Human Rights

Author(s): Burns H. Weston

Source: Human Rights Quarterly, Vol. 6, No. 3 (Aug., 1984), pp. 257-283
Published by: The Johns Hopkins University Press
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HUMANRIGHTSQUARTERLY

Human Rights*

Burns H. Weston

It is a common observationthat human beings everywheredemand the

realizationof diversevalues to ensure their individualand collective well-
being. It also is a common observationthat these demandsare often pain-
fullyfrustratedby social as well as naturalforces, resultingin exploitation,
oppression,persecution,and other formsof [Link] rooted in
these twin observationsare the beginningsof what today are called"human
rights"and the legal processes, nationaland international,associatedwith
them.
Thisarticleis divided into the followingsections:
Historicaldevelopment
Definitionof humanrights
Nature
Content
Legitimacyand priority
Internationalhuman rights:prescriptionand enforcement
BeforeWorldWar II
Humanrightsin the United Nations
Humanrightsand the HelsinkiProcess
Regionaldevelopments
Internationalhuman rightsin domestic courts
Conclusion

HISTORICALDEVELOPMENT

The expression"humanrights"is relativelynew, havingcome into everyday

parlanceonly since WorldWar IIand the foundingof the UnitedNationsin
1945. It replacesthe phrase"naturalrights,"which fell into disfavourin part

* Thisarticlewill appearin the 1985 printingof the [Link]

with the expresspermissionof the authorand of the EncyclopediaBritannica,Inc.

257

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258 WESTON

because the concept of naturallaw (to which it was ultimatelylinked)had

become a matterof great controversy-and the later phrase"therightsof
Man"-which was not universallyunderstood to include the rights of
women.
Moststudentsof humanrightstracethe historicaloriginsof the concept
back to ancient Greece and Rome, where it was closely tied to the
premodernnaturallaw doctrinesof Greek Stoicism(the school of philos-
ophy founded by Zeno of Citium,which held thata universalworkingforce
pervadesall creationand that human conduct thereforeshould be judged
accordingto, and broughtinto harmonywith, the law of nature).Theclassic
example, drawnfromthe Greek literature,is that of Antigone,who, upon
being reproachedby Creonfor defyinghis command not to buryher slain
brother,defended her conduct by assertingthat she acted in accordance
with the immutablelaws of the gods.
In part because HellenisticStoicismplayed a key role in its formation
and spread, Romanlaw may similarlybe seen to have allowedfor the exis-
tence of a naturallaw and, with it, pursuantto the jus gentium ("lawof
nations'9,certainuniversalrightsthatextended beyondthe rightsof citizen-
ship. Accordingto the RomanjuristUlpian,for example, naturallaw was
that which nature-not the state-assures to all human beings, Roman
citizen or not.
Itwas not untilmuch later,afterthe MiddleAges, however,thatnatural
law doctrinesbecame closely associatedwith liberalpoliticaltheoriesabout
[Link] Greco-Romanand medievaltimes, naturallaw doctrines
taught mainly the duties, as distinguishedfrom the rights, of "Man."
Moreover,as evident in the writingsof Aristotleand St. ThomasAquinas,
these doctrinesrecognizedthe legitimacyof slaveryand serfdomand, in so
doing, excluded perhapsthe centralmostideas of human rightsas they are
understoodtoday-the ideas of freedom (or liberty)and equality.
Forthe idea of human(i.e., natural)rightsto take hold as a generalsocial
need and reality,it was necessarythat basicchangesin the beliefsand prac-
tices of society take place, changes of the sort that evolved fromabout the
13thcenturyto the Peace of Westphalia(1648),duringthe Renaissanceand
the decline of feudalism. When resistanceto religious intolerance and
political-economicbondage began the long transitionto liberalnotions of
freedom and equality,particularlyin relationto the use and ownershipof
property,then were the foundationsof what today are called humanrights
truly laid. Duringthis period, reflectingthe failureof rulersto meet their
naturallaw obligationsas well as the unprecedentedcommitmentto individ-
ual expression and worldly experience that was characteristicof the
Renaissance,the shiftfromnaturallaw as dutiesto naturallaw as rightswas
made. The teachings of Aquinas (1224/25-1274) and Hugo Grotius
(1583-1645) on the European continent, and the Magna Carta (1215), the
Petition of Right of 1628, and the English Bill of Rights (1689) in England,

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HumanRights 259

were proof of this change. All were testimonyto the increasinglypopular

view that human beings are endowed with certaineternaland inalienable
rights,never renouncedwhen humankind"contracted" to enter the social
from the primitive state and never diminished by the claim of "the divine
of
right kings."
It was primarilyfor the 17th and 18th centuries,however,to elaborate
upon this modernistconception of naturallaw as meaning or implying
[Link] scientificand intellectualachievementsof the 17th cen-
tury-the discoveriesof Galileo and Sir Isaac Newton, the materialismof
Thomas Hobbes, the rationalismof Rene Descartesand GottfriedWilhem
Leibnitz,the pantheismof Benedictde Spinoza,the empiricismof Francis
Bacon and John Locke- encouraged a belief in naturallaw and universal
order;and duringthe 18th century,the so-calledAge of Enlightenment,a
growing confidence in human reason and in the perfectabilityof human
affairsled to its [Link] to be noted are
the writingsof the 17th-centuryEnglishphilosopherJohn Locke- arguably
the most importantnaturallaw theoristof modern times-and the works
of the 18th-century Philosophes centred mainly in Paris, including
Montesquieu, Voltaire, and Jean-JacquesRousseau. Locke argued in
detail, mainly in writings associated with the Revolutionof 1688 (the
GloriousRevolution),that certainrightsself-evidentlypertainto individuals
as human beings (because they existed in "the state of nature"before
humankindentered civil society);that chief among them are the rightsto
life, liberty(freedomfromarbitraryrule),and property;that, upon entering
civil society, pursuantto a "socialcontract,"humankindsurrenderedto the
stateonly the rightto enforcethese naturalrights,not the rightsthemselves;
and that the state'sfailureto secure these reservednaturalrights(the state
itself being under contractto safeguardthe interestsof its members)gives
riseto a rightto responsible,[Link] Philosophes,building
on Lockeand others and embracingmany and variedcurrentsof thought
with a common supremefaithin reason,vigorouslyattackedreligiousand
scientific dogmatism, intolerance, censorship, and social-economic
[Link] soughtto discoverand act upon universallyvalidprinciples
harmoniouslygoverningnature,humanity,and society, includingthe theory
of the inalienable"rightsof Man"that became theirfundamentalethicaland
social gospel.
All this liberalintellectualfermenthad, not surprisingly,
greatinfluence
on the Westernworld of the late 18th and early 19th [Link]
with the practicalexampleof England'sRevolutionof 1688 and the resulting
Billof Rights,it providedthe rationaleforthe wave of revolutionaryagitation
that then swept the West, most notably in North Americaand France.
Thomas Jefferson,who had studied Locke and Montesquieuand who
asserted that his countrymen were a "free people claiming their rights as
derived from the laws of nature and not as the gift of their Chief Magistrate,"

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260 WESTON

gave poetic eloquence to the plainproseof the 17thcenturyin the Declara-

tion of Independenceproclaimedby the 13 AmericanColonies on July4,
1776: 'We hold these truthsto be self-evident,that all men are created
equal, that they are endowed by their Creatorwith certain unalienable
Rights,that among these are Life, Libertyand the Pursuitof Happiness."
Similarly,the Marquisde Lafayette,who won the close friendshipof George
Washingtonand who sharedthe hardshipsof the AmericanWar of Inde-
pendence, imitated the pronouncements of the Englishand American
revolutionsin the Declarationof the Rightsof Man and of the Citizenof
August26, 1789. Insistingthat "menare born and remainfree and equal in
rights,"the declarationproclaimsthat"theaim of every politicalassociation
is the preservationof the naturaland imprescriptible rightsof man,"identifies
these rightsas "Liberty, Property,Safetyand Resistanceto Oppressions," and
defines"liberty" so as to includethe rightto free speech, freedomof associa-
tion, religiousfreedom,and freedomfromarbitraryarrestand confinement
(as if anticipatingthe Billof Rightsadded in 1791 to the Constitutionof the
United Statesof 1787).
In sum, the idea of humanrights,called by anothername, playeda key
role in the late 18th-and early 19th-centurystrugglesagainstpoliticalabso-
lutism. It was, indeed, the failure of rulers to respect the principlesof
freedom and equality,which had been centralto naturallaw philosophy
almostfromthe beginning,thatwas responsibleforthis [Link]
words of Maurice Cranston, a leading student of human rights, "... . abso-
lutismpromptedmanto claim[human,or natural]rightspreciselybecause it
denied them."
The idea of humanrightsas naturalrightswas not withoutitsdetractors,
however,even at this otherwisereceptivetime. Inthe firstplace, being fre-
quently associatedwith religiousorthodoxy,the doctrine of naturalrights
became less and less acceptableto philosophicaland [Link]-
tionally, because they were conceived in essentiallyabsolutist-"inalien-
able,""unalterable," "eternal"-terms,naturalrightswere found increasingly
to come into conflictwith one [Link] importantly,the doctrineof
naturalrightscame under powerfulphilosophicaland politicalattackfrom
both the rightand the left.
In England,forexample,conservativesEdmundBurkeand DavidHume
unitedwith liberalJeremyBenthamin condemningthe doctrine,the former
out of fear that public affirmationof naturalrightswould lead to social
upheaval,the latterout of concern lest declarationsand proclamationsof
naturalrightssubstitutefor effective [Link] his Reflectionson the
Revolutionin France(1790), Burke,a believerin naturallaw who nonethe-
less denied that the "rightsof man"could be derivedfrom it, criticizedthe
draftersof the Declarationof the Rightsof Man and of the Citizenfor pro-
claiming the "monstrousfiction"of human equality, which, he argued,
serves but to inspire "false ideas and vain expectations in men destined to

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HumanRights 261

travelin the obscurewalkof laboriouslife."Bentham,one of the foundersof

Utilitarianismand a nonbeliever,was no less scornful."Rights,"
he wrote, "is
the child of law; from real law come real rights;but from imaginarylaws,
from 'law of nature,'come imaginaryrights.... Naturalrightsis simple
nonsense; natural and imprescriptible rights (an American phrase),
rhetoricalnonsense, nonsense upon stilts."Hume agreed with Bentham;
natural law and natural rights, he insisted, are unreal metaphysical
phenomena.
Thisassaultupon naturallaw and naturalrights,thus begun duringthe
late 18thcentury,both intensifiedand broadenedduringthe 19thand early
20th [Link],despite his vigorousdefense of liberty,pro-
claimed that rights ultimatelyare founded on [Link] Germanjurist
Friedrich Karl von Savigny, England'sSir Henry Maine, and other
historicalistsemphasizedthat rightsare a functionof culturaland environ-
mental variablesunique to particularcommunities. And the juristJohn
Austinand the philosopherLudwigWittgensteininsisted,respectively,that
the only law is "the command of the sovereign"(a phrase of Thomas
Hobbes)and thatthe only truthis thatwhich can be establishedby verifiable
experience. ByWorldWarI, therewere scarcelyanytheoristswho would or
could defend the "rightsof Man"along the lines of naturallaw. Indeed,
under the influenceof 19th-centuryGermanIdealismand parallelexpres-
sions of risingEuropeannationalism,there were some-the Marxists,for
example-who, although not rejectingindividualrightsaltogether,main-
tainedthat rights,fromwhateversource derived,belong to communitiesor
whole societiesand [Link] F. H. Bradley,the British
Idealist,write in 1894: "Therightsof the individualare today not worth
seriousconsideration.... The welfareof the communityis the end and is
the ultimatestandard."
Yet, thoughthe heydayof naturalrightsprovedshort,the idea of rights
nonethelessenduredin one formor [Link] abolitionof slavery,fac-
tory legislation,populareducation, trade unionism,the universalsuffrage
movement-these and other examples of 19th-centuryreformistimpulse
affordample evidence that the idea was not to be extinguishedeven if its
transempirical derivationhad become a matterof [Link]
was not until the rise and fall of Nazi Germanythat the idea of rights-
human rights-came trulyinto its own. The lawsauthorizingthe disposses-
sion and exterminationof Jews and other minorities,the laws permitting
arbitrarypolice searchand seizure, the laws condoning imprisonment,tor-
ture, and execution without public trial-these and similar obscenities
broughthome the realizationthat law and morality,if they areto be deserv-
ing of the name, cannot be grounded in any purelyUtilitarian,Idealist,or
other [Link] wrong, no matterwhat;
human beings are entitled to simple respect at least.
Today, the vast majority of legal scholars, philosophers, and moralists

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262 WESTON

agree, irrespectiveof cultureor civilization,that every humanbeing is enti-

tled, at least in theory,to some basic [Link] the ProtestantReforma-
tion and to the English,American,French,Mexican,Russian,and Chinese
revolutions,the lasthalfof the 20th centuryhas seen, in the wordsof human
rights scholar Louis Henkin, "essentiallyuniversalacceptance of human
rightsin principle"such that "no governmentdares to dissent from the
ideologyof humanrightstoday."Indeed,except forsome essentiallyisolated
19th-centurydemonstrationsof internationalhumanitarianconcern to be
noted below, the lasthalfof the 20th centurymay fairlybe saidto markthe
birthof the internationalas well as the universalrecognitionof humanrights.
In the treatyestablishingthe United Nations (U.N.), all memberspledged
themselvesto take jointand separateactionfor the achievementof "univer-
sal respectfor, and observanceof, humanrightsand fundamentalfreedoms
for all without distinctionas to race, sex, language, or religion."In the
UniversalDeclarationof Human Rights(1948), representativesfrom many
diverseculturesendorsedthe rightsthereinset forth"asa common standard
of achievementfor all peoples and all nations."And in 1976, the Interna-
tional Covenanton Economic,Social and CulturalRightsand the Interna-
tional Covenanton Civiland PoliticalRights,each approved by the U.N.
GeneralAssemblyin 1966, entered into force and effect.

DEFINITIONOF HUMAN RIGHTS

To say thatthere is widespreadacceptanceof the principleof humanrights

on the domesticand internationalplanesis not to say thatthere is complete
agreementaboutthe natureof such rightsor theirsubstantivescope - which
is to say, their [Link] of the most basic questions have yet to
receive conclusive answers. Whether human rightsare to be viewed as
divine, moral,or legalentitlements;whetherthey areto be validatedby intu-
ition, custom, social contracttheory, principlesof distributivejustice,or as
prerequistiesfor happiness;whether they are to be understoodas irrevo-
cable or partiallyrevocable;whether they are to be broad or limited in
number and content-these and kindred issues are mattersof ongoing
debate and likely will remain so as long as there exist contending
approachesto publicorder and scarcitiesamong resources.

Nature

Despitethis lackof consensus, however,a numberof widelyaccepted- and

interrelated- postulatesmay be seen to assist,if not to complete, the taskof

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HumanRights 263

[Link] particularstandout, althoughit is to be noted

that not even these are withoutcontroversy.
First,regardlessof theirultimateoriginor justification,humanrightsare
understoodto representindividualand groupdemandsfor the shapingand
sharingof power, wealth, enlightenment,and other cherished values in
communityprocess,mostfundamentallythe value of respectand itsconstit-
uent elements of reciprocaltoleranceand mutualforebearancein the pur-
suit of all othervalues. Consequently,they implyclaimsagainstpersonsand
institutionswho impede realizationand standardsforjudgingthe legitimacy
of laws and [Link] bottom, human rightslimitstate power.
Second, reflecting varying environmental circumstances, differing
worldviews,and inescapableinterdependencieswithinand between value
processes, human rightsreferto a wide continuumof value claimsranging
fromthe most justiciableto the most [Link]
both the legaland the moralorders,sometimesindistinguishably. They are
expressive of both the "is"and the "ought" in human affairs.
Third,if a rightis determinedto be a human rightit is quintessentially
general or universalin character,in some sense equally possessed by all
humanbeingseverywhere,includingin certaininstanceseven the unborn.
In starkcontrastto "thedivinerightof kings"and othersuch conceptionsof
privilege,humanrightsextend, in theory,to every personon earthwithout
discriminationsirrelevantto merit.
Fourth,mostassertionsof humanrights- arguablynot all- are qualified
by the limitationthat the rightsof any particularindividualor group in any
particularinstanceare restrictedas much as is necessaryto secure the com-
parablerightsof othersand the aggregatecommon [Link] inter-
dependency, humanrightsare sometimesdesignatedprimafacie rights,and
it makes littleor no sense to thinkor talk of them in absolutistterms.
Fifthand finally,humanrightsare commonlyassumedto refer,in some
vague sense, to "fundamental" as distinct from "nonessential"claims or
"goods."In fact, some theoristsgo so faras to limithumanrightsto a single
core rightor two - forexample,the rightto lifeor the rightto equalfreedom
of [Link] tendency, in short,is to de-emphasizeor ruleout "mere
wants."
Inseveralcriticalrespects,however,this lastpostulateraisesmoreques-
tions than it [Link] it mean to say that a rightis fundamental?
Does it entailsome bare minimumonly, or, more plausibly,does it admitto
somethinggreater?Ifthe latter,how much greaterand subjectto what con-
ditions,ifany?Inotherwords, howeveraccurate,this lastpostulateis fraught
with ambiguityaboutthe content and legitimatescope of humanrightsand
about the priorities,if any, among them. Exceptfor the issue of the origin
and justificationof humanrights,no clusterof preliminaryhumanrightscon-
siderations is more controversial.

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 264 WESTON

Content

It cannot be disputedthat, like all normativetraditions,the human rights

traditionis a product of its time. It necessarilyreflectsthe processes of
historicalcontinuityand change that,at once and as a matterof cumulative
experience, help to give it substance and form. Therefore,to understand
betterthe debate over the content and legitimatescope of humanrightsand
the prioritiesclaimedamongthem, it is usefulto note the dominantschools
of thoughtand action that have informedthe human rightstraditionsince
the beginningof moderntimes.
helpfulin this regardis the notion of "threegenerationsof
Particularly
human rights"advanced by the [Link] the
three normativethemes of the FrenchRevolution,they are:the firstgenera-
tion of civiland politicalrights(libert6);the second generationof economic,
social, and culturalrights(6galit6);and the thirdgenerationof newly called
Vasak'smodel is of coursea simplifiedexpression
solidarityrights(fraterni(f).
of an extremely complex historicalrecord; it is not intended as a literal
representationof life in which one generationgives birthto the next and
then dies away.

The [Link] first generationof civil and political rights

derives primarilyfrom the 17th-and 18th-centuryreformisttheories noted
above, which are associatedwith the English,American,and Frenchrevolu-
tions. Infusedwith the politicalphilosophyof liberalindividualismand the
economic and social doctrineof laissez-faire,it conceives of human rights
more in negative("freedomsfrom")than positive("rights to")terms;it favours
the abstentionratherthan the interventionof governmentin the quest for
humandignity,as epitomizedby the statementattributedto H. [Link]
that ". . . all government is, of course, against liberty."Belonging to this first
generation,thus, are such claimed rightsas are set forthin Articles2-21 of
the UniversalDeclarationof Human Rights,includingfreedomfrom racial
and equivalentforms of discrimination;the rightto life, liberty,and the
security of the person; freedom from slavery or involuntaryservitude;
freedomfromtortureand from cruel, inhuman,or degradingtreatmentor
punishment;freedomfromarbitraryarrest,detention,or exile;the rightto a
fair and public trial; freedom from interference in privacy and cor-
respondence;freedomof movementand residence;the rightto asylumfrom
persecution;freedomof thought,conscience, and religion;freedomor opin-
ion and expression;freedomof peacefulassemblyand association;and the
rightto participatein government,directlyor throughfree elections. Also
included is the rightto own propertyand the rightnot to be deprivedof
one's propertyarbitrarily,
each fundamentalto the interestsfoughtfor in the
Americanand Frenchrevolutionsand to the rise of capitalism.

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HumanRights 265

Of course, it would be errorto assertthat these and other first-genera-

tion rightscorrespondcompletely to the idea of "negative"as opposed to
"positive"[Link] rightto securityof the person,to a fairand publictrial,
to asylumfrom persecution,and to free elections, for example, manifestly
cannot be assured without some affirmativegovernmentaction. What is
constantin thisfirst-generationconception, however,is the notionof liberty,
a shieldthatsafeguardsthe individual,alone and in associationwith others,
againstthe abuse and misuse of [Link] is the core value.
Featuredin almost every constitutionof today'sapproximately160 states,
and dominatingthe majorityof the internationaldeclarationsand covenants
adopted since WorldWar II,this essentiallyWesternliberalconception of
humanrightsis sometimesromanticizedas a triumphof Hobbesian-Lockean
individualismover Hegelianstatism.

The Second [Link] second generationof economic, social,

and culturalrightsfindsits originsprimarilyin the socialisttraditionthatwas
foreshadowedamong the Saint-Simonians of early 19th-centuryFranceand
variouslypromotedby revolutionarystrugglesand welfaremovementsever
since. In largepart, it is a responseto the abuses and misusesof capitalist
developmentand its underlying,essentiallyuncritical,conceptionof individ-
ual libertythat tolerated, even legitimated,the exploitationof working
classesand colonialpeoples. Historically,it is counterpointto the firstgener-
ation of civil and political rights,with human rightsconceived more in
positive ("rightsto') than negative ("freedomsfrom'")terms, requiringthe
intervention,not the abstention,of the state for the purpose of assuring
equitable participationin the production and distributionof the values
involved. Illustrativeare the claimed rightsset forthin Articles22-27 of the
UniversalDeclarationof HumanRights,such as the rightto social security;
the rightto work and to protectionagainstunemployment;the rightto rest
and leisure,includingperiodicholidayswith pay;the rightto a standardof
livingadequatefor the healthand well-beingof self and family;the rightto
education;and the rightto the protectionof one's scientific,literary,and
artisticproduction.
Yet, in the same way thatall the rightsembracedby the firstgeneration
of civiland politicalrightscannot properlybe designated"negativerights," so
all the rightsembracedby the second generationof economic, social, and
culturalrightscannot properlybe labeled"positiverights."The rightto free
choice of employment,the rightto formand to join trade unions, and the
rightfreelyto participatein the culturallife of the community,for example,
do not inherentlyrequireaffirmativestateactionto ensuretheirenjoyment.
Nevertheless,mostof the second-generationrightsdo necessitatestateinter-
vention in the allocationof resourcesbecausethey subsumedemandsmore
for material than for intangible values according to some criterion of

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266 WESTON

distributivejustice. Second-generationrightsare, fundamentally,claimsto

social [Link] of the comparativelylate arrivalof socialist-
communist influence in the normative domain of internationalaffairs,
however, their internationalizationof these rightshas been somewhatslow
in coming;but with the ascendancyof the ThirdWorldon the globalstage,
intentupon a "revolutionof risingexpectations,"they have begunto come of
age.

The [Link],the thirdgenerationof solidarityrights,

while drawing upon, interlinking,and reconceptualizingvalue demands
associatedwiththe two earliergenerationsof rights,are best understoodas a
product,albeitone stillin formation,of both the riseand the decline of the
nation-statein the last halfof the 20th [Link] Article28
of the Univerval Declaration of Human Rights, which proclaims that
"everyoneis entitledto a social and internationalorderin which the rights
set forth in this Declarationcan be fully realized,"it appears so far to
embrace six claimed [Link] of these reflectthe emergence of Third
World nationalismand its demand for a global redistributionof power,
wealth, and other importantvalues:the rightto political,economic, social,
and culturalself-determination; the rightto economic and social develop-
ment; and the right participatein and benefitfrom"thecommon heritage
to
of mankind"(sharedEarth-spaceresources;scientific,technical,and other
informationand progress;and culturaltraditions,sites, and monuments).
The other three third-generationrights-the rightto peace, the rightto a
healthyand balancedenvironment,and the rightto humanitariandisaster
relief-suggest the impotence or inefficiencyof the nation-statein certain
criticalrespects.
All six of these claimed rightstend to be posed as collective rights,
requiringthe concertedeffortsof all social forces,to substantialdegree on a
planetaryscale, and implyinga quest for a possibleutopiathat projectsthe
notionof [Link],however,manifestsan individ-
ual as well as [Link],while it may be said to be
the collectiverightof all countriesand peoples (especiallydevelopingcoun-
tries and non-self-governingpeoples) to secure a new international
economic orderthatwould eliminateobstaclesto theireconomic and social
development,so also may it be saidto be the individualrightof all persons
to benefitfrom a developmentalpolicy that is based on the satisfactionof
material and nonmaterialhuman needs. Also, while the right to self-
determinationand the rightto humanitarianassistance,for example, find
expressionon the legal as well as the moral plane, the majorityof these
solidarityrightstend to be more aspirationalthan justiciablein character,
enjoying as yet an ambiguousjural status as internationalhuman rights
norms.

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HumanRights 267

Thus, at various stages of modern history-following the "bourgeois"

revolutionsof the 17th and 18th centuries,the socialistand Marxistrevolu-
tions of the early20thcentury,and the anticolonialistrevolutionsthatbegan
immediatelyfollowingWorldWar II- the content of humanrightshas been
broadlydefined, not withany expectationthatthe rightsassociatedwith one
generationwould or should become outdated upon the ascendancy of
another,but expansivelyor [Link]
of which values, at differenttimes, stand most in need of encouragement
and protection, the history of the content of human rightsalso reflects
humankind'srecurringdemands for continuityand stability.

Legitimacyand Priority

Thisis not to implythat each of these three generationsof rightsis equally

acceptable to all or that they or their separateelements are greeted with
equal urgency. First-generation proponents,for example, are inclined to
exclude second- and third-generationrightsfromtheirdefinitionof human
rightsaltogether(or, at best, to labelthem as "derivative").
In partthis is due
to the complexitiesthatinformthe processof puttingthese rightsintoopera-
tion. The suggestionof greaterfeasibilitythat attendsfirst-generation rights
because they stressthe absence ratherthan the presence of governmentis
somehow transformedinto a prerequisiteof a comprehensivedefinitionof
human rights,such that aspirationaland vaguelyassertedclaimsto entitle-
ment are deemed not to be rightsat all. The most forceful explanation,
however, is more ideologically or politicallymotivated. Persuadedthat
egalitarianclaimsagainstthe rich, particularly where collectivelyespoused,
are unworkablewithout a severe decline in libertyand quality (in part
because they involve state interventionfor the redistributionof privately
held resources),first-generation proponents,inspiredby the naturallaw and
laissez-fairetraditions,are partialto the view that human rightsare inher-
ently independentof civil society and are individualistic.
Conversely,second- and third-generationdefenders often look upon
first-generationrights,at leastas commonlypracticed,as insufficientlyatten-
tive to materialhumanneeds and, indeed, as legitimatinginstrumentsin ser-
vice to unjust domestic, transnational,and internationalsocial orders-
hence constitutinga "bourgeoisillusion."Accordingly,while not placing
first-generationrightsoutside their definitionof human rights,they tend to
assignsuch rightsa low statusand thereforetreatthem as long-termgoals
that will come to pass only with fundamentaleconomic and social transfor-
mations,to be realizedprogressivelyand fullyconsummatedonly sometime
in the future.
In sum, differentconceptions of rights,particularlyemergingconcep-

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268 WESTON

tions,containthe potentialforchallengingthe legitimacyand supremacynot

only of one another but, more importantly,of the political-socialsystems
with which they are most [Link] a consequence there is
sharpdisagreementabout the legitimatescope of human rightsand about
the prioritiesthat are claimed among them.
On final analysis, however, this liberty-equalityand individualist-
collectivistdebate over the legitimacyand prioritiesof claimedhumanrights
can be [Link] useful,certainly,insofaras it callsatten-
tion to the way in which notions of libertyand individualismcan be, and
have been, used to rationalizethe abuses of capitalism;and it is useful,too,
insofaras it highlightshow notionsof equalityand collectivismcan be, and
have been, alibisfor authoritarian [Link] the end it risksobscur-
ing at leastthree essentialtruthsthat mustbe taken into account if the con-
temporaryworldwide human rightsmovement is to be objectivelyunder-
stood.
First,one-sided characterizationsof legitimacyand priorityare 'very
likely, at least over the long term, to underminethe politicalcredibilityof
their proponentsand the defensibilityof their particularistic values. In an
increasinglyinterdependentand interpenetratingglobal community, any
humanrightsorientationthat is not genuinelyin supportof the widestpossi-
ble shapingand sharingof all valuesamongall humanbeingsis likelyto pro-
voke [Link] lasthalfof the 20th centuryis repletewith
examples.
Second, such characterizationsdo not accuratelymirrorbehavioural
reality. In the real world, despite differences in cultural traditionand
ideological style, there exists a risingand overridinginsistence upon the
equitableproductionand distributionof all basicvalues. U.S. [Link]
D. Roosevelt'sFourFreedoms(freedomof speech and expression,freedom
of worship,freedomfromwant, and freedomfromfear)is an earlycase in
point.A more recentdemonstrationwas the 1977 LawDay speech by then
U.S. Secretaryof State CyrusR. Vance, in which he announced the U.S.
government'sresolve"tomake the advancementof human rightsa central
partof our foreignpolicy"and defined humanrightsto include"therightto
be free from governmental violation of the integrity of the person, . .. the
rightto the fulfillmentof such vital needs as food, shelter,healthcare, and
education, [and]the rightto enjoyciviland politicalliberties."Essentially
.... societies tolerate, even promote, certain collectivistvalues;
individualistic
likewise, essentiallycommunal societies tolerate, even promote, certain
individualistvalues. Ours is a more-or-less,not an either-or,world.
Finally,none of the internationalhuman rightsinstrumentscurrentlyin
force or proposed say anythingwhatsoeverabout the legitimacyor rank-
orderingof the rightsthey address,save possiblyin the case of rightsthat by
international covenant are stipulated to be nonderogable and therefore,
arguably, more fundamental than others (for example, freedom from arbi-

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HumanRights 269

traryor unlawfuldeprivationof life,freedomfromtortureand frominhuman

or degradingtreatmentand punishment,freedom from slavery,freedom
from imprisonmentfor debt). There is disagreement,to be sure, among
lawyers,moralists,and politicalscientistsaboutthe legitimacyand hierarchy
of claimedrightswhen they treatthe problemof [Link]-
ple, some insistfirston certainciviland politicalguarantees,whereasothers
defer initiallyto conditions of materialand corporeal well-being. Such
disagreements,however, partakeof politicalagendasand have littleif any
[Link] the U.N. GeneralAssemblyhas repeatedlyconfirmed,
all human rightsform an indivisiblewhole.
In short, the legitimacyof differenthuman rightsand the priorities
claimedamongthem are necessarilya functionof context. Becausedifferent
people located in differentpartsof the world both assertand honour dif-
ferent human rightsdemandsaccordingto many differentproceduresand
practices,these issuesultimatelydepend on time, place, institutionalsetting,
level of crisis,and other circumstance.

HUMANRIGHTS:
INTERNATIONAL
AND ENFORCEMENT
PRESCRIPTION

Before WorldWar II

Eversince ancienttimes, but especiallysince the emergenceof the modern

statesystem,the Age of Discovery,and the accompanyingspreadof indus-
trialization and European culture throughout the world, there has
developed, for economic and other reasons,a unique set of customs and
conventions relativeto the humane treatmentof [Link] evolving
InternationalLaw of State Responsibilityfor Injuriesto Aliens, as these
customs and conventionscame to be called, may be understoodto repre-
sent the beginningof active concern for human rightson the international
plane. The foundingfathersof internationallaw-particularlyFranciscode
Vitoria(1486?-1546),Hugo Grotius(1583-1645), and Emmerichde Vattel
(1714-67)-were quick to observe that all persons, outlanderas well as
other, were entitledto certainnaturalrights;and they emphasized,conse-
quently,the importanceof accordingaliens fairtreatment.
Except,however,forthe occasionaluse of treatiesto securethe protec-
tion of Christianminorities,as early illustratedby the Peace of Westphalia
(1648),which concluded the ThirtyYears'Warand establishedthe principle
of equal rightsfor the RomanCatholicand Protestantreligionsin Germany,
it was not untilthe startof the 19thcenturythatactive internationalconcern
forthe rightsof nationalsbeganto [Link],in the centuryand a
half before World War II, several noteworthy, if essentially unconnected,
efforts to encourage respect for nationals by international means began to

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270 WESTON

shapewhattoday is calledthe InternationalLawof HumanRights(whichfor

historicalbut no theoreticallyconvincingreasonshas tended to be treated
separatelyfrom the InternationalLawof State Responsibilityfor Injuriesto
Aliens).
Throughoutthe 19thand early20th centuries,numerousmilitaryopera-
tions and diplomatic representations,not all of them with the purest of
motivesbut done nonethelessin the name of "humanitarian intervention"(a
customaryinternationallaw doctrine),undertookto protectoppressedand
persecutedminoritiesin the Ottoman Empireand in Syria,Crete, various
Balkancountries,Romania,and [Link] actions,firstat the
Congressof Vienna (1814-15) and later between the two world wars, a
series of treatiesand internationaldeclarationssoughtthe protectionof cer-
tain racial,religious,and linguisticminoritiesin centraland easternEurope
and in the [Link] same period,the movementto combat
and suppressslaveryand the slavetradefound expressionin treatiessooner
or laterinvolvingthe majorcommercialpowers, beginningwith the Treaty
of Paris (1814) and culminatingin the InternationalSlaveryConvention
(1926).
In addition,toward the end of the 19th centuryand continuingwell
beyondWorldWarII,the communityof nations,inspiredlargelyby persons
associatedwith what is now the InternationalCommitteeof the RedCross,
concluded a series of multilateraldeclarationsand agreementsdesignedto
temperthe conduct of hostilities,protectthe victimsof war, and otherwise
elaboratethe humanitarian law of [Link] sametime, firstwithtwo
multilaterallabourconventionsconcluded in 1906 and subsequentlyat the
initiativeof the InternationalLabourOrganisation(I.L.O.;established in
1919), a reformist-minded internationalcommunityembarkedupon a vari-
ety of collaborativemeasuresdirected at the promotionof human rights.
These included not only fields traditionallyassociatedwith labourlaw and
relations(forexample, industrialhealth,safety,and welfare;hoursof work;
annual paid holidays)but also-mainly afterWorld War II-in respect of
such core human rights concerns as forced labour, discriminationin
employmentand occupation,freedomof associationfor collective bargain-
ing, and equal pay for equal work.
Finally,during the interwar period, the Covenant establishingthe
Leagueof Nations(1919),while not formallyrecognizing"therightsof Man"
and while failingto lay down a principleof racial nondiscriminationas
requestedby Japan(owingmainlyto the resistanceof GreatBritainand the
United States), neverthelesscommitted the League'smembersto several
human rightsgoals:fairand humaneworkingconditionsfor men, women,
and children;the execution of agreementsregardingtrafficin women and
children;the preventionand control of disease in mattersof international
concern; and the just treatment of native colonial peoples. Also, victorious
powers who as "mandatories" were entrusted by the League with the

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HumanRights 271

tutelageof colonies formerlygovernedby Germanyand Turkeyaccepted as

"asacredtrustof civilization"responsibilities
for the well-beingand develop-
ment of the inhabitantsof those territories.(The arrangementwas carried
over into the U.N. trusteeshipsystem and had serious repercussionsmore
than a halfcenturylaterin relationto the mandateentrustedto SouthAfrica
over the territoryof South West Africa[now Namibia].)
As importantas these pre-World War 11human rightseffortswere,
however, it was not untilafterthe war-and the Nazi atrocitiesaccompany-
ing it-that active concern for humanrightson the internationalplanetruly
came of age. In the proceedingsof the InternationalMilitaryTribunalat
NUirembergin 1945-46, German high officials were tried not only for
"crimesagainstpeace"and "warcrimes"but also for "crimesagainsthuman-
ity"committedagainstany civilianpopulationeven if in accordancewiththe
laws of the countrywhere [Link] tribunal,whose establish-
ment and rulings subsequently were endorsed by the U.N. General
Assembly, applied a cautious approach to allegationsof "crimesagainst
humanity,"it nonethelessmade the treatmentby a state of its own citizens
the subjectof internationalcriminalprocess.

Human Rightsin the United Nations

The Charterof the United Nations (1945) begins by reaffirminga "faithin

fundamentalhumanrights,in the dignityand worthof the humanperson,in
the equal rightsof men and women and of nationslargeand small."Itstates
thatthe purposesof the UnitedNationsare, amongotherthings,"todevelop
friendlyrelationsamong nationsbased on respectfor the principalof equal
rightsand self-determinationof peoples... [and]to achieve international
co-operation . . . in promoting and encouraging respect for human rights
and for fundamentalfreedoms for all without distinctionas to race, sex,
language,or religion... ." And, in two key articles,all members"pledge
themselves to take joint and separate action in cooperation with the
Organization"for the achievementof these and [Link] to be
noted, however,thata proposalto ensurethe protectionas well as the pro-
motion of human rightswas explicitlyrejectedat the Charter-drafting San
FranciscoConference establishingthe United Nations. Additionally,the
Charterexpressly providesthat nothing in it "shallauthorizethe United
Nationsto intervenein matterswhich are essentiallywithin the domestic
jurisdiction of any state . . ," except upon a Security Council finding of a
"threatto the peace, breachof the peace, or act of aggression."Moreover,
although typical of major constitutive instruments,the Charteris con-
spicuously given to generality and vagueness in its human rights clauses,
among others.

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272 WESTON

Thus, not surprisingly,the reconciliationof the Charter'shuman rights

provisionswith the Charter'sdraftinghistoryand its "domesticjurisdiction"
clause has given rise to not a little legal and [Link]
authoritieshave argued that, in becoming partiesto the Charter,states
accept no more than a nebulous promotionalobligationtoward human
rightsand that, in any event, the UnitedNationshas no standingto insiston
human rightssafeguardsin member states. Others insistthat the Charter's
humanrightsprovisions,beingpartof a legallybindingtreaty,clearlyinvolve
some element of legal obligation;that the "pledge"made by states upon
becoming partyto the Charterconsequentlyrepresentsmore than a moral
statement; and that the "domesticjurisdiction"clause does not apply
because human rights,whateverisolationthey may have "enjoyed"in the
past, no longercan be consideredmatters"essentiallywithinthe domestic
jurisdiction" of states.
When all is said and done, however, it is clearfromthe actualpractice
of the UnitedNationsthat the problemof resolvingthese opposingconten-
tions has proved somewhat less formidablethan the statementsof govern-
ments and the opinionsof scholarsmightlead one to assume. Neitherthe
Charter'sdraftinghistorynor its "domesticjurisdiction" clause nor, indeed,
its generalityand vagueness in respect of human rightshas preventedthe
United Nations-on the basis of individual petitions, statements from
witnesses, state complaints,and reportsfrom interestednongovernmental
organizations-from investigating, discussing, and evaluating specific
[Link] have they preventedit fromrecommendingor
prescribingconcrete action in relationto them, at least not in the case of "a
consistentpatternof gross violations"of human rights,providedthere has
been a majoritypersuasiveenough to force the action desired (as in the
impositionby the SecurityCouncil in 1977 of a mandatoryarmsembargo
againstSouthAfrica).Of course, governmentsusuallyare protectiveof their
sovereignty(or domesticjurisdiction).Also, the U.N. organsresponsiblefor
the promotionof humanrightssufferfrommost of the same disabilitiesthat
afflictthe United Nationsas a whole, in particularthe absence of suprana-
tionalauthorityand the presenceof [Link], it cannot
be expected that U.N. actionsin defense of humanrightswill be, normally,
eitherswiftor [Link],assumingsome political
will, the legalobstaclesto U.N. enforcementof humanrightsare not insur-
mountable.
Primaryresponsibility forthe promotionof humanrightsunderthe U.N.
Charterrests in the General Assembly and, under its authority,in the
Economicand Social Counciland its subsidiarybody, the Commissionon
HumanRights,an intergovernmental body that servesas the U.N.'scentral
policy organ in the human rightsfield. Much of the commission'sactivity,
initiated by subsidiary working groups, is investigatory, evaluative, and advi-
sory in character, and the commission annually establishes a working group

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HumanRights 273

to consider and make recommendationsconcerning alleged "grossviola-

tions"of humanrightsreferredto it by its Sub-Commission on Preventionof
Discrimination and Protectionof Minorities(on the basisof communications
fromindividualsand groups,pursuantto Resolution1503 [1970]of the U.N.
Economicand SocialCouncil,and sometimeson the basisof investigations
by the subcommissionor one of its workinggroups).Also, the commission
has appointedspecial representativesand envoys to examinehumanrights
situationson an ad hoc basis,who, in the course of preparingtheirreports,
examine reliableinformationsubmittedin good faith, interviewinterested
persons, or make on-site inspectionswith the cooperationof the govern-
ment concerned.
In addition,the commission,togetherwith other U.N. organssuch as
the InternationalLabourOrganisation(I.L.O.),the United Nations Educa-
tional, Scientificand CulturalOrganization(UNESCO),and the United
NationsCommissionon the Statusof Women, draftshumanrightsstandards
and has prepared a number of internationalhuman rightsinstruments.
Amongthe most importantof these arethe UniversalDeclarationof Human
Rights (1948), the InternationalCovenant on Civil and Political Rights
(togetherwith its Optional-Protocol;1976), and the International
Covenant
on Economic,Social and CulturalRights(1976).Collectivelyknown as the
InternationalBill of Rights,these three instrumentsserve, among other
things, as touchstones for interpretingthe human rightsprovisionsof the
U.N. Charter.

The UniversalDeclarationof [Link] catalogof rightsset out

in the UniversalDeclarationof HumanRights,which was adopted without
dissentby the GeneralAssemblyon 10 December1948, is scarcelyless than
the sum of all the importanttraditionalpoliticaland civil rightsof national
constitutionsand legalsystems,includingequalitybeforethe law;protection
againstarbitraryarrest;the rightto a fairtrial;freedomfrom ex post facto
criminallaws;the rightto own property;freedom of thought,conscience,
and religion;freedom of opinion and expression;and freedomof peaceful
assemblyand [Link] enumeratedare such economic, social, and
culturalrightsas the rightto work, the rightto formand join trade unions,
the rightto restand leisure,the rightto an adequatestandardof living,and
the rightto education.
The UniversalDeclaration,it mustbe noted, is not a [Link] meant
to proclaim"a common standardof achievement for all peoples and all
nations" rather than enforceable legal obligations. Nevertheless, partly
because of an 18-yeardelay between its adoptionand the completionfor
signatureand ratificationof the two covenants, the UniversalDeclaration
has acquireda statusjuridicallymore importantthan originallyintended. It
has been widely used, even by national courts, as a means of judging com-
pliance with human rights obligations under the U.N. Charter.

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274 WESTON

TheInternational Covenanton Civiland PoliticalRightsand the Optional

[Link] civil and politicalrightsguaranteedby this covenant, which
was opened for signatureon 19 December 1966, and enteredinto force on
23 March1976, incorporatealmostall of those proclaimedin the Universal
Declaration,includingthe rightto [Link] the cove-
nant, each state partyundertakesto respectand to ensureto all individuals
withinits territoryand subjectto itsjurisdictionthe rightsrecognizedin the
covenant "withoutdistinction of any kind, such as race, colour, sex,
language,religion,politicalor other opinion, nationalor social origin,prop-
erty, birthor other status."Some rightslistedin the UniversalDeclaration,
however,such as the rightto own propertyand the rightto asylum,are not
includedamong the rightsrecognizedin the covenant. Similarly,the cove-
nant designates a number of rightsthat are not listed in the Universal
Declaration,among them the rightof all peoples to self-determination and
the right of ethnic, religious,or linguisticminoritiesto enjoy their own
culture, to profess and practicetheir own religion,and to use their own
[Link] the extent that the UniversalDeclarationand the covenant
overlap,however,the latteris understoodto explicateand help interpretthe
former.
In addition,the covenantcallsfor the establishmentof a HumanRights
Committee,an internationalorgan of 18 personselected by the partiesto
the covenant, serving in their individualexpert capacity and charged to
study reportssubmitted by the state partieson the measuresthey have
adopted that give effect to the rights recognized in the covenant. As
between the statepartiesthat have expresslyrecognizedthe competence of
the committeein this regard,the committeealso may respondto allegations
by one statepartythatanotherstatepartyis notfulfillingitsobligationsunder
the covenant. Ifthe committeeis unableto resolvethe problem,the matter
is referredto an ad hoc conciliationcommission,which eventuallyreports
its findingson all questionsof fact, plus its views on the possibilitiesof an
[Link] become partyto the OptionalProtocol
furtherrecognizethe competence of the HumanRightsCommitteesimilarly
to considerand act upon communicationsfromindividualsclaimingto be
victimsof covenant violations.

TheInternational Covenanton Economic,Socialand [Link]

as the InternationalCovenanton Civiland PoliticalRightselaboratesupon
mostof the civiland politicalrightsenumeratedin the UniversalDeclaration
of Human Rights,so the InternationalCovenanton Economic,Socialand
CulturalRightselabortesupon most of the economic, social, and cultural
rightsset forthin the UniversalDeclaration:the rightto work;the rightto just
and favourableconditions of work; trade union rights;the rightto social
security; rights relating to the protection of the family; the right to an ade-
quate standard of living;the rightto health; the rightto education; and rights

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HumanRights 275

relatingto cultureand science. UnlikeitscompanionInternational Covenant

on Civil and PoliticalRights,however, this covenant is not geared, with
modest exception, to immediateimplementation,the state partieshaving
agreed only "totake steps"toward"achievingprogressivelythe full realiza-
tion of the rightsrecognizedin the ... Covenant,"and then subjectto "the
maximumof [their]availableresources."The covenant is essentiallya "pro-
motional convention," stipulatingobjectives more than standards and
requiringimplementationover time ratherthan all at once. One obligation
is, however,subjectto immediateapplication:the prohibitionof discrimina-
tion in the enjoymentof the rightsenumeratedon groundsof race, colour,
sex, language,religion,or politicalor otheropinion;nationalor socialorigin;
property;and birth or other status. Also, the internationalsupervisory
measuresthat applyto the covenantoblige the state partiesto reportto the
U.N. Economicand SocialCouncilon the steps they have adoptedand the
progressthey have made in achievingthe realizationof the enumerated
rights.
Other U.N. Human [Link] two above-mentioned
covenants are by no means the only human rightstreaties drafted and
adopted under the auspices of the United Nations. Indeed, because there
are fartoo manyto detaileven in abbreviatedfashion,it mustsufficesimply
to note that they addressa broad rangeof concerns, includingthe preven-
tion and punishmentof the crime of genocide; the humanetreatmentof
militaryand civilianpersonnelin time of war;the statusof refugees;the pro-
tection and reductionof statelesspersons;the abolitionof slavery,forced
labour,and discriminationin employmentand occupation;the elimination
of all formsof racialdiscriminationand the suppressionand punishmentof
the crime of apartheid;the eliminationof discriminationin education;the
promotionof the politicalrightsof women and the eliminationof allformsof
discriminationagainstwomen; and the promotionof equalityof opportunity
and treatmentof migrantworkers.(Forparticularagreements,see Human
Rights:A Compilationof International Instruments,3rded. [1978],published
by the United Nations.)

U.N. Human [Link] addition to developing human

rights standards and procedures through treaties, the U.N. General
Assembly,impressedby the impactof the UniversalDeclarationof Human
Rights,also has resortedto the proclamationof declarationsas a means of
[Link] the formof a resolutionof the General
Assembly,which technicallyis not bindingon the member states in the
sense of a treaty,a declaration,particularly
when it enunciatesprinciplesof
great and solemn importance,may neverthelesscreate withinthe interna-
tional community strong expectations about authority and control. Perhaps
the best known examples subsequent to the Universal Declaration, while

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276 WESTON

not devoted exclusivelyto humanrightsconsiderations,are the Declaration

on the Grantingof Independenceto ColonialCountriesand Peoples(1960)
and the Declarationon Principlesof InternationalLawConcerningFriendly
Relationsand Co-OperationAmong Statesin Accordancewith the Charter
of the United Nations(1970).

Human Rightsand The HelsinkiProcess

Post-WorldWarIIinternationalconcern for humanrightshas been evident

at the global level outside the United Nations as well as within it, most
notablyin the proceedingsand aftermathof the Conferenceon Securityand
Cooperationin Europe,convened in Helsinki,Finland,on 3 July1973, and
concluded there (aftercontinuingdeliberationsin Geneva) on 1 August
1975. Attended by representativesof 35 governmentsthat included the
NATOcountries,the WarsawPact nations,and 13 neutraland nonaligned
Europeanstates, the conference had as its principalpurpose a mutually
satisfactorydefinition of peace and stability between East and West,
previouslymade impossibleby the periodof the [Link],the
Soviet Union was concerned with achievingrecognitionof itswesternfron-
tiersas establishedat the end of WorldWar II.
There was littletangible, however, that the Western powers, with no
realisticterritorialclaimsof theirown, could demand in return,and accord-
ingly they pressedfor certainconcessions in respect of human rightsand
freedomof movementand informationbetween Eastand [Link],at the
outset of the FinalAct adopted by the conference, in a Declarationof Prin-
ciples Guiding Relations Between States, the participatinggovernments
solemnly declared "theirdeterminationto respect and put into practice,"
alongside other "guiding"principles,"respect[for]human rightsand fun-
damentalfreedoms,includingthe freedomof thought,conscience, religion
or belief"and "respect[for]the equal rightsof peoples and theirrightto self-
determination."It was hoped that this would mark the beginning of a
liberalizationof authoritarianregimes.
Fromthe earliestdiscussions,however, it was clear that the Helsinki
FinalActwas not intendedas a legallybindinginstrument."Determination to
respect"and "put into practice"were deemed to express moral com-
mitmentsonly, the Declarationof Principleswas said not to prescribeinter-
national law, and nowhere did the participantsprovide for enforcement
[Link] the other hand, the Declarationof Principles,includingits
human rightsprinciples,always has been viewed as at leastconsistentwith
internationallaw. Additionally,the fourth of four sections (commonly
known as "baskets")of the FinalAct providesfor the holding of periodic
review conferences in which the participatingstates are called upon "to con-

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HumanRights 277

tinue the multilateralprocess initiatedby the Conference."Butmost impor-

tantly, ever since their adoption, the FinalAct's human rightsprovisions
have served as importantand widely accepted yardsticksfor external
scrutinyand appropriaterecourseto perceivedviolations.
In sum, like the UniversalDeclarationof Human Rightsand other
importanthuman rightsdeclarationsof the U.N. General Assembly,the
HelsinkiFinalAct, thoughnot a treaty,has createdwidespreadexpectations
about properhumanrightsbehaviourand, consequentlyit has inspiredand
facilitatedthe monitoringof [Link] cordiality
between Eastand West,the HelsinkiProcessmay be saidat leastto hold out
the potentialfor modestlybeneficialresultsin the human rightsarena.

RegionalDevelopments

Actionfor the internationalpromotionand protectionof human rightshas

proceeded at the regionallevel in Europe,the Americas,Africa,and the
[Link] the firstthree of these regions,however,have gone so far
as to create enforcementmechanismswithin the frameworkof a human
[Link] PermanentArabCommissionon HumanRights,founded
by the Councilof the Leagueof ArabStatesin September1968, but since
then preoccupiedby the rightsof Arabslivingin Israeli-occupiedterritories,
has not broughta proposed ArabConventionon Human Rightsto a suc-
cessful conclusion and so far has tended to functionmore in termsof the
promotionthan the protectionof human rights.

[Link] 4 November1950, the Councilof

Europeagreed to the EuropeanConventionfor the Protectionof Human
Rightsand FundamentalFreedoms,the substantiveprovisionsof which are
based on a draftof what is now the InternationalCovenanton Civiland
[Link] its five additionalprotocols,this convention,
which entered into force on 3 September 1953, representsthe most
advancedand successfulinternationalexperimentin the field.A companion
instrument,similarto the laterInternationalCovenanton Economic,Social
and CulturalRights,is the EuropeanSocialCharter(1961),whose provisions
are implementedthroughan elaboratesystemof controlbasedon the send-
ing of progressreportsto, and the appraisalof these reportsby, the various
committees and organs of the Council of [Link] instrumentalities
created under the Europeanconvention are the EuropeanCommissionof
Human Rightsand the EuropeanCourtof Human Rights,the membersof
each sittingin their individualexpert [Link] convention also makes
use of the governmentalorganof the Councilof Europe,the Committeeof
Ministers.

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278 WESTON

The commissionmay receivefromany statepartyto the conventionany

allegationof a breach of the convention by anotherstate [Link], pro-
vided its legalcompetence to do so has been formallyrecognized,the com-
mission may receive petitions from any person, group of individuals,or
nongovernmentalorganizationclaimingto be the victimof a violationof the
convention. In such cases, the commissionis chargedto ascertainthe facts
and to place itselfat the disposalof the partiesto secure "afriendlysettle-
ment... on the basis of respectfor Human Rights."If no such solution is
reached,the commissionis called upon to drawup a report,statingitsopin-
ion as to whetherthe facts disclose a breach,and to recommendactionto
the Committeeof Ministers,includingreferralof the case to the European
Courtof HumanRights.
The jurisdictionof the court extends to cases referredto it by a state
partywhose nationalis allegedto be a victimof a violation,by a state party
againstwhom a complainthas been lodged, and by any state partythatmay
have referredthe case to the [Link] court may not, however,
receive a complaintby an [Link],it may receive
statecomplaintsonly if the defendantstatehas accepted [Link]
may be done ad hoc fora particularcase or by a generaldeclarationaccept-
ing the compulsoryjurisdictionof the court. In either event, and in cases
referredto it by the Europeancommissionas well, the judgmentof the court
is [Link] the other hand, if a questionis not or cannot be referredto the
court, then the Committeeof Ministersof the Councilof Europemakes a
finaldecision on human rightscomplaints.
The instrumentalities of the Europeanconventionhave, over the years,
developed a considerablebody of case law on questions regulatedby the
convention; and the provisionsof the convention are deemed, in some
Europeanstates,partof domesticconstitutionalor statutorylaw. Wherethis
is not the case, the statepartiesto the conventionhavetakenothermeasures
to make their domestic laws conformwith their obligationsunderthe con-
vention.

Inter-AmericanHuman RightsSystem. In 1948, concurrent with its

establishmentof the Organizationof AmericanStates (O.A.S.),the Ninth
Pan-American Conferenceadoptedthe AmericanDeclarationon the Rights
and Dutiesof Man,an instrumentsimilarto, but cominga fullseven months
before,the UniversalDeclarationof the UnitedNationsand settingout the
dutiesas well as the rightsof the individualcitizen (athrowback,perhaps,to
Greco-Romanand medievalnaturallaw theories).Subsequently,in 1959, a
meeting of consultation of the American Ministersfor Foreign Affairs
created, withinthe frameworkof the O.A.S., the Inter-American Commis-
sion on HumanRights,which has since undertakenimportantinvestigative
activities concerning human rights in the Americas. Finally, in 1969, the
Inter-AmericanSpecialized Conference on Human Rights, meeting in San

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HumanRights 279

Jose, Costa Rica, adopted the AmericanConvention on Human Rights,

which, among other things, made the existingInter-American Commission
on Human Rights an organ for the convention's implementationand
establishedthe Inter-American Court of Human Rights,which sits in San
Jose.
Both the substantive law and the procedural arrangementsof the
Americanconvention,which entered into force in 1978, are stronglyinflu-
enced by the U.N. covenantsand the Europeanconvention,and they were
draftedalso with the EuropeanSocialCharterin mind. Underthe American
convention, however, unlikeits U.N. and Europeanpredecessors,the right
of petition by individuals,groups of individuals,and nongovernmental
organizationsoperates [Link] the U.N. system, the rightof
petitionappliesonly when the state concerned has become a partyto the
OptionalProtocolto the InternationalCovenanton Civiland PoliticalRights,
and under the Europeansystem a special declarationby the states con-
cerned is [Link] the other hand, again in contrastto the European
system(butnot the U.N. system),interstatecomplaintsunderthe American
convention operate only among states that have expresslyagreed to such
procedure.

[Link] 1981, followingnumerouspleasby the

U.N. Commissionon Human Rights,interestedstates, nongovernmental
organizations,and others dating as far back as 1961, the Eighteenth
Assemblyof Heads of Stateand Governmentof the Organizationof African
Unity (O.A.U.),convening in Nairobi,Kenya,adopted the AfricanCharter
on Human and Peoples' [Link] charterprovidesthat it will become
effective three months after ratificationor adherence of a majorityof the
memberstatesof the O.A.U., numbering50 as of 31 December1983. Bythe
mid-1980s,the 26 ratificationsor adherencesneeded had not been reached
and the charterwas, therefore,not yet in force.
Likeits Europeanand Americancounterparts,the Africancharterpro-
vides for the establishmentof an AfricanCommissionon Human and
Peoples'Rights,with both promotionaland protectivefunctionsand with no
restrictionon who may file a complaint with the commission (signatory
states, individuals,groups of individuals,and nongovernmentalorganiza-
tions, whetheror not they are victimsof the allegedviolation).Incontrastto
the Europeanand Americanprocedures, however, concerned states are
encouraged to reach a friendlysettlementwithout formallyinvolvingthe
investigativeor conciliatory mechanisms of the commission. Also, the
Africancharterdoes not call for a [Link]
traditions,it is said, emphasize mediation, conciliation, and consensus
rather than the adversarialand adjudicative procedures common to
Western legal systems.
Four other distinctive features of the African charter are especially

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280 WESTON

[Link],it providesfor economic, social, and culturalrightsas well

as civil and political rights. In this respect it bears resemblanceto the
Americanconvention, but is distinctivefrom the Europeanconvention.
Next, in contrast to both the Europeanand American conventions, it
recognizes the rights of groups in addition to the family, women, and
[Link] aged and the infirmare accordedspecialprotectionalso, and
the rightof peoples to self-determination is elaboratedin the rightto exis-
tence, equality, and nondomination. Third,it uniquelyembracestwo third-
or
generation, "solidarity," rights belongingto all peoples":the rightto
"as
economic, social, and culturaldevelopment and the rightto nationaland
internationalpeace and [Link],it is so farthe onlytreatyinstrument
to detailindividualdutiesas well as individualrights-to the family,society,
the state, and the internationalAfricancommunity.

International Human Rights in Domestic Courts

Usingdomesticcourtsto clarifyand safeguardinternationalhumanrightsis

a new and stillevolvingapproachto humanrightsadvocacy. In additionto
the inevitable interpretativeproblems of applying conventional and
customarynormsthat are fashionedin multiculturalsettings,controversial
theoriesabout the interrelationof nationaland internationallaw plus many
"actof State,"and
proceduraldifficulties-carryingsuch labelsas "standing,"
the "politicalquestionsdoctrine"- burdenthe partyanxiousto invokeinter-
national human rightsnorms in the domestic context. To be sure, con-
siderableprogresshas been made, as perhaps best evidenced in the far-
reachingdecision handed down by the U.S. Courtof Appealsfor the 2nd
in whichthe courtheldthatthe inter-
v. Pena-Irala,
Circuitin 1980in Filartiga
national prohibitionof torture is unequivocallyestablishedin the law of
nationsand thereforeto be honoured in U.S. courts. But as human rights
scholar Richard Lillich has cautioned, ".. .in all likelihood the [national]
judiciarywill haveto experiencemuch more internationalhumanrightslaw
consciousness-raisingbefore [wholesale resistanceto its domestic applica-
tion] is rejected."

CONCLUSION

Whateverthe currentattitudesand policies of governments,the realityof

populardemandsfor humanrights,includingbothgreatereconomic justice
and greaterpoliticalfreedom,is beyond debate. A deepeningand widening
concern forthe promotionand protectionof humanrights,hastenedby the
self-determinist impulse of a postcolonial era, is now unmistakably woven
into the fabric of contemporary world affairs.

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HumanRights 281

Substantiallyresponsiblefor this progressivedevelopmenthas been, of

course,the workof the UnitedNations,itsalliedagencies,and such regional
organizationsas the Councilof Europe,the Organizationof AmericanStates,
and the Organizationof AfricanUnity. Also visiblyhelpful,however, par-
ticularlysince the early 1970s, have been three other factors:the public
advocacyof humanrightsas a key aspect of nationalforeignpolicies, made
initiallylegitimateby the exampleof U.S. [Link];the emergence
and proliferationof activistnongovernmentalhuman rightsorganizations
such as Amnesty International(winnerof the Nobel Prize for Peace for
1977), the InternationalCommissionof Jurists,and diversechurch-affiliated
groups;and a worldwideprofusionof coursesand materialsdevoted to the
study of human rightsboth in formal and informaleducationalsettings.
Indeed, in lightof the weaknessesthat presentlyinhereat the intergovern-
mentallevel of globaland regionalorganization,it is likelythateach of these
factorswill play an increasinglyimportantrole in the future.
To be sure,formidableobstaclesattendthe endeavoursof humanrights
policymakers,activists,and [Link] implementationof international
human rightslaw depends for the most part on the voluntaryconsent of
nations;the mechanismsforthe observanceor enforcementof humanrights
are yet in their [Link], it is certainthat a palpableconcern for the
advancementof human rightsis here to stay, out of necessityno less than
out of [Link] Nobel laureateand politicaldissidentAndreySakharov
once wrote from his internalexile in the Soviet Union: "Theideology of
human rightsis probablythe only one which can be combined with such
diverseideologiesas communism,social democracy,religion,technocracy
and those ideologieswhich may be describedas nationaland [Link]
can also serve as a footholdfor those ... who have tiredof the abundance
of ideologies, none of which have brought.., .simple human happiness.
The defense of humanrightsis a clearpathtowardthe unificationof people
in our turbulentworld, and a path towardthe reliefof suffering."

BIBLIOGRAPHY

Documentary:United Nations, Human Rights:A Compilationof Interna-

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282 WESTON

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HumanRights 283

U. Umozurike,"TheAfricanCharteron Human and Peoples' Rights,"77

Am. i. Intl L. (1983).
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