THEORETICAL APPROACHES OF UNDERSTANDING INTERNATIONAL HUMAN RIGHTS LAW IN CONTEMPORARY WORLD
Author: Khushal Gurjar, I year of Ph.D in Law from Gujarat University
International Human Rights Law as it exists today is the result of years of debating and negotiations between several individuals, institutions, nations and ideologies. Three of the major theoretical approaches that are concerned with this discourse include philosophical, political and legal approaches.
Firstly, the Philosophical approach, also known as the moral or ethical approach, is the oldest and most dominant one in this regard. This approach deals with the subjective part of human rights as it focuses on discovering the scope of every particular right and gives an idea about the constitutive elements of such rights. Further, while protecting a right, we are actually protecting the constituent parts of a right. In this light, this approach becomes even more important because protection and objective realization of human rights is not possible without knowing their scope and nature completely. It encompasses the study of basic values such as equality, liberty, fraternity and justice. Mahavir’s idea of “live and let live” and Buddha’s teaching of compassion become the basis for human rights. This approach identifies human rights in certain norms and moralities universal and indispensable, such as the sanctity of life and principle of co-existence. This approach tries to investigate the need for human rights, consequences of their absence and through that to discover a moral and ethical purpose of life. This approach understands human rights as moral entitlements that are possessed by all persons by virtue of being a human. The basic purpose of this approach is to establish an international legal order protecting the basic features of being a human.
Secondly, the Legal approach is the most dominant approach that deals with the explanation of human rights in contemporary times. It mostly deals with the objective part of these rights by defining the specific nature, scope and limitations of such different rights. It bases its arguments on the practice of contemporary international law, excluding political or moral theory. This approach creates specific rights which are to be considered universal as they exist because of the different conventions and treaties which are accepted and ratified by most of the states throughout the world. This argument finds its reasoning in the international law principle of Pacta Sunt Servandaand hence portrays an adherence to the idea of legal positivism.
Thirdly, the Political approach mostly deals with a critical comment over the other two approaches and tries to argue that human rights as they exist today are mostly defined by political conceptions of different powerful nations and act as a tool to fulfil their purposes in international politics. They define human rights as a social practice, which is invoked for legitimizing certain political actions on the international level. Its main focus is on the asymmetrical division of power in global politics and how different organizations and nations have a shareholding of such power in the current human rights system.
Intersection of Approaches
Even though all these approaches are equally important for understanding the concept of human rights in a holistic manner, these approaches have their own criticisms. The philosophical approach, even though explains the subjective reason behind human rights very well, but yet fails to deal with the objective part. It is because of this nature that this approach fails to successfully implement or define human rights concretely. Further, the proponents of political theorists argue that human rights do not always correlate to the requirements of moral theory but are based on the power dynamics of the global order. An example of this could be the difference in preference of basic human rights values by different nations such as India giving importance to equality over liberty, while the U.S.A focuses more on liberty when compared to equality.
The legal approach, even though the most dominant one is also highly criticized. It fails to accept the existence of human rights prior to positive international law or international human rights regime. Moral theorists argue that a right does not become a human right just because a legal order declares it to be and similarly, a right does not cease to be a human right just because it is not recognized by the international human rights regime. In their view, the legal approach fails to consider the abstract and inherent features of being a human and obligations arising because of that. Further, political theory criticizes the legal approach on the basis of its ignorance of the asymmetrical power division of the world which is the real cause of human rights violations throughout the world. According to them, no human right is fixed or settled and changes according to global politics. Examples of this could be found in the failure of international law to adjudicate human rights violations by the U.S.A in Guantanamo Bay and the general preferences of civil and political rights over economic, social and cultural rights to serve the interest of capitalist nations. The idea of different generations of rights itself portrays the conspiracy to give preference to certain rights according to the interests of powerful nations. Philosophical and Legal approaches also criticize political approaches very strongly. They portray it as an approach which only focuses on outlining the problem rather than trying to provide any concrete solution for it. According to them, when the basic level of protection is already settled by the other two approaches, the political approach does not serve any practical purpose as it lacks the ability to objectively solve the practical problems of human rights. The political approach mainly focuses on the symptoms of the disease while ignoring the redressal of the disease itself.
In conclusion, all three approaches play a vital role in understanding the concept of human rights as it exists in the contemporary world. The philosophical approach provides a normative ideal that is further fixed by the legal approach as it provides a fixed definition, scope ad limitation to human rights. Interestingly, the legal approach is understood as providing only a short-term solution, while the political approach is supposed to give a more permanent solution as it deals with structural aspects of global politics related to human rights. For understanding the concept of human rights in a holistic manner and further developing a perfect mechanism for their protection a perfect balance of all three approaches is required.