Central India Law Quarterly
The Concepts Of Human Rights THE CONCEPTS OF HUMAN RIGHTS
(HISTORICAL & JURAL DEVELOPMENT)
Dr. Rajkishore Pathak·
A- I. Conceptual Development
The word "human rights" rot the international flavour only after the
league of Nations and United Nations charter was framed otherwise
primarily it was the subject of domestic. Jurisprudence 1 of States with
various understandings and misunderstandings. What should be the
nature of human rights is still a matter of debate among different sets of
countries. Just after the Universal Declaration ot Human Rights 1948 and
its adoption by a large number of States.2 The cold war started and sharp
ideological. deferences emersed about the nature of human rights. The
Westem view essentially based on liberalism with its emphasis on
freedom of speech, right to a fair trial, right to political participation and so
on where as the Non-Western perception was that there could be in a .
given society alternative conception of human dignity that might be
sought through devices other than human rights. Cultural difference are
responsible for such fundamental deviation even from Universal Human
Rights standard. Nowadays China is the most forceful advocate of this
approach to the human rights problem. Secondly, western looks"for this
civil and political rights in human rights. Whereas Non-Western insist on
right to education and above all right to development. Difference between
two point of views is so wide ·enough" that some of the western countries
even refuse to recognize 'development' as a Human Rights.3
2. This was the reason behind adopting two covenants spearately
namely Covenant on Economic. Social and Cultural rights 1966 and the
Convention on Civil and Political Rights 1966 which indicated the
distinction had to be drawn between two different classes of Fundamental
Rights. The social an(f economic right although they appear in the
Universal Declaration, to be less universal in the sense that they
constitute Standards to be attained depending upon the level of economic
Reader in Law, Dean Dayal Upadhyay. Gorkhpur University gorakhpur.
1. For details see "Human Rights and United Nations· by .Subhash Chandra Khare.
Metropolitan Book Co. Pvt. Ltd. New Delhi 1997.
2. Universal Declaration of Human Rights adopted by the General Assembly on Dec.
10.1948 by 48 votes on 8 abstentions the Universal Declaration of Human Right.
3. See. V.N. Godgil. Times of India.
234 CENTRAL INDIA LAW QUARTERLY [2000
development of each country and they -requ.ire positive action from the
Government whereas civil and political rights are concern of European
Social Charter.f j'
3. If we trace the history of individual rights we see that the primitive
society's rights were absolute and inherent in- them. it was neither
guaranteed nor imparted to them by any one. It can be said thatthey had
enjoyed almost all the civil and pt;litical rights but theis absolute right had
made them like anintals. This abSolutefr'eedbm became curse for them.
Consequence was the emergence of the concept of "Social contract
theory". The peoplelhemselves agreed to contribute their freedoms to a
"common will..··which could protect them from ': the barbaric consequences
of absolute freedom. As the primitive man had no notion of Fundamental
Rights even though he did have number of freedoms which 'no civilized
man can ever think of but in a society where refinement did not exist.
These freedoms indicated his clOseness to other animafs. ·In other words;
in the IJnmttive ~oCietv which was purely unorqanized, these freedOms
had· no meaning and no relevance. I he tact ot the matter is that, in that
society the social need tor liberty and freedom did not exist.
4. It is unique teatureot the history ot the development ot pol/tical
nstitutions ~t1~t the progress towards and organiZed society was not a
fTlV.$:",nent towards the attainment of Rights, Fundamental or otherwise.
Bat towards the suppression of the absolute unrestricted and anarchic
treedoms ot the primitive man. It we take a hurried look at the teudal
society-.We may find that there was a total negation of the Fundamental
Rights of men and oitizens, there In the social structure was based on a
relationship of tenure organized in a hierarchical gradation and at the top
ot the pyramid stOOd the sovereign; but even . thechiet and lords
exercised almost total control over the Iiteahd liberty of there tenants. In
other wOrds,the right were confined only to a few privilezed persons and
the majorityofthe people had no right of freedOn'lS. Thesovereigflhad
not merely the 'absolute'law making power but also the enforcement of
the iawdepencieci 9nhis whimsand fancy. in the worcis of Henry Maine
"there was a change from status to contract." It also meant the victory of
. the free contract indispensable to indusirialand capitalist society Which
. ! · · · 1
4. ~ee. <3rUStlaran Varanclam Human Htghts:t:OnStituttonal Maf Rights in
America and the Declaration des 'droitstde I homne et du -citoven in
France-values which' has inspired them in the struggle against their
respective. ancient regimes. Work of the philospher's propounded and
influenced the oevelopement of political theory during that period. The
240 CENTRAL INDIA LAW QUARTERLY [2000
Great Am~rican and Freanch texts of 1776. 1789 and 1791 for the first
time set forth principles which are instantly recognizable as propositions
of modern human rights law, properly so called. In view of Paul Sieghart,
those principles may be summarized as follows.
1. The principle of universal inherence:
Every human being has certain rights which are neither conferred
nor earned or acquired but inherent in him by virtue of his humanity alone.
2. The Principle of Inalienability
No human 'being can be deprived of any of those rights, by the act
of any ruler or even by his own act or in a democracy ever by the will of
the majority of the sovereign people.
,3. The Rule of Law
No one is above the law and rights and conflicts must be resolved
by the consistent, independent and impartial application of just laws in
accordance with just procedures. 14
Where as Sir Francis Vallat in his book "An Introduction to the
Study of Human Rights" laid emphasis on only two points: One is the
principle of non-discrimination and second is the principle of self
12. In this way grounds of those principle some see in the 'Natural
taw;' Roman in ius-gentium and so was the theory of "social contract".
Practically it was a move for the replacement of signIe institution of
monarchy by those of a democratic republic and rights .listed in that time
took the form of 'freedin'. Method of written constitution was adopted
. which described the catalogue of Fundamental Right especially by United
States of America and French Republic. Since then that method has been
adopted by virtuaUy every other nation in the world 16 , and the constitution
14. Supra, fl. 11 p. b to iii.
15. Sir Francis Vallat, An, Introduction to the study of Human Rights, Europa Publications:
London, 1970, Pages VII to IX.
1 ti. I nettrst to tollow tne I-rencn ana U.:S. example ware the Netnel1anas (' fl:lH), :sweoen
(1809), Spain (1812), Norway (1848). Belgium (1831), Uberia(1847), Sardinia (18481,
Denmarks (1849) and Frussia (1850). Based on the supran.11 pages 9.
VoI.XIII] THE CONCEPTS OF HUMAN RIGHTS 241
occupies the highest rank in the hierarchy of laws. Primarily freedoms or
political rights were free from state intervention but upto end of eighteenth
century it was felt that it is not enough for a man to live with human dignity
but social, cultural and economic right too are the part of human rights for
which positive action of the state is needed. This was the consequence of
the political theory of socialism, which advocated the active· intervention
of the State Particularly to redress in justice and inequality, especially of a
social or economic kind. Non such rights are also included as
Fundamental Rights in the Constitutions of almost all the civilized
countries. These are the historical as well·jural development to achieve
the Human right traget of mankind. .
II. DeYe!opme"t of !"ternat!o"a! Huma" R!ght9 law
13. The concept of Human Rights basically emerged in the field of
domestic legislation17: the real foundation of human rights law, in
constitutional law dates back to the 17Jh century. Initiation of Human
Rights law in International Law started from the Doctrine of the legitimacy
of "humanitarian intervention" in nineteenth century: particularly in the
cases of atrocities by the State on their own subjects which 'shocked the
conscience of mankind', this Qave birth to a limited exception to the
doctnne ot national sovereIgnty. ~ntish liberal politician Gladstone
succeeded in promoting a foreign policy designed to support the freedom
of the people of Bulgaria (them ottoman Empire) by invoking the doctrine
of 'humanitarian intervention'. This process continued slowly till the first
world war. Following First World War. Minority Treaties were concluded to
protect the rights of Linguistic and ethnic minorities within the new state
territories created by the treaties of Versailles and St. Germain. These
were the milestone of modem International human rights instruments.
Especially Article 4 of the German-Polish convention on Upper Silesia of
1922 which guaranteed its individual right to life, liberty, free exercise of
religion and equal treatment before the Law even against their State. The
same period was the baginning of international collaboration especially in
the fields of specific humanitarian 'fields': abolition of national slavery and
International slave trade, consequently in 1885 the General Act of the
Berlin Conference on Central Africa was able to affirm. that t~ading in
siaves is forbidden in coniormity with the principies oi internationai Law,
tater under the. influence of Red Cross movement Hague.conventions
17. For details see, Subash Chandra Khare "Human Rights and United Nations",
Metropolitan Book Co. Pvt. Ltd., New Delhi, 1977, p.6
242 CENTRAL INDIA LAW QUARTERLY [2000
and Geneva Conventions were adopted to delimit and regulate the
sufferings and treatment of the prisoners ·of war. During continuance in
1919 International Labour Organ~tion was established to protect the
workers from gross exploitation and improve their working condition.
Even before 1.l.0 two multilateral labour conventions concluded in Berne
and Switzerland in 1906 were in exixtence to protect the night work of
women and against use of phosphorous in manufacturing of matches 18 .
14. However League of Na.tions was. in constant watch of the
humanitarian matter and some aspects of .human rights. Slavery
conventions of 1926, a true International human right treaty, was one of
its burning example. In the meantime in 1928 Academic Diplomatique
International had passed a resolution on the recognition· of Human rights
by all states. In 1929 Institutes of International Rights of Man. In 1932
International law Association drafted a number of.principles for the.future
development of international law in which a guarantee for classic human .
rights by all states was included 19 • .
15. However, Natzi persecution after 1933 and wide spread
. destruction of world war II impulsed new move for the establishment of
respect for human rights as a corner stone of post world war20; This was
the period of great conventions among free countries; and among
individualS about the human rights. NewspaperS published a series of
articles on human rights, discussions were exchanged through Daily.
Herald in 1940 resulted in the formulation of a Draft Committee under the
chairmanship of Viscount Sankey. This draft was published in the daily
Herald of April 20. 1940 as a declartion of the Right of man. "
;16. On January 6, 1941, President Roosevelt of United states in his
message to Congress defined four freedoms of man viz., freedom of
speech, freedom of worship, freedom from want arid freedom from fear
everywhere in the" world. Thisinspiredttle Atlantic charter of August 14,
1941 and the declaration by the United National of Jan 1, 1942 which Was
signed by 26 countries including the four great powers. U.S.A., UK,
18. See, Paul Sieghart, "The International Law of Human Rights Clarendon Press,
19. Supra n. 17,p.7.
20. Ibid, author referred Grieg-International Law P. 614: sorensen-Mannual of
International Law p. 49.
Vol.XIII] THE CONCEPTS OF HUMAN RIGHTS
USSR and China. It was agreed at the Dumbarton Oaks Conference of
1944 for the establishement of International Organization .that U,N.
. should promote respectfor human rights and fundamenta.1 fr~ms. This
·declaration resulted in a number of peace treaties by alUed powers21
III· Organs Of The United Nations On Human Rights
(After U.N. Charter) .
17. General Assembly and Economic and Social Council are the
principal organs to implement the pl'()visions of•the.charterin the.matterof
human rights. On the recommendation of preparatory commission which
was approved by the General Assembly on Feb. 12, 1946, Exercising the
authority of article 68,22 Economic and social cQuncii at.,its first session
established the .commission. on Human Rights for the purpose of
promoting respect for ,and' observance of human rignts and fundamental '.
freedoms. One nucleus commission Was. also appointed by the terms of
same resolution in.their individual capacity to futher the course of human
rights and to ensure thje Iiaisonbetween the two commissions. Two sulr
commissions were also appointed by ttle commission one onthe freedom
of information and tne press (abolished in 1951 after submitting Draft
Convention for freedom of information and press) and other for protection
of minorities and prevention of discrimination23 .
18. However, commission from Jan 1947 took up the drafting an
international bill of right. A new drafting committee cpnsisting of Austria,
China, USA, France, Le~nanJ U.K.. USA and USSR was created. The
Director of Human Rights submitted a preliminary draft to the
Draftcommittee which passing throught Economic and' social Council
considered by ther third committee of the Assembly, and finally General
assembly adopted the draft on December 10, 1948 as Universal
Declaration of Human Rights unanimously.24
19. The declaration contains a Preamble and 30 articles which can be
divided into three catagories. One Article 1 to 20 deals with personal
21. Supra n. 17 p, 6 to 8.
22. G.A. off. Recs. 1 sess, part tRees Al64 p. 12.
23. Supra n. 17 pages 11. & 12.
24. Adoption was made by 48 votes to nil against. 8 abstentions---- StateS which
abstained from voting were---- Sovjet. Union, Poland, Crechoslovakia, Yugoslavia,
Ukraine. ByJorussia, South Africa and Saudi Arabia.
244 CENTRAL INDIA LAW QUARTERLY [2000
freedoms, two: Article 21 gives political right to form Government of their
own choice and third: In article 22-28 positive rights or social rights are
mentioned of course these rights are subject to certain limitations.
20. As it is generally understoodmat the Declaration has no legal
force, it is neither treaty nor an International agreement but a statement of
principles of.- inalienable human rights "as a common standard of
achievement for all peoples and. all nations" Though Prof.·iauterpachi. 25
.Sir Humnhrey Wald0c26 and Prof.Louis B Sohn27 found its Legal force
either due to'1ac.le generalization" acceptable to all, character of
customary Jaw.· or t~e character of a. world law superior to all other
international instruments' and to domestic law. However, it has influenced
the General Assembly and othero'rgans ofthelJnited Nations and the
declaration has found its way into national constitutions drafted since
21. Later on to create legal··obligations and measures of
implementations the recommendation of
Draftl'ng Committee on Human
RightS two ·Cove~nts were lastly accepted by the General Assembly.
One for civil and political. rights~ and other for economic social and
cultural rights. The COvenant on Civil and Political Rights contains 42
arneles divided into four parts. The IVth part (Article 28-45) deals with
measures of implementation. For this purposes a HumanRights
committee is set up which will work as a bilateral negotiator and good
offices of Human Rights Committee.. The committee is answerable to
Economic and Social Council and Gen~ral Assembly too in the matter pt
Human Rights· regarding reports by the signatory. states, measures
adopted, comments, annual .. report to General Assembly through
ECOSOC. inter statecornpliants, negotiations achieved and the solution
reached. it may appoint ad-hoc conciiiation commission to resoive the
matter it bOth parties agree.
22. The International Covenant on Economic. Social and Cultural
Rights enforced on 3rd Jan, 1976 contains 31 articles divided into 5 parts,
25. The International Law and Human Rights, 1950, P 47..
·26. International and Comparative Law Quarterly Supp. 11, 1965. p. 13·15.
27. International Law Comparative JuriSprudence. p17. (1967).
28. The Covenant has now been ratified by.morethen 35 states and h~ come into force
w.e.f. 23rd March. 1976.
Vol.Xlfl] THE CONCEPTS OF HUMAN RIGHTS' 245
the wording of these rights are in fhe nature of undertaking or recognition
by states rather than the affirmation of a right inherent in the individual as
under Civil and Political Rights Covenant. Its VI parts provides a system
for its implementation which depends on the co-operation of ·the states
23. After that. protocol to the'civil and political rights, sub commission
on Prevention.of Discriminationand Protection of Minorities and a number
of protocol and conventions were adopted by the organs29 . of United
Nations orspBciali~ A9eflCY ro ~prornote the obj~tive of Universal
declaration of Human Rights·1948.
24. The· close examination of. above. .stated histork;al facts/events on .
national as weN intemationallevel.bear testimony to the belief that man's
struggle for rights.is a~ old as the history of mankind is. In fact natural
rights are the basis of the Human Rights. As Gaiu$ Ezejiofer rightly has
said: ' ,
"Human or fundamental Rights is the modern name for
what have been traditionally known as natural rights.30
Provisions of the United Nations Charter constituted a
radical departure from the Prevailing traditional view that
matters relating to human rights solely within the
jurisdiction of a state and beyond the reach of the
International Law. It was felt that world can never have
peace unless we fully develop the human rights for all
because It IS 'In everytluman being, everwnere, at all
times only by virtue of the fact that he is national and
moral. This is the golden thread which led to from the
29. The Convention on "Elimination of All Forms of Discrimination in the Field of
Education" Was adopted by the general conference of UNESCO in December 1960.
The Convention on the "Prevention and Punishment of the Crime of Genocide" Was
adopted by general Assembly on December 9.1948. Convention on the ·Suppression
of the Traffic in persons and of the Exploitation of the prostitution of others" was
adopted by general Assembly on december 2.1949. I he convention on the ":;;tatus 01
Refugees" was adopted by general Assembly on July 28, 1951. And a Protocol
thereto was adopted by the General Assembly on January 31. 1967. The convention
on the "International Right of Correction" was adopted by the General Assembly on
16 December 1952. The convention on the "Political Rights of Women" was adopted
by General Assembly on December 20, 1952. This was adopted to implement the
principle of equality of rights for men and women contained .in the charter of the
246 CENTRAL INDIA LAW QUARTERLY [2000
charter. This declaration was never intended to create
legal.obligations. However. It exerted great influence on
the international community, especially the newly
independent States whose constitutions and domestic
laws 'received inspiration from it, as also on the
subsequent·development of international law on human
rights. It is even claimed that the Declaration "may come
to be judged as perhaps the most important document to
have emerged from the U.N. Organization as the
foundation of its existence and indeed its raison d'etre."
More recently, the Vienna Declaration and program of
action adopted on" 25 June 1993 by·· the World
Conference on Human Rights declared:" Human rights
and fundamental freedoms are the birthright of althuman .
beings." These declaration bear the stamp of John
Locke. Thomas Jefferson and Lafavette. However for
giving legal form to the provisions of the Universal
Declaration,· General Assembly il,doptedtwo International
Covenants· ECOSOC.· and Covenants -on Civil and
Political Rights. Now the need, is to strengthened these
rights by further treaties and the Intemationallnstitution
must wort< invariably for the protection of Human Right
without any hide and seek. What is needed today is the
adoption of ·functional approach to the problems of