) and the International Covenant on Civil
and Political Rights (ICCPR), each approved by the UN General Assembly in 1966,
entered into force and effect. Together with the Universal Declaration and their
additional protocols, these documents came ultimately to be known as core elements of
the “International Bill of Human Rights.”
Defining human rights
To say that there is widespread acceptance of the principle of human rights is not to say
that there is complete agreement about the nature and scope of such rights or, indeed,
their definition. Among the basic questions that have yet to receive conclusive answers
are the following: whether human rights are to be viewed as divine, moral, or legal
entitlements; whether they are to be validated by intuition, culture, custom, social
contract, principles of distributive justice, or as prerequisites for happiness or the
achievement of human dignity; whether they are to be understood as irrevocable or
partially revocable; and whether they are to be broad or limited in number and content.
Even when the principle of human rights is accepted, there are controversies: whether
human rights are a way of privileging narrowly conceived special interests over the
common interest; whether they are the political tools of predominantly progressive elites;
whether they are a stalking horse for Western economic imperialism; and so forth. It is
thus sometimes claimed that there exists no universally agreed upon theory or even
understanding of human rights.
The nature of human rights: commonly accepted
postulates
Despite this lack of consensus, a number of widely accepted (and interrelated) postulates
can assist in the task of defining human rights. Five in particular stand out, though not
even these are without controversy.

First, regardless of their ultimate origin or justification, human rights are understood to
represent both individual and group demands for political power, wealth, enlightenment,
and other cherished values or capabilities, the most fundamental of which is respect and
its constituent elements of reciprocal tolerance and mutual forbearance in the pursuit of
all other such values or capabilities. Consequently, human rights imply both claims
against persons and institutions impeding the realization of these values or capabilities
and standards for judging the legitimacy of laws and traditions. At bottom, human rights
qualify state sovereignty and power, sometimes expanding the latter even while
circumscribing the former (as in the case of certain economic and social rights, for
example). Increasingly, human rights are said also to qualify “private sovereignty” (as in
the case, for example, of challenging the impunity of overbearing business enterprises,
protecting family members from domestic violence, and holding non-state terrorist actors
to account).

Second, human rights are commonly assumed to refer, in some vague sense, to
“fundamental,” as distinct from “nonessential,” claims or “goods.” In fact, some theorists
go so far as to limit human rights to a single core right or two—for example, the right to
life or the right to equal opportunity. The tendency is to emphasize “basic needs” and to
rule out “mere wants.”

Third, reflecting varying environmental circumstances, differing worldviews, and

inescapable interdependencies within and between different value or capability systems,
human rights refer to a wide continuum of claims, ranging from the most justiciable (or
enforceable) to the most aspirational. Human rights partake of both the legal and the
moral orders, sometimes indistinguishably. They are expressive of both the “is” and the
“ought” in human affairs.

Fourth, most assertions of human rights—though arguably not all (freedom

from slavery, genocide, or torture are notable exceptions)—are qualified by the limitation
that the rights of individuals or groups in particular instances are restricted as much as is
necessary to secure the comparable rights of others and the aggregate common interest.
Given this limitation, which connects rights to duties, human rights are sometimes
designated “prima facie rights,” so that ordinarily it makes little or no sense to think or
talk of them in absolutist terms.

Finally, if a right is determined to be a human right, it is understood to be

quintessentially general or universal in character, in some sense equally possessed by all
human beings everywhere, including in certain instances even the unborn. In stark
contrast to the divine right of kings and other such conceptions of privilege, human rights
extend in theory to every person on Earth, without regard to merit or need, simply for
being human or because they mitigate inherent human vulnerability or are requisite
to social justice.

In several critical respects, however, all these postulates raise more questions than they
answer. For instance, if, as is increasingly asserted, human rights qualify private power,
precisely when and how do they do so? What does it mean to say that a right is
fundamental, and according to what standards of importance or urgency is it so judged?
What is the value of embracing moral as distinct from legal rights as part of the
jurisprudence of human rights? Do nonjusticiable rights harbour more
than rhetorical significance? If so, how? When and according to what criteria does the
right of one person or group of people give way to the right of another? What happens
when individual and group rights collide? How are universal human rights determined?
Are they a function of culture or ideology, or are they determined according to some
transnational consensus of merit or value? If the latter, is the consensus in question
regional or global? How exactly would such a consensus be ascertained, and how would it
be reconciled with the right of nations and peoples to self-determination? Is the existence
of universal human rights incompatible with the notion of national sovereignty? Should
supranational norms, institutions, and procedures have the power to nullify local,
regional, and national laws on capital punishment, corporal punishment of children,
“honour killing,” veil wearing, female genital cutting, male circumcision, the claimed
right to bear arms, and other practices? For some in the human rights debate, this raises
a further controversy concerning how such situations comport with Western conceptions
of democracy and representative government.

In other words, though accurate, the five foregoing postulates are fraught with questions
about the content and legitimate scope of human rights and about the priorities, if any,
that exist among them. Like the issue of the origin and justification of human rights, all
five are controversial.
The content of human rights: three
“generations” of rights
Like all normative traditions, the human rights tradition is a product of its time.
Therefore, to understand better the debate over the content and legitimate scope of
human rights and the priorities claimed among them, it is useful to note the dominant
schools of thought and action that have informed the human rights tradition since the
beginning of modern times.

Particularly helpful in this regard is the notion of three “generations” of human rights
advanced by the French jurist Karel Vasak. Inspired by the three themes of the French
Revolution, they are: the first generation, composed of civil and political rights (liberté);
the second generation of economic, social, and cultural rights (égalité); and the third
generation of solidarity or group rights (fraternité). Vasak’s model is, of course, a
simplified expression of an extremely complex historical record, and it is not intended to
suggest a linear process in which each generation gives birth to the next and then dies
away. Nor is it to imply that one generation is more important than another, or that the
generations (and their categories of rights) are ultimately separable. The three
generations are understood to be cumulative, overlapping, and, it is important to
emphasize, interdependent and interpenetrating.
Liberté: civil and political rights
The first generation, civil and political rights, derives primarily from the 17th- and 18th-
century reformist theories noted above (i.e., those associated with the English, American,
and French revolutions). Infused with the political philosophy of liberal individualism and
the related economic and social doctrine of laissez-faire, the first generation conceives of
human rights more in negative terms (“freedoms from”) than positive ones (“rights to”);
it favours the abstention over the intervention of government in the quest for human
dignity. Belonging to this first generation, thus, are rights such as those set forth in
Articles 2–21 of the Universal Declaration of Human Rights, including freedom from
gender, racial, and equivalent forms of discrimination; the right to life, liberty, and
security of the person; freedom from slavery or involuntary servitude; freedom
from torture and from cruel, inhuman, or degrading treatment or punishment; freedom
from arbitrary arrest, detention, or exile; the right to a fair and public trial; freedom from
interference in privacy and correspondence; freedom of movement and residence; the
right to asylum from persecution; freedom of thought, conscience, and religion; freedom
of opinion and expression; freedom of peaceful assembly and association; and the right to
participate in government, directly or through free elections. Also included are the right
to own property and the right not to be deprived of it arbitrarily—rights that were
fundamental to the interests fought for in the American and French revolutions and to
the rise of capitalism.

Yet it would be wrong to assert that these and other first-generation rights correspond
completely to the idea of “negative” as opposed to “positive” rights. The right to security
of the person, to a fair and public trial, to asylum from persecution, or to free elections,
for example, manifestly cannot be assured without some affirmative government action.
What is constant in this first-generation conception is the notion of liberty, a shield that
safeguards the individual—alone and in association with others—against the abuse of
political authority. This is the core value. Featured in the constitution of almost every
country in the world and dominating the majority of international declarations
and covenants adopted since World War II (in large measure due to the brutal denial of
the fundamentals of civic belonging and democratic inclusion during the Nazi era), this
essentially Western liberal conception of human rights is sometimes romanticized as a
triumph of the individualism of Hobbes and Locke over Hegel’s glorification of the state.
Égalité: economic, social, and cultural rights
The second generation, composed of economic, social, and cultural rights, originated
primarily in the socialist tradition, which was foreshadowed among adherents of
the Saint-Simonian movement of early 19th-century France and variously promoted by
revolutionary struggles and welfare movements that have taken place since. In large
part, it is a response to the abuses of capitalist development and its underlying and
essentially uncritical conception of individual liberty, which tolerated, and even
legitimized, the exploitation of working classes and colonial peoples. Historically,
economic, social, and cultural rights are a counterpoint to the first generation, civil and
political rights, and are conceived more in positive terms (“rights to”) than in negative
ones (“freedoms from”); they also require more the intervention than the abstention of
the state for the purpose of assuring the equitable production and distribution of the
values or capabilities involved. Illustrative are some of the rights set forth in Articles 22–
27 of the Universal Declaration of Human Rights, such as the right to social security; the
right to work and to protection against unemployment; the right to rest and leisure,
including periodic holidays with pay; the right to a standard of living adequate for the
health and well-being of self and family; the right to education; and the right to the
protection of one’s scientific, literary, and artistic production.

But in the same way that not all the rights embraced by the first generation (civil and
political rights) can be designated as “negative rights,” so not all the rights embraced by
the second generation (economic, social, and cultural rights) can be labeled as “positive
rights.” For example, the right to free choice of employment, the right to form and to
join trade unions, and the right to participate freely in the cultural life of
the community (Articles 23 and 27) do not inherently require affirmative state action to
ensure their enjoyment. Nevertheless, most of the second-generation rights do
necessitate state intervention, because they subsume demands more for material than for
intangible goods according to some criterion of distributive justice. Second-generation
rights are, fundamentally, claims to social equality. However, in part because of the
comparatively late arrival of socialist-communist and compatible “Third World” influence
in international affairs, but more recently because of the ascendency of laissez-faire
capitalism and the globalization of neoliberal, free-market economics since the end of
the Cold War, the internationalization of these “equality rights” has been relatively slow
in coming and is unlikely to truly come of age any time soon. On the other hand, as the
social inequities created by unregulated national and transnational capitalism become
more and more evident over time and are not directly accounted for by explanations
based on gender or race, it is probable that the demand for second-generation rights will
grow and mature, and in some instances even lead to violence. Indeed, this tendency was
apparent already at the beginning of the 2010s, most notably in the widespread protests
against austerity measures in Europe as the euro-zone debt crisis unfolded and in wider
efforts (including social movements such as the “Occupy” movement) to regulate
intergovernmental financial institutions and transnational corporations to protect the
public interest.

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ethics: Rights theories

Fraternité: solidarity or group rights

Finally, the third generation, composed of solidarity or group rights, while drawing upon
and reconceptualizing the demands associated with the first two generations of rights, is
best understood as a product of both the rise and the decline of the state since the mid-
20th century. Foreshadowed in Article 28 of the Universal Declaration of Human Rights,
which proclaims that “everyone is entitled to a social and international order in which the
rights set forth in this declaration can be fully realized,” this generation appears so far to
embrace six claimed rights (although events of the early 21st century arguably suggest
that a seventh claimed right—a right to democracy—may be in the process of emerging).
Three of the claimed rights reflect the emergence of nationalism in the developing world
in the 1960s and ’70s and the “revolution of rising expectations” (i.e., its demand for a
global redistribution of power, wealth, and other important values or capabilities): the
right to political, economic, social, and cultural self-determination; the right to economic
and social development; and the right to participate in and benefit from “the common
heritage of mankind” (shared Earth and space resources; scientific, technical, and other
information and progress; and cultural traditions, sites, and monuments). The three
remaining claimed solidarity or group rights—the right to peace, the right to a clean and
healthy environment, and the right to humanitarian disaster relief—suggest the
impotence or inefficiency of the state in certain critical respects.
All of these claimed rights tend to be posed as collective rights, requiring the concerted
efforts of all social forces, to a substantial degree on a planetary scale. However, each of
them also manifests an individual dimension. For example, while it may be said to be the
collective right of all countries and peoples (especially developing countries and non-self-
governing peoples) to secure a “new international economic order” that would eliminate
obstacles to their economic and social development, so also may it be said to be the
individual right of every person to benefit from a developmental policy that is based on
the satisfaction of material and nonmaterial human needs. It is important to note, too,
that the majority of these solidarity rights are more aspirational than justiciable in
character and that their status as international human rights norms remains
somewhat ambiguous.

Thus, at various stages of modern history, the content of human rights has been broadly
defined, not with any expectation that the rights associated with one generation would or
should become outdated upon the ascendancy of another, but expansively or
supplementally. The history of the content of human rights reflects evolving and
conflicting perceptions of which values or capabilities stand, at different times and
through differing lenses, most in need of responsible attention and, simultaneously,
humankind’s recurring demands for continuity and stability. Such dynamics are reflected,
for example, in a rising consensus that human rights extend to the private as well as to
the public sector—i.e., that non-state as well as state actors must account for their
violations of human rights. Similarly reflecting the continuing pressure for human rights
evolution is a current suggestion that there exists a “fourth generation” of human rights
consisting of women’s and intergenerational rights (i.e., the rights of future generations,
including existing children) among others.
Legitimacy and priority
Liberté versus égalité
The fact that the content of human rights has been broadly defined should not be taken to
imply that the three generations of rights are equally accepted by everyone. Nor should
broad acceptance of the idea of human rights suggest that their generations or their
separate elements have been greeted with equal urgency. The ongoing debate about the
nature and content of human rights reflects, after all, a struggle for power and for
favoured conceptions of the “good society.”

First-generation proponents, for example, are inclined to exclude second- and third-
generation rights from their definition of human rights altogether or, at best, to regard
them as “derivative.” In part this is because of the complexities involved in putting these
rights into operation. The suggestion that first-generation rights are more feasible than
other generations because they stress the absence over the presence of government is
somehow transformed into a prerequisite of a comprehensive definition of human rights,
such that aspirational claims to entitlement are deemed not to be rights at all. The most-
compelling explanation for such exclusions, however, has more to do with ideology or
politics than with operational concerns. Persuaded that egalitarian claims against the
rich, particularly where collectively espoused, are unworkable without a severe decline
in liberty, first-generation proponents, inspired by the natural law and laissez-faire
traditions, are committed to the view that human rights are inherently independent of
organized society and are necessarily individualistic.

Conversely, second- and third-generation defenders often look upon first-generation

rights, at least as commonly practiced, as insufficiently attentive to material—especially
“basic”—human needs and, indeed, as being instruments in service to unjust social
orders, hence constituting a “bourgeois illusion.” Accordingly, if they do not place first-
generation rights outside their definition of human rights, these partisans tend to assign
such rights a low status and to treat them as long-term goals that will come to pass only
after the imperatives of economic and social development have been met, to be realized
gradually and fully achieved only sometime vaguely in the future.

This liberty-equality and individualist-collectivist debate was especially evident during

the period of the Cold War, reflecting the extreme tensions that then existed between
liberal and Hegelian-Marxist conceptions of sovereign public order. Although
Western social democrats during this period, particularly in Scandinavia, occupied a
position midway between the two sides, pursuing both liberty and equality—in many
respects successfully—it remains true that the different conceptions of rights contain the
potential for challenging the legitimacy and supremacy not only of one another but, more
importantly, of the sociopolitical systems with which they are most intimately associated.
The relevance of custom and tradition: the
universalist-relativist debate
With the end of the Cold War, however, the debate took on a more North-South character
and was supplemented and intensified by a cultural-relativist critique that eschewed the
universality of human rights doctrines, principles, and rules on the grounds that they are
Western in origin and therefore of limited relevance in non-Western settings. The
viewpoint underlying this assertion—that the scope of human rights in any given society
should be determined fundamentally by local, national, or regional customs and
traditions—may seem problematic, especially when one considers that the idea of human
rights and many of its precepts are found in all the great philosophical and religious
traditions. Nevertheless, the historical development of human rights demonstrates that
the relativist critique cannot be wholly or axiomatically dismissed. Nor is it surprising
that it should emerge soon after the end of the Cold War. First prominently expressed in
the declaration that emerged from the Bangkok meeting held in preparation to the
second UN World Conference on Human Rights convened in Vienna in June 1993 (which
qualified a reaffirmation of the universality of human rights by stating that human rights
“must be considered in the context of…national and regional particularities and various
historical, cultural and religious backgrounds”), the relativist critique reflects the end of
a bipolar system of alliances that had discouraged independent foreign policies and
minimized cultural and political differences in favour of undivided Cold War loyalties.

Against the backdrop of increasing human rights interventionism on the part of the UN
and by regional organizations and deputized coalitions of states (as in Bosnia and
Herzegovina, Somalia, Liberia, Rwanda, Haiti, Serbia and Kosovo, Libya, and Mali, for
example), the relativist viewpoint serves also as a functional equivalent of the doctrine of
respect for national sovereignty and territorial integrity, which had been declining in
influence not only in the human rights context but also in the contexts of national
security, economics, and the environment. As a consequence, there remains sharp
political and theoretical disagreement about the legitimate scope of human rights and
about the priorities that are claimed among them.
Inherent risks in the debate
On final analysis, however, this legitimacy-priority debate can be dangerously misleading.
Although useful for pointing out how notions of liberty and individualism have been used
to rationalize the abuses of capitalism and Western expansionism and for exposing the
ways in which notions of equality, collectivism, and culture have been alibis
for authoritarian governance, in the end the debate risks obscuring at least three
essential truths that must be taken into account if the contemporary worldwide human
rights movement is to be understood objectively.

First, one-sided characterizations of legitimacy and priority are very likely, at least over
the long term, to undermine the political credibility of their proponents and the
defensibility of the rights they regard as preeminently important. In an increasingly
interdependent global community, any human rights orientation that does not support
the widest possible shaping and sharing of values or capabilities among all human beings
is likely to provoke widespread skepticism. The period since the mid-20th century is
replete with examples, among them the official U.S. position that only civil and political
rights—including the rights to own property and to invest in processes of production and
exchange—can be deemed legally recognizable rights.

Second, such characterizations do not accurately reflect reality. In the real world,
virtually all societies, whether individualistic or collectivist in essential character, at least
consent to, and most even promote, a mixture of all basic values or capabilities. U.S.
President Franklin Delano Roosevelt’s Four Freedoms (freedom of speech and
expression, freedom of worship, freedom from want, and freedom from fear) is an early
case in point. A later demonstration is found in the Vienna Declaration and Programme of
Action of the 1993 conference mentioned above, adopted by representatives of 171
states. It proclaims that

[W]hile the significance of national and regional particularities and various historical, cultural and
religious backgrounds must be borne in mind, it is the duty of States, regardless of their political,
economic and cultural systems, to promote and protect all human rights and fundamental
freedoms.

Finally, in the early 21st century, none of the international human rights instruments in
force or proposed said anything about the legitimacy or priority of the rights it addresses,
save possibly in the case of rights that by international covenant are stipulated to be
“nonderogable” and therefore, arguably, more fundamental than others (e.g., freedom
from arbitrary or unlawful deprivation of life, freedom from torture and from inhuman or
degrading treatment and punishment, freedom from slavery, and freedom from
imprisonment for debt). To be sure, some disagreements about legitimacy and priority
can derive from differences of definition (e.g., what is “torture” or “inhuman treatment”
to one may not be so to another, as in the case of punishment by caning
or waterboarding or by death). Similarly, disagreements can arise also when treating the
problem of implementation. For instance, some insist first on certain civil and political
guarantees, whereas others defer initially to conditions of material well-being. Such
disagreements, however, reflect differences in political agendas and have little if
any conceptual utility. As confirmed by numerous resolutions of the UN General
Assembly and reaffirmed in the Vienna Declaration and Programme of Action, there is a
wide consensus that all human rights form an indivisible whole and that the protection of
human rights is not and should not be a matter of purely national jurisdiction. The extent
to which the international community actually protects the human rights it prescribes is,
on the other hand, a different matter.
International human rights: prescription and enforcement
Developments before World War II
Ever since ancient times, but especially since the emergence of the modern state system,
the Age of Discovery, and the accompanying spread of industrialization and
European culture throughout the world, there has developed, for economic and other
reasons, a unique set of customs and conventions regarding the humane treatment of
foreigners. This evolving International Law of State Responsibility for Injuries to Aliens,
as these customs and conventions came to be called, represents the beginning of active
concern—however much they served the interests of colonial expansion—for human
rights on the international plane. The founding fathers of international law—
particularly Francisco de Vitoria, Grotius, and Emmerich de Vattel—were quick to
observe that all persons, outlander as well as the Other, were entitled to certain natural
rights, and they emphasized, consequently, the importance of according aliens
fair treatment.

With the exception of occasional treaties to secure the protection

of Christian denominations, it was not until the start of the 19th century, however, that
active international concern for the rights of nationals began to make itself felt. Then, in
the century and a half before World War II, several noteworthy efforts to encourage
respect for nationals by international means began to shape what today is called the
International Law of Human Rights (which for historical but no theoretically convincing
reasons was treated separately from the International Law of State Responsibility for
Injuries to Aliens).

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

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

Finally, during the interwar period, the covenant establishing the League of
Nations (1919)—though not formally recognizing “the rights of Man” and failing to lay
down a principle of racial nondiscrimination as requested by Japan (mainly because of
the resistance of Great Britain and the United States)—nevertheless committed its
members to several human rights goals: fair and humane working conditions, the
execution of agreements regarding trafficking of women and children, the prevention and
control of disease in matters of international concern, and the just treatment
of indigenous colonial peoples. Also, the victorious powers—who as “mandatories” were
entrusted by the League of Nations with the tutelage of colonies formerly governed by
Germany and Turkey—accepted responsibility for the well-being and development of the
inhabitants of those territories as “a sacred trust of civilization.” This arrangement was
later carried over into the trusteeship system of the United Nations.

As important as these efforts were, however, it was not until after the war—and the Nazi
atrocities accompanying it—that active concern for human rights truly came of age
internationally. In the proceedings of the International Military Tribunal at Nürnberg in
1945–46 (the Nürnberg trials), German high officials were tried not only for “crimes
against peace” and “war crimes” but also for “crimes against humanity” committed
against civilian populations, even if the crimes were in accordance with the laws of the
country in which they were perpetrated. Although the tribunal, whose establishment and
rulings subsequently were endorsed by the UN General Assembly, applied a cautious
approach to allegations of crimes against humanity, it nonetheless made the treatment by
a state of its own citizens the subject of international criminal process. The ad hoc
international criminal tribunals established in 1993–94 for the prosecution of serious
violations of International Humanitarian Law in the former Yugoslavia and in Rwanda
were its first heirs on the international plane. Both courts were empowered to impose
sentences of life imprisonment (though not the death penalty), and both focused their
efforts, with some success, on political leaders who had authorized human rights abuses.
Most conspicuous was the arrest and detention in June 2001 of former Yugoslav
president Slobodan Miloševic by the International Criminal Tribunal for Yugoslavia,
representing the first time a former head of state was placed in the physical custody of an
international judicial authority. The tribunal charged him with war crimes and crimes
against humanity allegedly committed by Serbian forces in Kosovo in 1999 and
subsequently with the crime of genocide allegedly committed by Serbian forces during
the war in Bosnia and Herzegovina in 1992–95. His trial ended with his death in March
2006.

Also heir to the Nürnberg tribunal is the International Criminal Court (ICC), authorized
by the adoption by 120 countries of the Rome Statute of the International Criminal Court
in July 1998. The statute created an independent, permanent international criminal court
with legal personality separate from the United Nations and
whose substantive jurisdiction includes crimes against humanity, crimes of genocide, war
crimes, and crimes of “aggression” (pending the adoption of an acceptable definition of
that term). However, the creation of the court, which depended on the ratification of the
statute by at least 60 signatory states, was resisted by some countries, notably the United
States, on the ground that it would unduly infringe upon their national sovereignty.
Indeed, during the administration of President George W. Bush (2001–09), the United
States not only refused to ratify the statute but also took the unusual step of withdrawing
its signature from it. Given the sway of the United States in world affairs, this rendered
the long-term future of the court uncertain. Despite some initial operational problems
and uneven support from states party to the Rome Statute, the ICC subsequently made
notable progress in prosecuting perpetrators of the world’s most heinous crimes and
thus bolstered its near-term future.
Human rights in the United Nations
The United Nations, founded in 1945 after World War II and the Holocaust, was created
principally to maintain international peace and security and to encourage and promote
respect for human rights and fundamental freedoms. The Charter of the United Nations
confirms these two purposes and begins its recognition of the second by reaffirming a

Faith in fundamental human rights, in the dignity and worth of the human person, in the equal
rights of men and women and of nations large and small.

It states that the purposes of the UN are, among other things:

To develop friendly relations among nations based on respect for the principle of equal rights and
self-determination of peoples…[and] to achieve international co-operation…in promoting and
encouraging respect for human rights and for fundamental freedoms for all without distinction as
to race, sex, language, or religion.
In addition, in two key articles, “all members pledge themselves to take joint and
separate action in co-operation with the Organization for the achievement of” these and
related purposes.

It must be noted, however, that a proposal to ensure the protection (i.e., enforcement) of
human rights as distinct from their promotion (i.e., advocacy) was explicitly rejected at
the Charter-drafting San Francisco conference establishing the UN. Accordingly, while
providing for the UN Security Council to enforce the UN’s first primary purpose
(maintaining international peace and security), the drafters did not specify a comparable
body to give teeth to its second primary purpose (promoting human rights and
fundamental freedoms). Also, the Charter expressly provides that nothing in it “shall
authorize the United Nations to intervene in matters which are essentially within the
domestic jurisdiction of any state,” except upon a Security Council finding of a “threat to
the peace, breach of the peace, or act of aggression.” Furthermore, though typical of
major constitutive instruments, the Charter is conspicuously given to generality and
vagueness in its human rights clauses, among others.

Thus, not surprisingly, the reconciliation of the Charter’s human rights provisions with
the history of its drafting and its “domestic jurisdiction” clause has given rise to legal and
political controversy. Some authorities have argued that, in becoming parties to the
Charter, states accept no more than a nebulous promotional obligation toward human
rights and that, in any event, the UN has no standing to insist on human rights
safeguards in member states. Others have insisted that the Charter’s human rights
provisions, being part of a legally binding treaty, clearly involve some element of legal
obligation; that the “pledge” made by states upon becoming party to the Charter
consequently represents more than a moral statement; and that the domestic jurisdiction
clause does not apply, because human rights can be considered no longer a matter
“essentially within the domestic jurisdiction” of states.

When all is said and done, however, it is clear from the actual practice of the UN that the
problem of resolving these opposing contentions has proved less formidable than the
statements of governments and the opinions of scholars would suggest. Neither the
Charter’s drafting history nor its domestic jurisdiction clause—nor, indeed, its generality
and vagueness in respect of human rights—has prevented the UN from investigating,
discussing, and evaluating specific human rights situations. Nor have they prevented it
from taking concrete action in relation to them—at least not in the case of “a consistent
pattern of gross violations,” as in the Security Council’s imposition of a mandatory arms
embargo against South Africa in 1977 and its authorization of the use of military force to
end human rights abuses in Somalia and Haiti in the early 1990s.

In 2003 the Security Council intervened in a civil war in Côte d’Ivoire by authorizing a
military peacekeeping force—an action that, with the help of the Economic Community of
West African States (ECOWAS), led ultimately to the ouster of an electorally defeated
presidential incumbent (Laurent Gbagbo) and the reestablishment of public order under
a newly elected president (Alassane Ouattara). Additionally, during the Libya Revolt of
2011, a civil war fought between forces loyal to Colonel Muammar al-Qaddafi and those
seeking to oust his government, the Security Council authorized UN member states to
establish and enforce a no-fly zone over Libya and to use “all necessary measures” to
prevent attacks on civilians.

In 2005 the member states of the United Nations recognized the principle of the
“responsibility to protect” (often called R2P). Under this principle, states have a
responsibility to protect their civilian populations against genocide and other mass
human rights atrocities. If they fail to do so, according to the R2P principle, states forfeit
their sovereign immunity, and the international community is responsible for using
appropriate diplomatic, humanitarian, and other means to protect the populations being
victimized—and to this end, in accordance with the UN Charter, to be prepared to
take collective action in their defense.

The R2P principle was controversial because it contradicted the long-established

principle of state sovereignty. It was invoked by the UN Security Council to authorize
military interventions in a second civil war in Côte d’Ivoire (2010), in Libya (2011), and in
other countries. However, in 2013 the international community’s resistance to U.S. plans
to launch missile strikes against Syria in retaliation for that country’s alledged use of
internationally prohibited chemical weapons against its own population added significant
doubt to the already controversial assertion that the R2P principle, however warranted
morally, is a legally binding principle.

Of course, governments usually are protective of their sovereignty, or domestic

jurisdiction. Also, the UN organs responsible for the promotion and protection of human
rights suffer from most of the same disabilities that afflict the UN as a whole, in
particular, the absence of supranational authority, the presence of divisive power politics,
and the imposition of crippling financial constraints by member states (most notably the
United States). Hence, it cannot be expected that UN actions in defense of human rights
will be, normally, either swift or categorically effective. Indeed, many serious UN efforts
at human rights implementation have been deliberately thwarted by the major powers. In
1999, for example, opposition by China and Russia prevented the Security Council from
agreeing on forceful measures to end ethnic cleansing by Yugoslav and Serbian forces
in Kosovo, prompting the United States and other members of the North Atlantic Treaty
Organization (NATO) to take matters into their own hands through a massive bombing
campaign against Serbian targets. Assuming some political will, however, the legal
obstacles to UN enforcement of human rights are not insurmountable.

From the beginning, four of the six principal organs of the United Nations (the General
Assembly, the Economic and Social Council [ECOSOC], the Trusteeship Council, and
the Secretariat) shared responsibility for the encouragement and promotion of human
rights—although, as the UN’s history bears witness, the Security Council and
the International Court of Justice (World Court) have been called into protective human
rights service in special circumstances from time to time. Primary responsibility for the
advancement of human rights under the UN Charter rests, however, in the General
Assembly (the UN’s main deliberative body) and, under its authority, in its Social,
Humanitarian and Cultural Affairs Committee (commonly referred to as the “Third
Committee”), the Human Rights Council (which replaced the former Commission on
Human Rights in 2006), and the UN High Commissioner for Human Rights. ECOSOC’s
responsibility for human rights (though diminished when the former Commission on
Human Rights under its authority was replaced by the Human Rights Council under the
jurisdiction of the General Assembly) extends to several other commissions, such as the
Commission on the Status of Women, the Commission for Social Development, and the
Commission on Crime Prevention and Criminal Justice, as well as UN specialized
agencies such as the International Labor Organization and the World Health
Organization. The Trusteeship Council suspended operations in November 1994 following
the independence of Palau, the last remaining UN trust territory. The
Secretariat facilitates and administers many human rights policies and programs by
virtue of its multifaceted day-to-day work on behalf of the United Nations as a whole,
including working closely with each of the UN’s principal organs.
The UN Commission on Human Rights (1946–2006) and the
UN Human Rights Council
The UN Commission on Human Rights and its
instruments
Between 1946 and 2006 the UN Commission on Human Rights, created as a subsidiary
body of ECOSOC, served as the UN’s central policy organ in the human rights field. For
the first 20 years of its existence, however, the commission believed itself to be
unauthorized to deal with human rights complaints. During its first two decades,
therefore, and together with other UN bodies such as the ILO, UNESCO (the United
Nations Educational, Scientific and Cultural Organization), the UN Commission on the
Status of Women, and the Commission on Human Rights Crime Prevention and
Criminal Justice, it concentrated on setting human rights standards and drafting a
number of historically vital international human rights instruments. Among the most
important of these were the Universal Declaration of Human Rights, the
International Covenant on Economic, Social and Cultural Rights, and the International
Covenant on Civil and Political Rights and its two Optional Protocols (1966 and 1989).
Together, these three instruments and the Optional Protocols constitute what has come
to be known as the International Bill of Human Rights, serving as touchstones for
interpreting the human rights provisions of the UN Charter. Also central in this regard
were the International Convention on the Elimination of All Forms of
Racial Discrimination (1965), the Convention on the Elimination of All Forms of
Discrimination Against Women (1979), the Convention Against Torture and Other Cruel,
Inhuman or Degrading Treatment or Punishment (1984), and the Convention on the
Rights of the Child (1989), each of which elaborated on provisions of the International
Bill of Human Rights.

Beginning in 1967, the commission was explicitly authorized to deal with violations of
human rights, and shortly thereafter it set up elaborate mechanisms and procedures to
investigate alleged human rights violations and otherwise monitor compliance by states
with international human rights law. Thus, much of the work of the commission became
investigatory, evaluative, and advisory in character. Each year it established a working
group to consider and make recommendations concerning alleged “gross violations” of
human rights, reports of which were referred to the commission by its Sub-Commission
on Prevention of Discrimination and Protection of Minorities—later known as the Sub-
Commission on the Promotion and Protection of Human Rights—on the basis of both
“communications” from individuals and groups and investigations by the subcommission
or one of its working groups. Also, on an ad hoc basis, the commission appointed special
rapporteurs, special representatives, special committees, and other envoys to examine
human rights situations—both country-oriented and thematic—and to report back to it on
the basis of trustworthy evidence. These fact-finding and implementation mechanisms
and procedures were the focus of the commission’s attention during the 1970s and ’80s.
In the 1990s the commission turned increasingly to economic, social, and cultural rights,
including the right to development and the right to an adequate standard of living.
Increased attention was paid also to the rights of minorities, indigenous peoples, women,
and children. (See also Sidebar: Children and Human Rights.)

In the early 21st century the Commission on Human Rights came to be viewed as
ineffective, in part because its membership included countries with poor human rights
records. It therefore was replaced by the UN Human Rights Council in 2006.
The UN Human Rights Council and its
instruments
The UN Human Rights Council was created as a subsidiary intergovernmental body of
the UN General Assembly and initially comprised nearly 50 UN member states. The
council was charged with strengthening the promotion and protection of human rights
worldwide. To this end, it was mandated to address and make recommendations
regarding human rights violations wherever found and to discuss all human rights issues
and situations that require its attention throughout the year, including, but not limited
to, violence against women and children, sexual violence in conflict, genocide, the human
rights of indigenous peoples and the disabled, child soldiers, and human trafficking.

One year after its founding, the council adopted an “institution-building package” to
guide its work and to establish its mechanisms and procedures. Among them were:
the universal periodic review mechanism, by which the council assesses the human rights
records of every UN member state, including members of the council itself during their
terms of membership; the Advisory Committee, the council’s “think tank” for advice
on thematic human rights issues, superceding the Subcommission on the Promotion and
Promotion of Human Rights, established under the former UN Commission on Human
Rights; and the complaint procedure, giving standing to individuals and civil-society
organizations to bring human rights violations to the council’s attention.

Like its predecessor, the council also works with special rapporteurs, special
representatives, independent experts, and working groups that monitor, examine, advise,
and report publicly on human rights issues and on particular human rights situations in
specific countries.
Office of the UN High Commissioner for Human
Rights
The Office of the High Commissioner for Human Rights (OHCHR), established by the UN
General Assembly in 1993, is the UN bureau mandated to promote and protect human
rights guaranteed under international law. To this end, it focuses on standard setting,
monitoring, and implementation and serves as a secretariat providing administrative,
logistical, and substantive support to the Human Rights Council and other UN bodies
concerned with human rights. It was consolidated with the former UN Centre for Human
Rights in 1997.

The UN High Commissioner for Human Rights is the official within the OHCHR
principally responsible for implementing and coordinating UN human rights programs
and projects around the world. Appointed by the secretary-general in a regular rotation
of geographic regions and approved by the General Assembly, the UN high commissioner
serves a fixed term of four years with the possibility of renewal for an additional four-year
term. The first high commissioner, José Ayala Lasso of Ecuador, held office from 1994 to
1997. He was succeeded by the former president of Ireland, Mary Robinson (1997–2002);
the Brazilian diplomat Sergio Vieira de Mello (2002–03), who was tragically killed by
terrorists; the former deputy high commissioner for human rights and assistant
secretary-general Bertrand Ramcharan (interim 2003–04); the Canadian judge Louise
Arbour (2004–08); and the South African jurist Navanethem Pillay, whose four-
year mandate (beginning in 2008) was renewed for two years in 2012.

Among other duties, the high commissioner is charged by the General Assembly to
promote and protect all civil, political, economic, social, and cultural rights; to provide
advisory services and technical and financial assistance in the field of human rights to
states that request them; to coordinate human rights promotion and protection activities
throughout the UN system, including education and public-information programs; and
otherwise to enhance international cooperation for the promotion and protection of
human rights—all within the framework of the International Bill of Human Rights. The
office of the high commissioner for human rights won increasing praise and support for
the work it has done over the years, and many observers ascribed these successes to the
high calibre of its successive high commissioners.
The Universal Declaration of Human Rights
The Universal Declaration of Human Rights (UDHR) was adopted without dissent by the
UN General Assembly on December 10, 1948. The catalogue of rights set out in it is
scarcely less than the sum of most of the important traditional political and civil rights of
national constitutions and legal systems, including equality before the law; protection
against arbitrary arrest; the right to a fair trial; freedom from ex post facto criminal laws;
the right to own property; freedom of thought, conscience, and religion; freedom
of opinion and expression; and freedom of peaceful assembly and association. Also
enumerated are such economic, social, and cultural rights as the right to work, the right
to form and join trade unions, the right to rest and leisure, the right to a standard of
living adequate for health and well-being, and the right to education.

The UDHR, it should be noted, is not a treaty. It was meant to proclaim “a common
standard of achievement for all peoples and all nations” rather than enforceable legal
obligations. Nevertheless, a number of its provisions have acquired a status juridically
more important than originally intended, a reflection of its wide use, even by national
courts, as a means of judging compliance with human rights obligations under the UN
Charter. It is also one of the instruments constituting the International Bill of Human
Rights.
The International Covenant on Economic, Social
and Cultural Rights
The International Covenant on Economic, Social and Cultural Rights (ICESCR) was
opened for signature on December 16, 1966, and entered into force on January 3, 1976.
Also part of the International Bill of Human Rights, it elaborates upon most of the
economic, social, and cultural rights set forth in the Universal Declaration of Human
Rights, including, among others, the right to work, the right to form and join trade
unions, the right to health, and the right to education. Unlike its companion agreement,
the International Covenant on Civil and Political Rights, however, generally this
covenant, sometimes called a “promotional convention,” was not intended for immediate
implementation, the state parties having agreed only “to take steps” toward “achieving
progressively the full realization of the rights recognized in the…Covenant,” and then
subject to “the maximum of [their] available resources.” One obligation, however, was
subject to immediate application: the prohibition of discrimination in the enjoyment of
the rights enumerated on grounds of race, colour, sex, language, religion, political or
other opinion, national or social origin, property, and birth or other status. Also, the
international supervisory measures that apply to the ICESCR oblige the state parties to
report to the UN Economic and Social Council on the steps they have adopted and on the
progress they have made in achieving the realization of the enumerated rights. In 2008
the adoption of an Optional Protocol led to the creation of an individual-complaints
mechanism for the ICESCR—the Committee on Economic, Social and Cultural Rights—
which was comparable to the Human Rights Committee of the International Covenant on
Civil and Political Rights..
The International Covenant on Civil and Political
Rights and Its Optional Protocols
The International Covenant on Civil and Political Rights (ICCPR), likewise a part of the
International Bill of Human Rights, was opened for signature on December 19, 1966, and
entered into force on March 23, 1976. Just as the International Covenant on Economic,
Social and Cultural Rights elaborates upon most of the economic social, and cultural
rights enumerated in the Universal Declaration of Human Rights, so the ICCPR
elaborates upon most of the civil and political rights set forth in the Universal Declaration
of Human Rights, including the right to nondiscrimination but excluding the right to own
property and the right to asylum. The covenant also designates several rights not listed in
the Universal Declaration of Human Rights, among them the right of all peoples to self-
determination and the right of ethnic, religious, and linguistic minorities to enjoy their
own culture, to profess and practice their own religion, and to use their own language. To
the extent that the Universal Declaration of Human Rights and the covenant overlap,
however, the latter is understood to explicate and help interpret the former.

In addition, the covenant calls for the establishment of a Human Rights

Committee, comprising persons serving in their individual expert capacities, to study
reports submitted by the state parties on measures they have adopted to give effect to
the rights recognized in the covenant. For state parties that have expressly recognized
the competence of the committee in this regard, the committee also may respond to
allegations by one state party that another state party is not fulfilling its obligations
under the covenant. If the committee is unable to resolve the problem, the matter is
referred to an ad hoc conciliation commission, which eventually reports its findings on all
questions of fact, plus its views on the possibilities of an amicable solution. State parties
that become party to the covenant’s First Optional Protocol further recognize the
competence of the Human Rights Committee to consider and act upon communications
from individuals claiming to be victims of covenant violations, provided that the
respondent state has recognized the competence of the committee in this regard and that
domestic remedies have been exhausted—emulating the legal standing given to
individuals before the UN Commission on Human Rights after 1967.

Other treaty-based organs within the UN system that are similarly empowered to
consider grievances from individuals in a quasi-judicial manner are the Committee on
Economic, Social and Cultural Rights, the Committee on the Elimination of
Racial Discrimination, the Committee on Torture, the Committee on the Elimination of
Discrimination against Women, the Committee on the Rights of Persons with Disabilities,
and the Committee on Enforced Disappearances. Additionally, the 1990 International
Convention on the Protection of the Rights of All Migrant Workers and Members of their
Families and the Optional Protocol to the Convention on the Rights of the Child contain
provisions for individual complaints that are not yet operational.

The Second Optional Protocol of the International Covenant on Civil and Political Rights,
which is aimed at abolishing the death penalty worldwide, was adopted in 1989 and
entered into force in 1991. The protocol has been favourably received in most of the
countries of western Europe and in many countries in the Americas, though not in
the United States.
Other UN human rights conventions and
declarations
Numerous other human rights treaties drafted under UN auspices address a broad range
of concerns. Supplementing the ICCPR and ICESCR considered above, the Office of the
High Commissioner for Human Rights lists several other “core international human
rights instruments,” including the 1965 International Convention on the Elimination of All
Forms of Racial Discrimination; the 1979 Convention on the Elimination of All Forms of
Discrimination against Women; the 2002 Optional Protocol of the 1984 Convention
against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment; and
the 2006 Convention on the Rights of Persons with Disabilities. The OHCHR also details a
non-exhaustive list of “other universal instruments relating to human rights” (although
including the core instruments just noted). The list is nonetheless long and diverse and
embraces declarations, principles, guidelines, standard rules, and recommendations
which, according to the OHCHR, “have no binding legal effect,” as well as covenants,
statutes, protocols, and conventions that, it asserts, “are legally-binding.” The wide scope
of topical categories includes the right of self-determination, the rights
of indigenous peoples and minorities, social welfare, and humanitarian law (i.e., the
humanitarian rules of armed conflict).
Thus, across a wide range of issues and themes and in addition to overseeing human
rights treaties deemed legally binding in theory, the UN has adopted human rights
instruments that are presumptively not legally binding, as is, in contrast, a treaty or a
resolution of the Security Council. Such instruments—particularly when they enunciate
principles of great and solemn importance—may nevertheless create strong expectations
about authority and control. Perhaps the best-known examples subsequent to the
Universal Declaration of Human Rights are the Declaration on the Granting of
Independence to Colonial Countries and Peoples (1960) and the Declaration on Principles
of International Law Concerning Friendly Relations and Co-operation among States in
Accordance with the Charter of the United Nations (1970) which affirms, among other
things, “the duty of all states to refrain from organizing, instigating, assisting or
participating in…terrorist acts.”
Human rights and the Helsinki process
After World War II, international concern for human rights was evident at the global level
outside the UN as well as within it, most notably in the proceedings and aftermath of
the Conference on Security and Co-operation in Europe (CSCE), convened in
Helsinki, Finland, on July 3, 1973, and concluded there (after continuing deliberations in
Geneva) on August 1, 1975. Attended by representatives of 35 governments—including
the NATO countries, the Warsaw Pact nations, and 13 neutral and nonaligned European
states—the conference had as its principal purpose a mutually satisfactory definition of
peace and stability between East and West, previously made impossible by the Cold War.
In particular, the Soviet Union wished to gain recognition of its western frontiers as
established at the end of World War II (which ended without the conclusion of an
omnibus peace treaty). The West, with no realistic territorial claims of its own,
sought concessions primarily on security requirements and human rights, largely in that
order.

The Final Act of the conference, also known as the Helsinki Accords, begins with a
Declaration on Principles Guiding Relations between Participating States, in which the
participating states solemnly declare “their determination to respect and put into
practice,” alongside other “guiding” principles, “respect [for] human rights and
fundamental freedoms, including the freedom of thought, conscience, religion or belief”
and “respect [for] the equal rights of peoples and their right to self-determination.” It
was hoped that this declaration, the importance of which is reflected in its having been
signed by almost all of the principal governmental leaders of the day, would mark the
beginning of a liberalization of authoritarian regimes.

From the earliest discussions, however, it was clear that the Helsinki Final Act was not
intended as a legally binding instrument. The expressions “determination to respect” and
“put into practice” were seen to represent moral commitments only, the Declaration of
Principles was said not to prescribe international law, and nowhere did the participants
provide for enforcement machinery. On the other hand, the Declaration of Principles,
including its human rights principles, was always viewed as being at least consistent with
international law; and, in providing for periodic follow-up conferences, it made possible a
unique negotiating process (the “Helsinki process”) to review compliance with its terms,
thus creating normative expectations concerning the conduct of the participating states.
In these ways, the declaration, ergo the Helsinki Final Act, proved to be an important
force in the fall of the Iron Curtain and the transformation of eastern Europe in 1989–90.

The Helsinki process, involving long-running “follow-up,” “summit,” and other meetings,
served also to establish a mechanism for the evolution of the CSCE from a forum for
discussion to an operational institution, beginning with the adoption of the Charter of
Paris for a New Europe in 1990. In 1994 the CSCE was renamed the Organization for
Security and Co-operation in Europe, and its principal organs and bureaus eventually
included an Office for Democratic Institutions and Human Rights (in Warsaw), a Conflict
Prevention Centre (in Vienna), a High Commissioner on National Minorities (in The
Hague), and a Court of Conciliation and Arbitration (in Geneva). These offices were
increasingly pressed into service to alleviate major deprivations of human rights,
particularly those arising from ethnic conflicts. In addition, the Vienna Human Dimension
Mechanism and the Moscow Human Dimension Mechanism provide a preliminary formal
means of raising and seeking to resolve disputes about violations of human rights
commitments, including the possibility of on-site investigation by independent experts.
All these mechanisms bespeak, however, an essentially interstate process; neither
individuals nor nongovernmental organizations (NGOs) have access to them except
indirectly as suppliers of information and conveyors of political pressure. They thus
contrast markedly with the individual-complaint procedures that are available within the
UN system and in regional human rights systems.
Regional human rights systems and
developments
Action for the international promotion and protection of human rights has proceeded at
the regional level in Europe, the Americas, Africa, Southeast Asia, and the Middle East.
By the first decade of the 21st century, however, only the first four of these regions had
created enforcement mechanisms within the framework of a human rights charter.
Human rights in Europe
On November 4, 1950, the Council of Europe agreed to the European Convention for the
Protection of Human Rights and Fundamental Freedoms, the substantive provisions of
which were based on a draft of what is now the International Covenant on Civil and
Political Rights. Together with its 11 additional protocols, this convention, which entered
into force on September 3, 1953, represents the most advanced and successful
international experiment in the field to date. Over the years, the enforcement
mechanisms created by the convention have developed a considerable body of case law
on questions regulated by the convention, which the state parties typically have honoured
and respected. In some European states the provisions of the convention are deemed to
be part of domestic constitutional or statutory law. Where this is not the case, the state
parties have taken other measures to make their domestic laws conform with their
obligations under the convention.

Notwithstanding these successes, a significant streamlining of the European human

rights regime took place on November 1, 1998, when Protocol No. 11 to the convention
entered into force. Pursuant to the protocol, two of the enforcement mechanisms created
by the convention—the European Commission of Human Rights and the European Court
of Human Rights—were merged into a reconstituted court, which now is empowered to
hear individual (as opposed to interstate) petitions or complaints without the prior
approval of the local government. The decisions of the court are final and binding on the
state parties to the convention.

A companion instrument to the European convention—similar to but preceding the

International Covenant on Economic, Social and Cultural Rights—is the European Social
Charter (1961) and its additional protocol (1988). In contrast to the adjudicatory
enforcement procedures of the European convention, the charter’s provisions
are implemented through an elaborate system of control based on progress reports to the
various committees and organs of the Council of Europe. The revised European Social
Charter, which was intended gradually to replace the 1961 charter and entered into force
in 1999, modernizes its forebear’s substantive provisions and strengthens its
enforcement capabilities. The basic rights set forth in the revised charter concern
housing; health; education, labour rights, employment, and parental leave; protection
from poverty and social exclusion; free movement of persons and nondiscrimination;
migrant worker rights; and nondiscrimination of persons with disabilities.
Human rights in the Americas
In 1948, concurrent with its establishment of the Organization of American States (OAS),
the Ninth Pan-American Conference adopted the American Declaration on the Rights and
Duties of Man, which, unlike the Universal Declaration of the UN adopted seven months
later, set out the duties as well as the rights of individual citizens. Subsequently, in 1959,
a meeting of the American Ministers for Foreign Affairs created the Inter-American
Commission on Human Rights, which has since undertaken important investigative
activities in the region. Finally, in 1969, the Inter-American Specialized Conference on
Human Rights adopted the American Convention on Human Rights, which, among other
things, after entering into force in July 1978, made the existing Inter-American
Commission an organ of the convention and established the Inter-American Court of
Human Rights, which sits in San José, Costa Rica. In November 1988, the OAS adopted
the Additional Protocol to the American Convention on Human Rights in the Area of
Economic, Social and Cultural Rights. Of the 26 Western Hemispheric states that so far
have signed the convention, only the United States has yet to ratify it. Nor is the United
States a party to the additional protocol, which entered into force in November 1999.

The core structure of the Inter-American human rights system is similar to that of its
European counterpart. Nevertheless, some noteworthy differences exist, and three stand
out in particular. First, the American convention, reflecting the influence of the American
Declaration, acknowledges the relationship between individual duties and individual
rights. Second, the American convention reverses the priorities of the European
convention prior to Protocol No. 11 by guaranteeing individual petitions while making
interstate complaints optional. Finally, both the Inter-American Commission on Human
Rights and the Inter-American Court of Human Rights operate beyond the framework of
the American convention. The commission is as much an organ of the OAS Charter as of
the American convention, with powers and procedures that differ significantly depending
on the source of the commission’s authority. The court, while primarily an organ of the
convention, nonetheless has jurisdiction to interpret the human rights provisions of other
treaties, including those of the OAS Charter.
Human rights in Africa
In 1981 the Eighteenth Assembly of Heads of State and Government of the Organization
of African Unity (replaced by the African Union [AU] in 2002) adopted the African
Charter on Human and Peoples’ Rights. Also known as the “Banjul Charter” for having
been drafted in Banjul, Gambia, it entered into force on October 21, 1986, and boasts
the vast majority of the states of Africa as parties.

Like its American and early European counterparts, the African charter provides for a
human rights commission (the African Commission on Human and Peoples’ Rights),
which has both promotional and protective functions. There is no restriction on who may
file a complaint with it. In contrast to the European and American procedures, however,
concerned states are encouraged to reach a friendly settlement without formally
involving the investigative or conciliatory mechanisms of the commission. Also, the
African charter did not, at the beginning, call for a human rights court. African customs
and traditions, it has been said, have long emphasized mediation, conciliation,
and consensus rather than the adversarial and adjudicative procedures that are common
to Western legal systems.

Nevertheless, owing largely to political changes wrought by the end of the Cold War, an
African Court of Human and Peoples’ Rights (ACHPR) was created in January 2004 to
render judgments on the compliance by AU states with the African charter. The court did
not replace the commission.
A year earlier, however, in 2003, there came into being the African Court of Justice (ACJ),
intended to serve as the AU’s principal judicial body and, in this capacity, to rule on
disputes over the interpretation of AU treaties. Concern for rising costs in the face of
little forward movement on the part of the ACJ, however, led to proposals for the creation
of a new court, the African Court of Justice and Human Rights (ACJHR). Designed to have
two chambers—one for general legal matters that would supersede the ACJ, the other for
judgments on the interpretation and application of human rights treaties—the ACJHR
came into being when, in 2008, a merger protocol was adopted uniting the ACJ and the
ACHPR. It was believed that the ACJHR had the potential to be progressively influential
in the protection of human rights in Africa. It was also recognized, however, that this
prospect—above all the ACJHR’s legitimacy—depended on the independence
and moral character of its judges and on the training and effectiveness of its staff.

It is, in any event, fair to say that the African human rights system was still in its infancy
at the beginning of the 21st century, given especially the turmoil and violence that beset
northern and sub-Saharan Africa during this time. But four distinctive features of the
African charter—and thus, the African human rights system—are noteworthy and give
reason for hope. First, the charter provides for economic, social, and cultural rights as
well as civil and political rights. In this respect it resembles the American convention and
differs from the European convention. Second, in contrast to both the European and
American conventions, it recognizes the rights of groups in addition to the family,
women, and children. The aged and the infirm are accorded special protection also, and
the right of peoples to self-determination is elaborated in the right to existence, equality,
and nondomination. Third, it uniquely embraces two third-generation, or “solidarity,”
rights: the right to economic, social, and cultural development and the right to national
and international peace and security. It differs from other treaties also by detailing
individual duties as well as individual rights—to the family, society, the state, and the
international African community.
Human rights in the Arab world
In September 1968 the Council of the League of Arab States created the Arab
Commission on Human Rights. Its main purposes were to inform the Arab public about
and otherwise promote human rights, not to monitor the human rights practices of the
Arab states or to challenge their violations of human rights when found. Primarily the
commission has been preoccupied with the rights of Arabs living in Israeli-occupied
territories.

On May 22, 2004, however, the Arab League adopted the Arab Charter on Human Rights,
which entered into force on March 15, 2008. The charter affirms the principles set forth
in the International Bill of Human Rights—including, for example, the right to liberty and
security of persons, equality of persons before the law, protection of persons from
torture, the right to own private property, freedom to practice religion, and freedom of
peaceful assembly and association.

At the same time, the charter does not prohibit cruel, inhuman, or degrading
punishments, fails to extend rights to noncitizens in many areas, and authorizes
restrictions on freedom of thought, conscience, and religion that exceed what is deemed
permissible under international human rights law. Furthermore, the
charter relegates many important rights issues to the discretion of national legislation—
e.g., the death penalty against children and the rights of men and women in marriage.

Additionally, the charter affirms the principles set forth in the 1990 Cairo Declaration on
Human Rights in Islam, a declaration of the member states of the Organisation of the
Islamic Conference that provides an Islamic perspective on human rights and affirms that
all the rights and freedoms mentioned in the declaration are subject to Sharīʿah, or
Islamic law, stated in Article 25 to be “the only source of reference for the explanation or
clarification of any of the articles of [the] Declaration.” Accordingly, though using
universalist language akin to that found in the International Bill of Human Rights, the
Arab charter is imbued with an “Islamic particularity.” It also expresses Arab concern
regarding territorial disputes between Israel and the Palestinians. Thus, its controversial
Article 2(3) provides that

All forms of racism, Zionism and foreign occupation and domination constitute an impediment to
human dignity and a major barrier to the exercise of the fundamental rights of peoples; all such
practices must be condemned and efforts must be deployed for their elimination.

The charter also provides for the election of a seven-person Committee of Experts on
Human Rights, which is empowered to request and study reports and to submit its own
findings to the commission. No other institutions or procedures for monitoring human
rights are specified in the charter, however. In this sense as well as others, the Arab
human rights system compares unfavourably with its European, Inter-American, and
African counterparts.
Human rights in Asia
Despite efforts by NGOs and the United Nations, Asian states were at best ambivalent—
and at worst hostile—to human rights concerns over many years, thus precluding
agreement on almost all regional human rights initiatives. But in early 1993, anticipating
the World Conference on Human Rights held in Vienna later that year, a conference of
Asia-Pacific NGOs adopted an Asia-Pacific Declaration of Human Rights, and in 1998
another meeting of NGOs adopted an Asian Human Rights Charter. Both of these
initiatives supported the universality and indivisibility of human rights. However, while
the first initiative called for the creation of a regional human rights regime, the second
urged instead the establishment of national human rights commissions and so-called
“People’s Tribunals,” which would be based more on moral and spiritual foundations
rather than on legal ones.

The states of Asia were slow to respond to these initiatives. Their positions were
indicated at a UN-sponsored workshop in 1996, where the 30 participating states
concluded that “it was premature…to discuss specific arrangements relating to the
setting up of a formal human rights mechanism in the Asian and Pacific region.” The
same states agreed, however, to “[explore] the options available and the process
necessary for establishing a regional mechanism”—a promise that echoed a similar
pledge made by ASEAN (the Association of Southeast Asian Nations) following the 1993
UN World Conference on Human Rights.

More than 14 years later, in November 2007, ASEAN’s 10 member states adopted the
ASEAN Charter, which, following its entry into force in December 2008, gave ASEAN
legal personality, established its organizational framework and procedures, and provided
for a human rights body that would promote and protect human rights as signaled in the
charter’s preamble, purposes, and principles. In October 2009 ASEAN’s member states
formally established the ASEAN Intergovernmental Commission on Human Rights, and in
November 2012 they adopted ASEAN’s first-ever Human Rights Declaration.

In Southeast Asia and around the world, however, ASEAN’s declaration has been greeted
with skepticism. Many respected rights groups, including Amnesty International ,
criticized the declaration for being an unhappy compromise between ASEAN’s
communist and noncommunist member state; for containing language both too broad and
too restrictive to guarantee people’s rights; and for otherwise falling short of
international human rights standards. Of particular concern were provisions that called
for rights to be enjoyed in a “balanced” way, subject to “national and regional contexts”
and deferential to “different cultural, religious and historical backgrounds,” thus
challenging the quintessential universality of human rights. Additionally, critics
challenged the declaration for having been drafted in a non-inclusive, non-transparent
manner, and they faulted ASEAN’s charter for failing to mandate powers sufficient for its
enforcement. Accordingly, they called upon ASEAN leaders to return the declaration to
the ASEAN Intergovernmental Commission on Human Rights explicitly to redraft the
declaration in an inclusive and transparent manner and in keeping with internationally
recognized human rights law and standards.

Not to be overlooked, however, are other developments bearing upon human rights
instruments and mechanisms in Southeast Asia, specifically in relation to particular
groups of people. In January 2007 members of ASEAN adopted a common declaration in
which they recognized the need for a new instrument to protect and promote the rights
of migrant workers. In April 2010, the ASEAN Commission for the Promotion and
Protection of the Rights of Women and Children was inaugurated in Hanoi.
International human rights in domestic courts
Using domestic courts to clarify and safeguard international human rights is a relatively
new and still evolving approach to human rights advocacy, particularly when civil as
distinct from criminal litigation is called into play. In addition to the inevitable
interpretative problems involved in applying norms fashioned in multicultural settings,
controversial theories about the interrelation of national and international law, as well as
many procedural difficulties, burden the human rights claimant in this setting. To be
sure, significant progress has been made, as is perhaps best evidenced, at least insofar as
the United States is concerned, in the far-reaching decision handed down by the U.S.
Court of Appeals for the Second Circuit in Filártiga v. Peña-Irala (1980). In that case, the
court interpreted a theretofore obscure provision of the Judiciary Act of 1789 known as
the Alien Tort Statute (ATS) as allowing foreign victims of human rights abuses by
foreign wrongdoers in foreign countries to seek civil remedies in the U.S. judicial system,
holding that the “well-established universal” prohibition of torture under customary
international law, which applies regardless of the nationality of the victim or the
perpetrator (at least in the case of private litigants), must be honoured in U.S. courts—an
outcome akin to an assertion of universal criminal jurisdiction, as confirmed by
sympathetic rulings following Filártiga.

In 1998–99, in keeping with Filártiga, the United Kingdom’s highest tribunal, the Law
Lords of the British House of Lords, captured international attention when, in response to
an extradition request by a Spanish court, it upheld the arrest in England of former
Chilean president Augusto Pinochet on charges of torture and conspiracy to commit
torture in violation of international treaty law. Although Pinochet was later returned to
Chile for reasons of ill health and was declared by a Chilean court to be mentally unfit to
stand trial, the Law Lords’ ruling established the precedent that former heads of state do
not enjoy immunity from prosecution, at least for systematic human rights crimes—a
principle now enshrined in the workings of the International Criminal Court. In addition,
a considerable number of British cases, decided in the absence of national legislation
expressly enabling claims for extraterritorial human rights abuses and therefore based
on principles of common-law tort, have revealed a willingness to hold
corporations liable for human rights violations perpetrated abroad. European Union (EU)
regulations and civil-law cases within EU member states, assisted by broadened EU and
member-state laws regulating tort cases, are similarly inclined, even to the point of
referencing customary international law to reinforce legislative intent and allow for
universal civil jurisdiction on a “necessity basis.”

Yet, in two prominent human rights cases in the United States, Sosa v. Alvarez-
Machain (2004) and Kiobel v. Royal Dutch Petroleum (2013), the U.S. Supreme Court
moved in the opposite direction, limiting the jurisdictional foundation upon
which Filártiga and its progeny rest. Kiobel, the more unfriendly of the two, was a class-
action suit on behalf of Nigerian residents who had peacefully protested devastating
health and environmental harms resulting from unregulated oil drilling by Royal Dutch
Petroleum (RDP; now Royal Dutch Shell PLC) in their homeland, the Ogoniland region of
the Niger River delta. The plaintiffs alleged that RDP—which was incorporated in the
United Kingdom and headquartered in the Netherlands—had armed, financed, and
conspired with Nigeria’s then military dictatorship to suppress the protests and accused
the Nigerian authorities of having committed between 1992 and 1995, with RDP’s
assistance and complicity, crimes against humanity (including torture and extrajudicial
executions), false arrests, and other violations of international law against the Ogoni
people. Refusing, however, to follow the Filártiga precedent by invoking a canon of
statutory interpretation known as the “presumption against extraterritorial application”
(when legislation gives no clear contrary mandate), the Supreme Court, in a splintered
decision, held that, because “all the…conduct took place outside the United States,” the
ATS did not apply, and it therefore decided in favour of RDP. Accordingly, the court paid
no heed to customary international law as authorized in the ATS. Additionally, but
without explanation, it rejected a universal-jurisdiction reading of the ATS, seemingly
even in suits claiming exceptionally heinous human rights crimes.

Informed observers responding to Kiobel appear generally to have agreed upon at least
four implications of the court’s reasoning in the case: (1) that foreign corporations would
thenceforth be largely, if not completely, insulated from U.S. prosecution under the ATS
for human rights violations committed against foreign nationals in foreign countries, (2)
that U.S. corporations would not be so insulated, (3) that the development of litigation
in Europe and elsewhere outside the United States would be affected by Kiobel only
slightly, if at all, and (4) that the applicability of Kiobel to foreign natural persons, never
addressed by the court, was uncertain. There also was substantial agreement that the
court’s stated rationales for its decision—the minimization of “international friction” and
related separation-of-powers concerns—were insufficient to justify eliding more than
three decades of established ATS precedent. Consequently, other rationales have since
been advanced, as have also credible proposals for circumventing Kiobel’s actual and
potential rationales in favour of laws protecting against at least severe human rights
violations anywhere in the world—as the United States already has done to some extent
with respect to genocide and war crimes. In these lights, it is not unreasonable to
suggest that, with creative and persistent effort, human rights advocacy via domestic
courts, supplementing other domestic-law processes and focused especially on severe
human rights abuses, is within reach within the United States as well as beyond. If this
be so, then human rights can be made to respond more effectively to the multiple ways in
which vulnerability is enacted and entrenched in a world with a long and savage record
of human abuse.
Human rights in the early 21st century
Whatever the current attitudes and policies of governments, the reality of popular
demands for human rights, including both greater economic justice and greater
political freedom, is beyond debate. A deepening and widening concern for the promotion
and protection of human rights on all fronts, hastened by the ideal of self-determination
in a postcolonial era, is now unmistakably woven into the fabric of contemporary world
affairs.

Substantially responsible for this progressive development has been the work of the UN,
its allied agencies, and such regional organizations as the Council of Europe, the OAS,
and the AU. Also contributing to this development, particularly since the 1970s and ’80s,
have been six other salient factors: (1) the emergence of nationalism and rising
expectations in the developing world following the post-World War II dismantling of
colonial empires, (2) the public advocacy of human rights as a key aspect of national
foreign policies, made initially legitimate by the example of U.S. President Jimmy Carter,
(3) the emergence and spread of civil society on a transnational basis, primarily in the
form of activist nongovernmental human rights organizations, (4) a worldwide profusion
of teaching and research devoted to the study of human rights in both formal and
informal settings, (5) the proliferation of large UN conferences in areas such as
children’s rights, population, social development, women’s rights, human settlements,
and food production and distribution, and (6) a feminist intellectual and political
challenge regarding not only the rights of women worldwide but also what feminists
consider to be the paternalistic myths and mythic structures that purport to define
humane governance generally.

To be sure, because the application of international human rights law depends for the
most part on the voluntary consent of nations, formidable obstacles attend the
endeavours of human rights policy makers, activists, and scholars. Human rights
conventions continue to be undermined by the failure of states to ratify them,
by emasculating reservations and derogations, by self-serving reporting systems that
outnumber objective complaint procedures, and by poor financing for the implementation
of human rights prescriptions. In short, the mechanisms for the enforcement of human
rights are still in their infancy, a situation due in no small measure to the post-Cold War
dominance of neoliberalism in world affairs, which is strongly resistant to state and
market regulation of the economy. In this context, the vexing question of corporate
accountability for human rights abuses, and the dangers to human rights values and
capabilities posed by overbearing corporate power, also present complex contemporary
challenges for the future of human rights. Nevertheless, it is certain that, out of necessity
no less than out of realism, a palpable concern for the advancement of human rights is
here to stay.