CURRENT UNDERSTANDINGS OF HUMAN RIGHTS

Human rights nowadays are part of the domestic legal system and interna­tional legal order. They are rights that a person enjoys simply by virtue of being human, without the requirement of any additional condition and they serve as universal wishes for the well-being of all people, which have been translated into and endowed with legal substance.

• Universal inherence. Every human being has certain rights, capable of being enumerated or defined, which are not conferred on him by any ruler, by any purchase, but inherent in him by virtue of his humanity alone.

• Inalienability. No human being can be deprived of any of those rights, by the act of any ruler.

• Rule of law. The resolution of any conflict of rights is made by consis­tent, independent, and impartial application of just laws in compliance with just procedures.

Additionally, and with regard to the preceding principles, some fundamental aspects can be inferred. The first one deals with the distinction between “human rights” and (ordinary) rights. Rights usually take hold in dualistic form. In almost every right, there is a collative duty imposed on someone else, who is other than the holder of the right (for example, in property claims). Moreover, ordinary rights at large can be transferred, disposed, and diminished, while differentia­tion in treatment is permissible. On the contrary, human rights, being inherent and inalienable, cannot be acquired, transferred, disposed, or extinguished by any act or any event.

Because each state is sovereign, it can exercise its powers deriving from national sovereignty in three different ways: (1) by dealing with its citizens (indi­vidualized sovereignty), (2) by dealing with its territory (territorial sovereignty), and (3) by establishing relationships with other sovereign states. Nevertheless, those legitimate functions of the state in modern society may potentially produce many abuses of citizens’ rights. (See Sieghart, 1990, pp. 11-12.)

The state is not a neutral entity (battle of classes and groups, manipulation, contradictory interests). Furthermore, states often attempt to strengthen their internal control by ideological unification and maintain internal order, which also can have an influence in human rights. Hence, sovereign power can become a threat to the individual’s rights. Actually, power is very rarely used to support human rights, unless there are countervailing forces to which those controlling the state must defer. That is why societies that have discrete bases of power (separation and decentralization of power) are the best protectors of human rights. (See Donnelly and Howard, 1987, pp. 20-23.)

Generally, in case of violations of human rights, international law prohibits intervention (Walzer, 1977). The principle of nonintervention is in close con­nection to the rights of self-determination.⁶ This consequently derives from the rights of individuals, acting as a group or a community (and therefore being free to decide on the governance models of their country). Nevertheless, sometimes human rights abuses are so violent, systematic, and massive they make the argument to insist on the rights of self-determination seem inappropriate or even cynical; hence, preventing further atrocities rests on the international commu­nity.

Against this backdrop, one of the core dilemmas pertains to the legitimate use of force to address systemic human rights violations and/or to promote political regimes more conducive to a widespread respect of human rights. The debate over the notion of humanitarian intervention evidenced that human rights advo­cates strongly endorse the use of force as necessary. Besides, violence has been associated with human rights in various forms, especially at the time of the French Revolution (1789).

Once human rights are defined as inflexible principles that need to be strictly enforced, they tend to encourage the use of violence, although many, even within the human rights activism field, would consider violence unacceptable. Conflict resolution approaches focus more on processes and consider enlarging human rights as an ideal (currently formulated through the Universal Declaration of Human Rights and other instruments) yet to be fully understood and imple­mented. For this reason, many conflict resolution experts would view the use of violence in order to implement human rights as a highly problematic course of action that obstructs rather than resolves the inherent tensions in collectively understanding human rights themselves.

Another point of tension is the relation of culture and human rights.⁷ It is argued that the development of human rights is mostly a European cultural achievement, and therefore it is impossible to implement human rights notions in countries that have different cultural backgrounds. For example, in some countries political participation is an action that is absent from the public dis­course and practice. Yet, counterarguments could insist that culture is adaptive (not static) and cultures do change, that individuals are actors of change even though they are affected by the prevalent social structure, culture, and ideology. Furthermore, just as those who try to modify or change customs may have per­sonal interests in doing that, so also do those who attempt to preserve them. Hence, human rights are not neutral in their impact on different individuals and groups. In other words, cultures reflect the basic economic and political organization of a given society (Donnelly and Howard, 1987, pp. 18-20). The “ten­sion” regarding the cultural dimension of human rights derived from the school of cultural relativism. Franz Boas (1858-1942) established the axiom that the indi­vidual’s beliefs are valid or make sense within his or her own culture, which sub­sequently provoked intense academic and political debate, because it enveloped a range of moral and ethical dilemmas.⁸