In 1948, the General Assembly of the United Nations adopted the Universal Declaration of Human Rights (UDHR), thereby creating the first official legal text which outlined the privileges enjoyed by every human being only because they are a human being. Yet, the Declaration is still a matter of dispute in the world today, especially between the so-called Western world and the nations of Asia and Africa. Why is it that human beings cannot agree on what their common rights are? And what significance does the concept of ‘human rights’ hold for the development of global justice?
Taking a closer look at the UDHR, one immediately becomes aware of its contextual problems. As it was proclaimed very soon after World War II, we have to take into consideration the cause of creating such a text. Of course, we all think of the Holocaust as a huge moral evil against humanity, bringing in the need for a new set of rules for states and citizens. Genocide in general is now considered to be an act of crime against humanity, while in the colonial era of the last few centuries, there was no such concept and many human beings were not considered as being human at all. The declaration therefore brought the rights of individuals on the level of international law, meaning that states could not commit crimes against its own citizens without facing punishment. This new idea meant that a certain moral minimum was needed, and the declaration was meant to set exactly that.
The deficiency of the declaration in its contextual frame is related to the political situation at the time of its creation. The world was divided between the West, led by the USA, and the Communist world, led by the USSR. The latter was very socially oriented, and therefore demanded that certain social rights be included in the declaration. Examples of these are the rights to holiday with pay (Art. 24), healthcare (Art. 25) and education (Art. 26). The other two sets of rights, those of freedom and participation, are simply meant to set the moral minimum for every individual and give them a basic legal right which allows them to continue their life in a protected environment. The problem that arises from these two distinct parts of the declaration is that the social rights require the intervention of the state in society while the other two sets protect the individual from the state. The separation between thick and thin morality plays a large role in this problem. The former includes cultural, value-burdened moral norms that can only be accepted by one nation, or a small group of nations with similar norms. The latter refers to the respect for rights and procedures and sets a moral minimum without values and norms; there is no reference to the good life in thin morality.
Therefore, we can see where the problems between the Western world and the Asian and African countries arise from. The West contends that human rights are simple, thin morality, while their opponents argue that they promote too much thick morality and impose their own values on the rest of the world. Charles Beitz points to the concrete problems with the legal systems of Iran, Pakistan and Saudi Arabia, where “there is a clear conflict with the requirements of international human rights doctrine, and pressure to conform to these requirements will be regarded as partisan”. The separation above between the rights of freedom, participation and social rights clearly shows which rights are thin and which are thick morality and therefore which ones Beitz regards as partisan. It is because of this discussion that Habermas states that “human rights are juridical in their very nature”. His proposition is that the concept should be taken as being a legal one rather than a moral one, therefore not imposing a value-burdened conception on society, but rather allowing every individual to enjoy a set of legal privileges. Yet, for the acceptance of human rights in this light, he nevertheless argues that they have to be accepted by every state’s legal system, which might require a revision not only of the individual systems, but of the declaration as well.
Habermas’ argument that the concept of human rights is judicial rather than moral is very important – it promotes the legal and not the ethical validity of the rights of individuals, which does not impede on any cultural values. As legal rights, in the modern context of positive law, the concept does not require any moral justification for its validity, but is legitimated de facto. A breach in these rights is therefore not treated as a moral crime, but rather as any other criminal action, in accordance with institutionalized legal proceedings. The main aim of this argument is that it should end military conflict by settling disputes in legal proceedings. No such thing can happen before a legally binding, universally accepted declaration of human rights is established, which is not possible in the present format proposed by the UN.
There are many problems which arise when we consider human rights in their general conception and when we consider individual examples of such rights. Many solutions have been proposed to solve these, but with this relatively new concept there is still a lot of room for maneuvering and developing it into something more universal and generally applicable. What we need is to be able to make human rights more inclusive by revising the Universal Declaration and not discriminating between societies. This would result in an adaptation of the concept to the contemporary political situation and bring it out of its original context. When this has produced some results, we can begin to consider Habermas’ idea and the creation of a court to ensure the enforcement of human rights on all levels. At present, we have to understand human rights as guidelines for our mutual relations and attempt to see each other as human and not as different.