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International Human Rights Law: Historical Evolution and Contemporary Issues

The evolution of concept of human rights is hotly debated topic. There are various views of different jurists and thinkers. Many of these views are at best can be said to be subjective and motivated by particular ideologies. There are innumerable views as to when exactly the evolution of the concept of human rights took place. Some hold view that it took place in ancient Greece where the idea of natural rights was first given.

Others however hold that it was Magna Carta which gave rise to the concept of human rights. Then there are thinkers who view human rights evolved along with humanity itself. They associate human rights with the evolution of mankind.

However, no doubt that the human rights evolved through ancient period but in order to understand the evolution of human rights appropriately, we need to shift from ancient period to medieval period. There are certain major events in medieval era which contributed to the evolution of human rights such as Magna Carta of 1215, the English Bill of Rights (1689), United States declaration of Independence (1776), the American Bill of Rights (1791) Declaration of the Rights of Man and of the Citizens (1789).

It has been common understanding that human rights has got international or universal consideration after the second world war which was a dark chapter in the history of mankind. It was this historical landmark which necessitated for the creation of the United Nations with the aim, inter alia.

To develop friendly relations among nations based on respect for the principle of equal rights and self-determination of people and to make other appropriate measures to strengthen world peace. After the UN charter there has been various declarations, conventions and covenants designed for the protection and enforcement of different international human rights norms. Before going into detail discussion of the evolution of human rights, let us first understand the meaning of human rights.

Meaning of Human Rights

The concept of human rights is quite elusive and there is no single definition that could be assigned to it. There are various views as to what constitute human rights. The term 'human rights' itself is used to denote a broad spectrum of rights ranging from the right to life to the right to a cultural identity. They involve all elementary preconditions for a dignified human existence. These rights can be ordered and specified in different ways.

Most of the thinkers, the political entities and jurists try to define human rights in a way that suits their purpose and ideological leanings. This further makes the concept of human rights highly subjective. However, there are certain rights which are so essential that most of these governments and thinkers have to agree upon. These basic rights are right to life, right to liberty, right to justice, right to equality and right to human dignity.

Apart from these rights there are certain freedoms enjoyed by humans by virtue of their being the member of human race. These freedoms are Freedom of speech and expression, freedom of conscience and convictions i.e. freedom to hold any political or religious view and profess the religion and ideology of their choice. Further these freedoms give rise to other freedoms. There is thus branching of various rights and freedoms from few basic root rights and freedoms. Most if not all human rights are claim rights that impose duties or responsibilities on their addressees or duty bearers. Rights focus on a freedom, protection, status, or benefits for the rights holders.

Historical Evolution of International Human Rights

The foundation of Human rights is as old as the history of human being itself. Yet it became the main concern of the world community since 13th century when the law of Magna Carta or Liberties of England 1215, came to the existence to limit the power of government. Since then many development taken place in the field of human rights.

The period from 13th century onwards was mostly characterised by the democratic movements for the respect and proper protection of human rights. This doesn't mean, however, there were no human right concepts before the 13th century. Going back to the teachings of Holy Bible and Holy Quran one can understand how old the concept of human rights is. Centuries before the emergence of western liberal thought, Islam had laid the concept of human rights on very solid ethical grounds.

Historical Traces of International Human Rights

  • Charter of Madina: According to some, the Medina Charter is the world's first written constitution. The Medina Charter was written out in Medina in 622 A.D., more than 600 years before the illustrious Magna Carta. It is also referred to as the Medina Constitution and was the first to establish citizens' rights, obligations, and equality based on non-discrimination. The Holy Prophet Muhammad (ﷺ), after the hijrat in 622 A.D, framed the first ever written constitution of world known as Constitution of Madina or Charter of Madina ( Mithaq Al Madina). The address of the Holy Prophet (ﷺ), on the day of Fath-e-Makkah (Conquest of Makkah), declared three remarkable rights which were enunciated as parts of UN's Universal Declaration, later. These three are as:
    1. Declaration of Peace
    2. Declaration of Freedom
    3. Declaration of Human Equality
    The Last sermon of the Holy Prophet (ﷺ), which he delivered during the last pilgrimage known as "khutba-i-hajjat-ul-wida", is in real sense, universal declaration of human rights, which enumerates fundamental rights to all people irrespective of race, caste, creed, or religion.
  • Magna Carta of 1215: It was charter issued by the then king of England, King John in 1215. This charter was issued was issued by king due to disagreement between King and the Barons, which required the king to respect certain rights of individuals and limit the arbitrary power of king, it enunciated that the king is bound by law. Thus, Magna Carta introduced the raw concept of "Rule of Law", that the king is not above the law. Later, the American Bill of Rights 1791, and Universal Declaration of Human Rights 1948 were influenced by it strongly.
  • English Bill of Rights 1689: The English Bill of Rights 1689 , is also known as Act of Parliament of England,1689. The Bill lays out a constitutional need for the Crown to seek the permission of the people as represented in Parliament, and is largely based on the principles of political thinker John Locke. In addition to establishing the rights of Parliament, including as regular parliaments, free elections, and parliamentary privilege, it also placed restrictions on the monarch's authority. It also included a list of personal freedoms, such as the right to refuse to pay taxes imposed without the consent of Parliament and the ban on cruel and unusual punishment. Finally, it listed and denounced a number of James II of England's transgressions.
  • American Bill of Rights 1791: After 11 years of the declaration of United States's independence(1776) from colonial rule, the Constitution of United States was written in the summer of 1787 in the city of Philadelphia. It is the fundamental law of the land and the oldest written constitution in use, which limits the power of federal government in United States and protects the rights of citizens as well as aliens in US.

The UN Charter and the development of Human Rights:

The UN Charter focuses on the correlation between peace and observance of Fundamental human rights.

This was emphasized by president Truman in his closing address to the San Francisco Conference:
"The charter is dedicated to the achievement and observance of human rights and Fundamental Freedoms. Unless we can attain these objectives for all men and women everywhere without regard to race, language, or religion we cannot have permanent peace and security."

Early drafts of the UN Charter included human rights provisions due to the abhorrence of the atrocities several states, sometimes against their own populations, perpetrated during the Second World War. The UN Charter makes numerous references to human rights it refers to the protection of human rights in setting out the purposes of the United Nations:
The Purposes of the United Nations are:
"....To achieve international co-operation in solving international problems of an economic, social, cultural, or humanitarian character, and in promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language, or religion�."

The other References of UN Charter to Human rights are responsibilities of the General Assembly, Article 55(3); objectives of the International Economic co-operation Article 13(2); functions of ECOSOC Article 62(2).

Universal Declaration on Human Rights:

After the coming into force of the UN charter the preparatory commission of the United Nations recommended that the Economic and Social Council should establish a commission on Human Rights and the later is to formulate "an International Bill of Rights" and to prepare studies and recommendations in the field of human rights. The General Assembly by Resolution Number 7(1), 12th of February 1946 approved this recommendation and the ECOSOC established a Commission on Human Rights and directed it to submit to the council the proposals, recommendations and reports regarding an "International Bill of Rights".

After two years of work, the Commission on Human Rights tabled a draft Universal Declaration of Human Rights before the United Nations General Assembly, the General Assembly completed the first step towards International Bill when it adopted and proclaimed unanimously on 10 December 1948 the universal Declaration of Human Rights.

One distinctive feature of the declaration is that it is neither addressed to the nations nor to the member states of United Nations but to every individual, and it is not a legal declaration in the sense that it is not a legal instrument having a binding force on its ratifiers.

The human right principles under its thirty articles which are basically classified into the category of civil and political rights and category of economic social and cultural rights have been incorporated in various international instruments also. Therefore it is possible to conclude that the universal declaration of 1948 has had tremendous influence on national and international concern of human rights.

To sum up, it has been stated that:
"The Declaration electrified the United Nations and transformed the General Provisions of the Charter into a real concern for human rights demonstrating that the issue was a line and kicking. The process of transformation from constitutionalisation to internationalization of human rights issues. Initiated by the charter. Received a great filling with the adoption of the Declaration."

International Covenants on Human Rights:

The International Bill of Rights comprises the following:
  • The Universal Declaration of Human Rights, 1948
  • The Covenant on Civil and Political Rights, 1966; and the optional protocol attached to it.
  • The Covenant on Economic, Social and Cultural Rights, 1966.

The two covenants were adopted unanimously by the General Assembly and were opened for signature, ratification and accession on 16 December, 1966.

The Covenant on Civil and Political Rights, 1966:

The covenant on civil and political Rights, hereafter the civil covenant, incorporates more comprehensive provisions on implementation. The state party to the covenant "undertakes to respect and to ensure to all individuals within its territory� the rights recognized in the present covenant, without distinction" of any kind and "to take the necessary steps, in accordance with its constitutional process and with the provisions of the present covenant to adopt such legislative and other measures as may be necessary to give effect to the rights recognized in the covenant."

Some protections under the ICCPR are so fundamental that states parties may not fail to respect them even in such times of emergency: these include the rights to life, recognition as a person before the law, and freedom of thought, conscience, and religion; as well as freedom from discrimination, torture, slavery, imprisonment for debt, and retroactive application of criminal law.

The Civil Covenant established the Human Rights committee as the principal international organ f its implementation. It was established on September 1976 by the States parties to the Covenant. The Committee is composed of 18 members who are nationals of the state parties to the covenant. The principal role of the Committee is to receive and comment upon reports, periodically submitted by states parties, detailing steps taken by those states to give effect to the rights set out in the ICCPR.

The Covenant on Economic, Social and Cultural Rights, 1966:

Similar to the civil Covenant the implementation of the Economic Covenant consists of a system of reporting. States parties to the Economic covenant have undertaken the obligation to submit reports on measures adopted by them and the progress made in achieving the observance of the rights contained in the Covenant. These reports are sent to the Economic and social council for consideration through the Secretary General. The Secretary-General of the United Nations shall also transmit to the specialized agencies copies of the reports in regard to matters falling within their respective responsibilities.

To sum up the covenant on Economic Social and Cultural Rights carries an elementary form of implementation in recognition of the fact that these rights are in a state of progressive development in many countries and can only be achieved progressively.

The Economic covenant does not provide more implementation machinery other than on obligation to submit periodic reports to the Economic and Social Council on the measures adopted and the progress achieved towards the realization of these rights.

Contemporary Issues of International Human Rights Law

Nowadays, practically everyone acknowledges that human rights are a source of a state's duties under international law. The majority of the universal human rights recognized in the Covenants, the Universal Declaration, and other particular universal human rights accords are also generally accepted. The debate over international human rights has not, however, subsided, contrary to popular belief. Instead, fresh disputes have surfaced that might jeopardize the full fulfillment and application of international agreements protecting human rights.

The legality of reservations to global or regional human rights treaty regimes, the status of human rights norms as customary, whether the idea of universal human rights norms requires that these norms be applied universally or whether there is room for interpretations and applications that are considerate of contextual factors like local cultural traditions, and whether and how to strengthen enforcement are some of the more prominent areas of contention.

The Issue of Universality of Human Rights and Cultural Relativism

Even less agreement exists in another critical area of dispute, that of harmonizing regional or local cultural sensitivities within a universal human rights framework. This issue was foreshadowed by differences between Western, developed governments on the one hand, and the Eastern Bloc and many developing states on the other, during the drafting of the Universal Declaration, the ICCPR, and the ICESCR.

The Eastern Bloc generally believed that the universal human rights which were developed after World War II is largely a Western Construct. As a result, many such states, rather than rejecting outright the concept of universal human rights, have asserted that such rights are to be given an interpretation and an application that is consistent with their local traditions and cultural norms.

To try to reconcile these opposing viewpoints, the United Nations World Conference on Human Rights in 1993 approved a Declaration and Programme of Action that included the following text:
"All human rights are universal, indivisible and interdependent and interrelated. The international community must treat human rights globally in a fair and equal manner, on the same footing, and with the same emphasis. While the significance of national and regional particularities and various historical, cultural and religious backgrounds must be borne in mind, it is the duty of States, regardless of their political, economic and cultural systems, to promote and protect all human rights and fundamental freedoms."

This attempt, however, doesn't solve the much of issue as it reiterated its necessary elements. The matter has accordingly not been settled and remains one of the most common sources of tensions between states in the area of international human rights.

Paucity of Effective Enforcement Mechanism

As we've seen, one of the quirks of the international legal system is that, while having substantive norms that are comparatively well-developed, there aren't many institutions or enforcement mechanisms that can put those laws into effect without the cooperation of the governments involved.

International human rights rules face a particularly severe enforcement issue, as was demonstrated in our examination of the ICCPR and ICESCR above. This may be partially due to the fact that such standards often only affect the rights of persons rather than the rights of states. When One state breaches obligation owes to other, then the later has legal personality in International Law through which the victim state can assert claim against other at international level, but when it comes to individuals, no such personality exist in International Law.

Asserting that abuses of human rights harm the whole international community rather than just specific people or even certain governments would be a partial answer to these issues. In this sense, any state may possibly file a lawsuit against an offended state on the grounds that the alleged infringement has harmed its interests. The International Law Commission partially followed this strategy in its Draft Articles on State Responsibility by granting all nations limited standing in circumstances of violations of the "collective interest" or of responsibilities "owed to the international community as a whole."

The idea that at least "basic rights of the human person" are owed erga omnes�that is, to the entire international community-and thereby give all states standing to pursue claims arising out of such rights' violations-is also supported by the International Court of Justice's legal precedent.

Human Rights in Private Realm

The primary goal of the human rights system, according to the classical liberal theory, is to defend the person against the state. According to this viewpoint, they simply impose responsibilities on the state and restrict its authority.

The first is that nations no longer consistently violate human rights; instead, individuals and groups do so more frequently.

Human rights abuses are now mostly committed by terrorist organizations, bigots, and ethnic nationalists. As a result, the concept of erga omnes of human rights (human rights for everyone) has gained prominence. In fact, if human rights are acknowledged in respect to the state, they must also be recognized in reference to those people or organizations that violate them.

Second, it is challenging to maintain the division between the public and private realms given the expanding scope of human rights. Human rights are becoming an issue in private law and pertain to relationships between private individuals.

Thirdly, there is a significant push toward privatizing the usual sites of human rights abuses. As a result, the protection offered there against the governments now also applies to the privatized enterprises.

The methods for punishing those who violate human rights are one issue that comes up. According to their respective conventions, the international judicial bodies, such as the European Commission of Human Rights, the European Court of Human Rights, or the Inter-American Court of Human Rights, are not required to take into account applications that are unrelated to claims of state violations. There is no way for individuals or organizations to seek redress from the international authorities because human rights are usually safeguarded against states.

On the other hand, the absence of direct international remedies against alleged offenders other than States does not negate the existence of obligations owed by private individuals or organizations. A number of international treaties have established obligations or duties for certain individuals or organizations.

For instance, the Convention on the Prevention and Punishment of the Crime of Genocide, 1948 covers acts committed also by private persons.

Article 30 of the Universal Declaration of Human Rights states that:
"Nothing in this Declaration may be interpreted as implying for any state, group or person any right to engage in any activity or to perform any act aimed at the destruction of any of the rights and freedoms set forth herein."

Similarly, Article 17 of the European Convention on Human Rights states that:
"Nothing in this convention may be interpreted as implying for any state, group or person any right to engage in any activity or perform any act aimed at the destruction of the rights and freedoms set forth herein..."

Minority Rights
After the First World War, the League of Nations was faced with the challenge of defending national minorities throughout Europe. An early example is Article 93 of the 1919 Versailles Treaty with Poland, to protect groups differing, by race, religion or language, from the majority of the population.

The right of individual members of linguistic, racial, or cultural minorities to have their language and identity respected by the state was acknowledged after World War II. With the rise of ethno-nationalism in many parts of the world, not only in the Balkans and in the former Soviet Union, the status of ethnic minorities and other groups in international law has again become a central issue.

On the global level, Article 27 ICCPR, focusing on the rights of individuals belonging to a minority, rather than the rights of minorities themselves, provides the only generally applicable binding standard in international law. Other treaties and declarations on minorities mainly endorse human rights standards, such as non-discrimination.

The 1992 UN Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities refers to both the existence and identity of minorities (Article 1), and rights of persons belonging to them (Articles 2ff). On the regional level, the European Charter for Regional or Minority Languages was adopted by the Council of Europe in 1992. The 1995 Council of Europe Framework Convention for the Protection of National Minorities is also centred on individual rights of persons belonging to minorities.

Capotorti has given a definition of Minorities, as the United Nations Special Rapporteur, in his Study on the Study of Rights of Persons Belonging to Ethnic, Religious and Linguistic Minorities of 1977:
"A group numerically inferior to the rest of the population of a State, in a non-dominant position, whose members � being nationals of the State � possess ethnic, religious or linguistic characteristics differing from those of the rest of the population and show, if only implicitly, a sense of solidarity, directed towards preserving their culture, traditions, religion or language."

The term "minority" is not, however, defined in international law in a way that is commonly accepted. Additionally, neither the 1995 Council of Europe Framework Convention nor the UN statement on minorities contain a definition of minorities, leaving it up to the States parties to decide.

Overall, while minorities are groups, minority rights are not group rights, but rights of persons belonging to minorities; they are thus aspects of human rights, objectively protecting individuals, which signifies the absence of the link to rights of a neighbouring or other State that shares the same national or ethnic background.

Other Contemporary Issues
The creation of human rights legislation (HRL) is considered one of the most significant achievements in international relations. The United Nations has played a significant role in developing standards and producing papers that outline widely accepted human rights since 1945. At the last count, there are nine core international human rights instruments and several optional protocols. For the purpose of overseeing and monitoring the application of human rights, the UN has also established internal organizations.

IHRL is challenged in a number of ways despite the abundance of international human rights treaties and organizations established to oversee their implementation. The first of these challenges is the fact that international human rights law lacks a guardian body similar to the ICRC to determine the research agenda. Scholars also reflect a consensus that international human right is also plagued with some contemporary challenges like 'transitional justice', non-state actors, terrorism, poverty and environmental degradation including climate change. Other wider ranges of challenges that have been identified are the challenge of content and scope, the application of human rights to social issues and the problem of implementation and enforcement.

Other challenges include the fact that IHRL tolerates the traits of complexity, fragmentation, and under-inclusiveness including the unhealthy paradox of states acting both as primary protector and violator of human rights. Apart from these challenges, which required much attention, the challenge of climate change is burning issue in contemporary world, which also required much attention.

In conclusion, international human rights law has undergone a remarkable historical evolution, transitioning from its roots in the aftermath of World War II to a comprehensive framework encompassing a wide array of rights and obligations. This evolution reflects humanity's collective commitment to protecting the inherent dignity and fundamental freedoms of all individuals, regardless of their nationality, race, or creed.

Yet, the contemporary landscape of international human rights law is not without its challenges. Emerging issues such as digital privacy, climate change-induced displacement, and the complexities of balancing security concerns with civil liberties continue to test the efficacy of this legal framework. Nevertheless, the enduring principle that every person is entitled to a life of dignity and equality remains a guiding beacon.

The future of International human rights law will depend on the collective will of nations and their ability to adapt to the evolving global context. It is our responsibility, as global citizens, to uphold these principles and strive for a world where human rights are not just enshrined in law but are a lived reality for all.

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