The document summarizes the development of international human rights law under the United Nations. It discusses the International Bill of Human Rights which consists of the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, and the International Covenant on Economic, Social and Cultural Rights. It also describes the mechanisms established by the UN like the Commission on Human Rights and its replacement, the Human Rights Council, to promote and protect human rights.

1. Week 8 (part I)
Topic: The Development of International Human Rights Law
1. United Nations and Human Rights Part a
• The development of International Bill of Human Rights
• The Instruments for the protection of Human Rights under the UN
a) UDHR b) ICCPR c) ICESCR
b) Mechanism for the development of human rights(HRC)
2. Does International Law protects Human rights? Part b
• Universalists versus Cultural Relativists
• Reconcilability of two approaches
• Obstacle of Law: Disagreement on legal definition
Reading: Gerhard von Glahn, James Larry Taulbee, Law Among Nations: An
Introduction to Public International Law (New York: Routledge, 2013), pp. 479-
509

2. Week 8 The Concept of Rights in the Islamic System
and International Human Rights Law Part II
• The concept of Rights in Islam and Western Philosophy
• The Concept of Human Rights in Islamic and Western Philosophy
• Religious Origin of Rights
• Sources of Islamic and Western Human Rights
• Characteristic features of Islamic Human Rights.
Essential Reading:
• Nik Salida Suhaida Nik Saleh, “ The Conceptual Analysis of ‘Rights’ in
the International and Islamic Human Rights Instrument” vol 2,No.4
(AIJCR April 2012) pp.155-164.

3. Week 8 Part III
Comparison of the UDHR and Islamic Human Rights
•Part III
• Comparison of the UDHR and Islamic Human Rights
• The Last Sermon of the Holy Prophet (MPBUH)
• International Bill of Human Rights
• Compatibility Debate
• Is Islam compatible with International Human Rights?

4. Quiz 2 Questions week 8
• What does pacta Sunt servanda mean?
• In what cases can you be exempted from the treaty obligations?
• What does pacta Sunt servanda mean?
• In what cases can you be exempted from the treaty obligations?
• What is the principle of full powers ?
• How does a treaty becomes void ?

5. The Development of International Human Rights
Law Part I
The Instruments for
the protection of
Human Rights under
the UN
The development of
International Bill of
Human Rights
UDHR
ICCPR
ICESCR

6. • Its important to distinguish between substantive law, statements of
aspirational goals, and the rules of morality.
• UDHR is a statement of desired goal not a binding treaty. Its “a
common standard of achievement for all peoples and all nations.”
• Human rights law in its intial states protected the rights of minorities.

7. Important Differentiations
•Important distinction before dwelling into the
discussion of Human Rights Law.
•First, in dealing with human rights, always keep
in mind the distinction between substantive law,
statements of aspirational goals, and the rules of
morality as we perceive and understand them.

8. How do you perceive this UN statement of desired
goals ?
‘Everyone has the right to a standard of living
adequate for the health and well-being of himself
and of his family, including food, clothing, housing
and medical care and necessary social services, and
the right to security in the event of unemployment,
sickness, disability, widowhood, old age or other
lack of livelihood in circumstances beyond his
control.’ Article 25(1) of the UDHR
As a General Assembly resolution, the UDHR stands as a statement of
desired goals rather than black-letter, substantive, law

9. Cont-
In a situation that involves questions of
human rights, sorting out legal obligation
from moral outrage can yield painful
conclusions, because individuals in other
societies may have very different conceptions
of what human rights may constitute.

10. Human Rights before World War I
Before World War I, international law said little
about the individual and left the question of
rights to municipal law.
Early concern about human rights was limited to
a guarantee of certain religious rights to minority
groups within the populations of given states.

11. Cont-
The broader concerns with the rights of human
beings to life, liberty, and equality before the law
were mostly unformulated politically and legally until
the last decades of the nineteenth century
The spread of democratic forms of government,
particularly post World War II, brought these ideas
into the international arena as desirable goals.

12. Human Rights Theory and Practice in the pre
WWI era
To ensure practical observance of the various rights guaranteed to minorities,
the affected sovereign states had to acknowledge that the “minorities clauses”
constituted “fundamental laws.”
They further agreed that the clauses were “placed under the guarantee of the
League of Nations” and would not be altered without the consent of a majority
of the League’s Council.
The League, in turn, worked out a definitive procedure to deal with any
questions arising under the clauses in question.

13. Problem of implementation: The threat to state
sovereignty
•the governments in question all too soon shared a
growing conviction that the guarantees extended to
minorities represented intolerable intrusions into the
domestic jurisdictions of sovereign states.
•This points up the inherent tension between the
Westphalian idea of the “hard-shell” sovereign state
and the idea that governments do not have an
unlimited right to mistreat their own citizens or
subjects.

14. Cont-
• Since human rights law aims to protect individuals from the excesses
of states and governments.
• During World War II, the necessity of promoting and preserving human
freedoms and rights was affirmed in such statements as
• the Atlantic Charter (August 14, 1941),
• the Declaration by the (wartime) United Nations (January 1, 1942),
• the Tehran Declaration (December 1, 1943).
• The Nuremberg War Crimes Trials implicitly assumed that certain laws
applied directly to individuals.
• However, after the war, none of the various peace treaties included
provisions for the protection of minorities, except on a very selective
basis.

15. The protection of Human Rights under the UN Part II
International Bill of
Human Rights
United Nations
Declaration of Human
Rights (UDHR)
ICCPR ICESCR

16. United Nations and Human Rights
•The UN Charter:
• The Charter of the United Nations is the founding document of the United
Nations. It was signed on 26 June 1945, in San Francisco, at the conclusion of
the United Nations Conference on International Organization, and came into
force on 24 October 1945.
• The United Nations can take action on a wide variety of issues due to its
unique international character and the powers vested in its Charter, which is
considered an international treaty. As such, the UN Charter is an instrument
of international law, and UN Member States are bound by it. The UN Charter
codifies the major principles of international relations, from sovereign
equality of States to the prohibition of the use of force in international
relations.

17. •The Charter of the United Nations asserts in the
sweeping terms of its Preamble that the members are
“determined to reaffirm faith in fundamental human
rights, in the dignity and worth of the human person,
in the equal rights of men and women.”

18. Examples of Various Articles of the UN charter on
human Rights
•Article 1 of the Charter lists, among the purposes of the
organization, the “promoting and encouraging [of] respect
for human rights and for fundamental freedoms for all
without distinction as to race, sex, language, or religion.”
•Article 13 assigns to the General Assembly the task of
initiating and making recommendations directed to the
accomplishment of these purposes.
•Article 55(c) commits the United Nations to promote
“universal respect for, and observance of, human rights and
fundamental freedoms.”

19. Cont-
•Article 62 directs the Economic and Social
Council to make recommendations in pursuance
of Article 55(c), and
•Article 68 sets up a commission for the
“promotion of human rights.”

20. Problems with the UN Charter
The articles in the UN Charter however were not enough to
produce an International Bill of Human Rights.
While the Preamble and several articles of the charter commit
states to promote human rights, Article 2(7) of the UN Charter
denies authority to the United Nations “to intervene in matters
which are essentially within the domestic jurisdiction of any state.”

21. Cont-
Furthermore, it appeared that if any
member state on the basis of the UN
charter’s recommendations acted against a
state accused of violating human rights, a
charge of illegal intervention in the internal
affairs of a sovereign state could be lodged.

22. United Nations Declaration of Human
Rights(UDHR)
For the protection of human rights, the Economic and
Social Council (ECOSOC) began in early 1946 to produce
multilateral conventions through the Commission on
Human Rights as a drafting body. And finally On December
10, 1948, the General Assembly approved the UDHR, with
no opposition but with eight abstentions (the Soviet Bloc,
Yugoslavia, Saudi Arabia, and South Africa).

23. UDHR is not a Treaty (Obligations erga omnes)
• Human rights treaties differ in one important respect from
other treaties. Human rights treaties do not create a system
of rights, duties, and obligations between states. They seek to
protect the rights of individuals; hence, some have argued
that they form a category of obligations erga omnes.
Obligations erga omnes are those protecting and promoting
basic values and common interests of all states.
•The UDHR is not a treaty. It was intended to lay down “a
common standard of achievement for all peoples and all
nations.” Being merely a declaration, it possesses no legal

24. Cont-
• Legal obligations can be created only through the ratification by
member states of some convention on human rights, not by a
voting consensus of the General Assembly. Furthermore, Article 22
of the declaration recognized that the realization of the rights in
question had to be in accordance with the organization and
resources of each state.
• the UDHR has to be considered an expository interpretation of the
Charter’s very general human rights provisions. The Charter
provisions represent, at least in theory, binding obligations on all
member states. Therefore it can be referred to as obligations erga
omnes.

25. UDHR as a source of inspiration
•The Vienna Declaration and Programme of Action, 7
adopted in June 1993 at the United Nations
Conference on Human Rights, characterized the UDHR
as the “source of inspiration” and the “basis for the
United Nations in making advances in standard setting
as contained in existing international human rights
instruments.” In this respect, the UDHR has generated
a “developmental push” perhaps unexpected by its
sponsors at the time.

26. Instruments covering the UDHR
•At first, the UN Commission on Human Rights proposed a
single instrument, covering all aspects of the rights
identified in the UDHR.
•The proposal for a single instrument encountered fierce
opposition in the General Assembly.
•As a result, the General Assembly produced several
different instruments:

27. Cont-
•the International Covenant on Civil and Political
Rights (ICCPR);
•the International Covenant on Economic, Social,
and Cultural Rights (ICESCR);
•and the Optional Protocol to the Covenant on
Civil and Political Rights

28. Cont-
• Although initial drafts of the treaties were completed by
1954, bitter disagreements about the contents and
enforcement provisions in both the General Assembly and
its Third Committee (Social, Humanitarian, and Cultural
Affairs) resulted in delay and in considerable redrafting.
Finally, the General Assembly adopted the instruments in
December 1966.
• The two covenants ICCPR, ICESCR and the UDHR together
forms the “international bill of rights”

29. THE INTERNATIONAL BILL OF HUMAN RIGHTS
The
International Bill
of Human Rights
Universal Declaration
of Human Rights
(1948)
International
Covenant on
Economic, Social
and Cultural
Rights (1966)
International
Covenant on
Civil and Political
Rights (1966)
Optional
Protocol to the
International
Covenant on
Civil and Political
Rights
Second Optional
Protocol to the
International
Covenant on
Civil and Political
Rights (aiming at
abolition of the
death penalty)

30. ICCPR
•International Covenant on Civil and Political Rights, ICCPR,
guarantees, among other rights, equality of treatment by
laws and courts, freedom of religious expression, peaceful
assembly, and freedom of movement within states and
between states. It prohibits inhuman treatment as well as
arbitrary arrest or detention, asserts a right to life and to a
fair trial, and provides for the protection of all varieties of
minorities.

31. Legally binding nature of the Covenant
• Just like the Universal Declaration, a party to the Covenant
undertakes ‘to respect and to ensure to all individuals within its
territory and subject to its jurisdiction the rights recognized in the
present Convention, without distinction of any kind’.
• Unlike the Declaration, however, this Covenant is a legally binding
treaty and the state-parties are legally bound to give effect to its
provisions.
• Importantly, each state undertakes to adopt such legislative
measures within their domestic jurisdiction as may be necessary to
give effect to the rights listed in the Covenant (Art. 2(2)) and also to
provide an effective remedy should a violation occur (Art. 2(3))

32. Cont-
• It entered into force on March 23, 1976.
• In June 2016, a total of 168 states had ratified or acceded to the
covenant. The United States finally ratified this treaty in June 1992.
• South Africa became a state party in 1998.
• China signed the treaty in 1998 but has not yet ratified it.
• Saudi Arabia has neither signed nor ratified.
• The Covenant on Civil and Political Rights was supplemented in 1989
by the Second Optional Protocol aiming at the Abolition of the Death
Penalty, which came into force in 1991 and now (1 September 2012)
has seventy-five parties including the UK whereas the United States
has not signatory to the protocol.

33. Articles of the Covenant
• The Covenant establishes a code of civil and political rights similar to
those found in the Universal Declaration. They include, inter alia,
• the right to life (Art. 6),
• the prohibition of torture (Art. 7),
• the prohibition of slavery (Art. 8),
• the right to liberty of the person (Art. 9),
• the prohibition of retroactive criminal legislation (Art. 15),
• the right of peaceful assembly (Art. 21) and the protection of minority
rights (Art. 27).

34. Cont-
• Furthermore, although a state may derogate from certain rights ‘in
time of public emergency which threatens the life of the nation’
(Art. 4),
• no derogation may be made in respect of the more fundamental
rights protected by Arts 6–8, 11 (prohibition of imprisonment for
inability to fulfil a contractual obligation), 15, 16 (right of
recognition as a person before the law) and 18 (freedom of
conscience and religion).
• All in all, the effect of the Covenant is to provide a framework for
the protection of those civil and political rights most commonly
regarded as being essential for the dignity and liberty of Man and
Woman.

35. ICESCR
•International Covenant on Economic , Social and
Cultural Rights, (ICESCR): The ICESCR embraces the
right to work, education, medical care, and related
economic and social benefits. It entered into force in
January 1976. In June 2016, it had 164 states parties.
President Jimmy Carter signed the treaty on behalf of
the United States in October 1977, but the U.S. Senate
has not yet ratified it.

36. Non-binding nature of the covenant
•The Covenant, being a treaty governed by international
law, does impose binding legal obligations on the
parties.
•each party ‘undertakes to take steps, individually
accord=ing to its financial capabilities and through
international assistance and co-operation, especially
economic and technical, to work for the full realization
of the rights as prescribed by the covenant.

37. Cultural Relativism
• This means that the covenant’s flexible or non-binding nature is
adopted to ensure cultural relativism. i.e. to respect and
acknowledge the diverse social and economic conditions prevailing
in different countries.
• Therefore some rights are relative, so that states may determine the
extent to which they can guarantee economic rights to non-nationals
(Art. 3).
• The Covenant is designed to promote economic and social welfare,
not to hinder it by placing states under obligations that prevent
widespread economic and social reform.

38. UN mechanism for developing Human Rights
programs: The Commission on Human rights/ Human
Rights Council
• In 1948, the United Nations established the Human Rights Commission under
the Economic and Social Council (ECOSOC) as the mechanism to develop
human rights programs, as laid down in the Charter and in the UDHR.
Composed of 53 members, elected from as many member states, the
commission meets annually for five weeks. Each member serves a three-year
term.
• In its endeavor to promote the further development of the human rights
concept, the UN General Assembly created (on December 20, 1993) the post
of high commissioner for Human Rights, with the rank of under-secretary-
general.

39. Human rights Council
• In April 2006, the General Assembly passed resolution 60/251
replacing the commission with a new Human Rights Council (HRC).
• The council consists of 47 member states, who serve three-year
terms, elected by a majority vote of the General Assembly.
• Approximately one-third of the membership is elected annaully.
States may serve two consecutive terms.
• The resolution mandated an “equitable geographical distribution”
among five regional groups: Africa (13), Asia (13), Eastern Europe (6),
Latin American and Caribbean (8), and Western European/others (7).

40. Methods used by the HRC
•The use of special rapporteurs (or investigators) has been one
of the main methods used by the HRC as well as its processor.
•Depending upon their mandate from the council, special
rapporteurs can perform consultative, advisory, and/or
monitoring services.
•Some have thematic mandates (freedom of speech, use of
mercenaries), while others have country-specific assignments
(Iran).
•They may make specific recommendations to the council, but
these have no legal significance.

41. How does International Law Protect Human Rights?
Ratification of the treaty:
• Through ratification of international human rights treaties,
Governments undertake to put into place domestic measures and
legislation compatible with their treaty obligations and duties.
• The domestic legal system, therefore, provides the principal legal
protection of human rights guaranteed under international law.
The inability of the domestic legal proceeding to address HR
Abuses:
If the domestic legal proceedings fail to address human rights
abuses, mechanisms and procedures for individual and group
complaints are available at the regional and international levels to
help ensure that international human rights standards are indeed
respected, implemented, and enforced at the local level.

42. UN agencies and other multilateral instruments (NGOS
and INGOS)
• A number of the specialized agencies and subsidiary organs of the UN are also
concerned with the promotion and protection of human rights. Such as:
•the International Labor Organization concerned with the
issues of forced labor, equal pay and the right to work.
Members are under an obligation to submit reports and
there is a procedure for inter-state complaints to the
International Labor Office. These may be referred to a
Commission of Inquiry and although its report is not binding
as such, a party may refer the matter forward to the ICJ.

43. Cont-
•The United Nations Educational, Scientific and Cultural
Organization (UNESCO)
• the United Nations Relief and Works Agency (UNRWA) all deal
with various aspects of human rights.
•UNRWA has field officers and legal advisers stationed in the
Israeli-occupied territories of Palestine whose function is to
protect the human rights of Palestinian refugees on a day-to-
day basis.

44. Cont-
• many other treaties covering specific human rights matters. Examples include:
• the 1948 Convention on the Prevention and Punishment of the Crime of Genocide,
• the Convention against Torture ,
• the Convention on the Elimination of All Forms of Discrimination Against Women
1979,
• the 1973 Convention on the Suppression and Punishment of the Crime of Apartheid
and, in the field of personal responsibility,
• the 1945 Agreement for the Prosecution
• Punishment of Major War Criminals
• Charter of the International Military Tribunal at Nuremberg,
• the Yugoslav, Somalia and Rwanda War Crimes Tribunals
• the International Criminal Court

45. Does International Law protects Human rights? Part 3
Universalists versus Cultural Relativists
Reconcilability of two approaches
Obstacle of Law
Disagreement on legal definition

46. Universalists Vs Cultural Relativist Debate
Universalism:
Human rights are
universal and should
apply to every
human being.
Cultural Relativists:
Human rights are
culturally dependent,
and that no moral
principles can be made
to apply to all cultures

47. The evolution of universalism
• The declaration of human rights occurred immediately after the
atrocities committed during WWII.
• The globalization of human rights began when the world was awakened
to the crimes committed under one government (Hitler), and the need
for a more universal system of accountability and responsibility.
• Through a forum such as the United Nations, cultural differences are
better able to be resolved, thereby paving the way for universalism while
at the same time recognizing and compromising on the needs of certain
cultures.
• The recent adoption of the International criminal court in June 1998 is an
important step in enforcing and promoting the values agreed upon by
the member nations.

48. Universalism main Postulates
Universalism
Individuals
are driven by
the pursuit of
self interests
Humans
possess
inalienable
rights.
Human rights
are universal.
Primitive
cultures will
eventually
adopt the
West system
of rights and
laws.

49. Universalism main Believes
Universalism refers to the notion that human rights are universal and
should apply to every human being.
Universalism holds that more “primitive” cultures will eventually
evolve to have the same system of law and rights as Western cultures.
In universalism, an individual is a social unit, possessing inalienable
rights, and driven by the pursuit of self interest.

50. Cultural Relativists
Main Believes of
Cultural Relativists
no universality of
moral principles
UDHR (1948) a
product of western
Political history
Universalism, is a
form of cultural
Imperialism .

51. • Cultural Relativists object, and argue that human rights are
culturally dependent, and that no moral principles can be made
to apply to all cultures.
• They argue that the principles embedded in the Universal
Declaration of Human Rights (1948) are the product of Western
political history.
• Indeed, the origins of the Universal Declaration are rooted in
political landmarks in Western history, such as the Magna Carta of
the United Kingdom (1215), the French Revolution (1789) and the
American Bill of Rights (1791). Cultural Relativists argue that
Universalism, in its attempt to extend a Western ideal to the rest
of the world, is a form of cultural imperialism.

52. Neither universalism nor
cultural relativism is exempt
of political manipulations.
Does that mean that neither view
carries some validity? Furthermore,
if they each carry some validity, are
they mutually exclusive?

53. Striking the Middle ground between the Two
Approaches.
To answer the question regarding the validity of both
Universalists and Cultural Relativists it would be
more pertinent to say that neither argument is valid.
Human Rights paradigms(Approaches) are tools,
therefore they do not have intrinsic values-would be
reducing critical thinking to syllogism (generalize).

54. A realistic Approach
Reconciling the two approaches
in theory and practice

55. Cont-
• Although there exist differences of perceptions among cultures or
groups of people according to their history, language, and
economic circumstances regarding morals but simultaneously
there exist commonalities too. For example in the comparative
textual analysis between Confucius and Locke. We find how both
at different times, insist on the centrality of the concept of
Humanity(human beings collectively) in defining individuals.
• Disagreeing with the content of what is now presented as
universal does not have to mean that there are no values or norms
universally agreed upon. Western values may not be universal but
it does not mean that universal values do not exist.

56. conclusion
This leads us to a level of conciliation that would embody a true
cross-cultural search of what can be universally agreed upon. This can
be achieved in a situation where,
• Universal standards should be the goals while cultural legitimacy is
used as the method.
• This would be much more relevant if those defining the culture were
not those in power.
• The search of commonalties would (in theory) bypass the structures
of power.
• It could forge a necessary dialectic (when two seemingly conflicting
things are true) between external attempts to build a universal
system and the internal assistance of various civil societies.

57. Obstacle of Law
How the debate between
Universalists and Cultural
Relativists have created
obstacles( hindrances) in the
realization of Human rights?

58. Example of the Obstacle of Law Debate: Criticism on
ICCPR and ICESCR
• Both the ICCPR and the ICESCR became objects of bitter criticism. Several
presidents failed to transmit the two instruments to the U.S. Senate.
• A considerable body of public opinion in the United States agreed with the
following view concerning the ICESCR: We believe that under present
conditions “economic and social rights” are really more in the nature of
aspirations and goals than “rights.” This semantic(meaning of the word)
distinction is highly important. It does not make sense to proclaim that a
particular level of economic and social entitlements are rights if most
governments are not able to provide them. In contrast, any government can
guarantee political and civil rights to its citizens.

59. The Obstacle of Law debate
The Obstacle of Law debate is essentially a legal
debate when texts of international law are being
drafted. Discussions then follow on what
understanding to give to the term “degrading
treatment” or what reservations can a domestic
legislation make in the name of religion, culture
or constitution (in the case of the US).

60. Cont-
• The debate concentrates on the content of the legislation or its
interpretation or application in domestic law, never on the
means(How? tools for achieving the end) itself:
• the fact that there is an over reliance on law to address Human Rights
issues. Actually if there is a western influence, it is to be found in that
domain. Law as an absolute value is permeating(spreading) the
international realm. In international law nation-states are both
creators and parties.
• In Human Rights, like in any other domain, states are not going to
create universal or local structures that bypass the state’s level of
control.

61. Cont-
•The western idea that a ‘good litigation can solve all problems’
is also present in Human Rights doctrine. The fact is that the
Human Rights legislation, which by nature of the international
system lacks serious mechanism of enforcement, has acted as
a smokescreen and has often diverted efforts and resources
from other venues.
• Victory is claimed when a given country finally adopts an
international treaty or adequately adapts its domestic law, i.e.
China signs the ICCPR . Efforts can then stop or more
realistically, MFN status can be renewed.

63. Week 8 Islamic System of Human Rights and
International Human Rights Law Part II
• The concept of Rights in Islam and Western Philosophy
• The Concept of Human Rights in Islamic and Western Philosophy
• Religious Origin of Rights
• Sources of Islamic and Western Human Rights
• Characteristic features of Islamic Human Rights.
Essential Reading:
• Nik Salida Suhaida Nik Saleh, “ The Conceptual Analysis of ‘Rights’ in the
International and Islamic Human Rights Instrument” vol 2,No.4 (AIJCR April 2012)
pp.155-164.

64. The concept of Rights and Human Rights in Islam
and Western Philosophy
According to the law experts there are three legal families in the
world.
The two most popular and widely spread families are Romano,
Germanic Civil law and the second one is the Anglo American
Common law. The third family which is gradually gaining significances
is Islamic law, which is practiced by one fourth of humanity.

65. Religious Origin of Human Rights
The basis of
Human Rights
“ Spiritual unity of all
mankind” i.e. all human
beings are created
equal. This idea can be
found in
Biblical
teachings
Stoic philosophies
Protestant reformation
Islam

66. cont-
•The Bible reflects this principle in its idea of all humans as
created in the image of God.
•The principle can also be found in Stoic philosophy. Marcus
Aurelius, the Roman emperor and prominent Stoic author,
explained that all human beings are tied together not by
physical bonds but by their common spirituality.
•The Protestant Reformation, too, emphasized spiritual
equality.
•Similarly roots of human rights are found in Islamic
sources as well.

67. Such as Mohammad Hashim Kamali, provides a detailed account of human rights in
Islam in his book series, Fundamental Rights and Liberties in Islam.
His book Freedom of Expression in Islam volume presents evidence for a broadly
construed freedom of expression, such as the Quranic encouragement of productive
debate, the centrality of “freedom of opinion” in Islamic political thought, and hadith
that teach that no one is beyond criticism and that an individual has the fundamental
right to argue his or her concerns to religious and political leadership.

68. Question?
Are human rights
absolute and
bestowed on men
by God?
or have they evolved
with the
development of the
society?

69. Cont-
• Lowis Henkin explains: “Human Rights is the idea of our
time”.
Lowis Henkin (ed.), The International Bill of Rights (New York, Press
1981) p. 1.
Islam has granted a full fledged bill of rights for both
Muslim and non Muslims.
M.I Patwari, “Human Rights in Islamic Law and International Law:
A Comparison” Vol. X & XI ICLQ (1990 & 1991) p.17

70. Western Conception of Rights
Four categories used for defining
Western Rights
Hohfeld’s four
categories of rights:
Claims, Liberty,
immunity and Power
Lacey’s
explanation of
H.L.A. Hart’s
conception of
rights as ‘will or
choice’.
Neil MacCormick’s
concept of rights
built on Jeremy
Bentham’s concept
of rights as interest
conception’.
Ronald Dworkin,
concept of rights build
on the interest theory
that explains ‘rights as
trumps’ or winners.

71. Western Concept of Rights
•In Western discourse, ‘rights talk’ emerged in the
medieval period with the notion of natural rights a by-
product of the idea of natural laws. We can argue that
the western conception of rights has its roots in the
natural law.
•However , most human rights scholars when discussing
the concept of rights use the four different categories of
rights as explained by Hohfeld.

72. Hohfeld explanation of Rights
•According to Hohfeld “ rights are claims, liberty, immunity
and power”. He further uses an example to explain the duty
bound nature of his conception of rights.
•Rights as a claim are a demand to something, which can be
made against someone else that has active duties1 to do or
to provide
•Liberty means the freedom to do something is a claim that
in turn makes the other person duty bound not to interfere
with the exercise of that freedom.

73. •As immunity, rights denote an exemption from challenge in
doing something or from having a legal status altered
(Jones, 1994: 24-25), such as a doctor’s rights not to be
sued for practicing his professional skills even though his
act results in a failure of medical treatment to patient.
•Finally, rights also mean power to do something or to
create a legal relationship which affects other people. This
can be seen from an example such as a doctor’s rights to
decide a mercy killing, which affects the rights of the still
living patient.

74. Cont-
•The second categorization of rights in the western
discourse is based on Lacey’s explanation of H.L.A.
Hart’s conception of rights as ‘will or choice’ .
According to him "the essence of right is choice or
agency: a right is a specially protected choice to
interfere with another’s freedom”.
• The third conception of western rights as developed
by Neil MacCormick, is built on Jermey Bentham’s
concept of rights as interest conception’.

75. • The English utilitarian political philosopher and
lawyer Jeremy Bentham (1748-1832) dismissed the
notion of “natural” rights as nonsense and argued the
all rights were the creation of the state. Thus his idea
of rights is based on “Rights as interest conception”
that claims the function of rights is to preserve the
right-holder’s interests.

76. Cont-
The fourth view of rights defended by Ronald Dworkin, is
build on the interest theory that explains ‘rights as
trumps’ or winners . This meaning of rights, makes the
rights holders winners or deciders, and confers on the
winners the power to force that duties must be fulfilled
when claims of rights are made.

78. Islamic conception of Rights.
• Mohammad (2003) who analysed the term ‘rights’ and ‘duties’ in common
laws and Islam has proven that the concept of rights is clearly identified by
the Quranic verses and the Prophet’s traditions.
• Mohammad has explained that Muslim jurists have devoted independent
titles to the concept of rights, such as civil obligation (Al-Sanhuri, 1954)
property of a deceased individual (Al-Kabashi, 1984) and nature and
restrictions of rights (Al-Durayni, 1984).
• According to Mohammad, Al-Durayni examined right as restricted by public
good whereas Husayn and Al-Sariti (1992) detailed about the concept of
rights and its difference with liberty. Uthman and Al-Sharanbasi (1986)
explained the meaning of haqq, bearers of rights and its classification and Al-
Sabuni (1979-1980), Badran (1965) and Qasim (1982) also detailed out the
meaning of haqq, its subject matter and sources (Mohammad, 2003: 4-10).

79. The meaning of “Haqq”
•Islam uses the Arabic word “Haqq” for rights. The word
‘haqq’ occurs around 287 times and it is used for about 18
different meanings in the Quran (Mohammad, 2003: 64-
65), of which most commonly used is ‘certainty’,
‘conformity to reality’, ‘truth’ and ‘justice’ (Said, 1979: 63).
•Likewise, it connotes ‘power’ as in cases of rights of
owners and guardians to use and dispose their property
and could mean immunity from certain liabilities.

80. Cont-
• According to Mohammad, similar with the term ‘rights’ in English, the word
‘haqq’ is commonly used in different sets of meanings such as ‘liberties’
and ‘options to do or not to do something’, ‘privileges to specific interests’,
‘incumbent and mandatory’,
• Therefore, rights is also the established meaning of the term in Arabic in the
sense of a ‘claim right’ (Ali, 2000: 15-16).
• This is supported by the literal, legal and juridical meaning of the term
‘rights’ which always stressed on responsibilities rather than entitlement
(Zafrullah Khan, 1967: 13-14 and Abdillah, 2006: 2). Zafrullah pointed out
an example in marriage contract in which Islam regards marriage as civil
contract, imposing mutual duty and obligation of both parties, not stress on
claim of rights or power (Zafrullah Khan, 1967: 39).

81. The Western and Islamic
conception of Human Rights and
its sources

82. Human Rights: Western View
• Human Rights refer to “those conditions of social life
without which no man can seek in general to be his best
self.”
Harold Joseph Laski, Studies in the problem in Sovereignty (Yale
University Press, 1924) p. 23.
“Rights means justice, ethical correctness, or consonance
with the rule of law or the principles of morals. It is the
opposite of wrong, unjust and illegal. It can also be defined as
a power, privilege or immunity guaranteed under a
Constitution, Statute, decisional law or claimed as a result of
long usage”.
The Black Law Dictionary, 1920 p. 1189.

83. Cont-
• “rights that belong to an individual or group of
individuals as a consequence of being human. They
refer to wide continuum of values or capabilities,
thought to enhance human agency and declared to be
universal in character, in some sense equally claimed
for all human being”.
The New Encyclopedia Britannica, 15th ed. Volume 6, (Chicago,
2005) p. 137.

84. Cont-
• According to the UN “Human Rights are those
rights which are inherent in our nature and
without which we cannot live as human being”.

85. The Origin of Human Rights in the West
• the Magna Carta 1215,
• Petition of Rights 1627,
• Bill of Rights 1689,
• Act of Settlement 1720,
• American declaration of Independence 1776,
• American Bill of Rights 1791 and
• French declaration of Rights of Man and citizens
1789,
• Establishment of International protection for Human
Rights after the Second World War.
Earlier
national
instruments
used for the
protection of
Human Rights
:

86. The post -2nd WW period
•The Charter of the United Nations Organization 1945
was the first International instrument by which
International protection of Human Rights has been
legally recognized. Following the Charter, on 10th
December, 1948 the General Assembly adopted and
proclaimed The Universal Declaration of Human
Rights as “a common standard of achievement for all
people and all nations”.

87. Cont-
•The Declaration lays down the basic principles of equality
and non discrimination.
•The Universal Declaration of Human Rights, 1948 proclaims
two kinds of rights:
1. Civil and Political rights,
2. Economic, social and cultural rights.
• All these rights contained in the Universal Declaration of
Human rights, 1948 are declaratory because the declaration
is not a legally binding treaty on the member States. It has
only moral and political significance.

88. • In 1966 two International Covenants on Human Rights were adopted
to give legal effect to the provisions of the declaration.
• The Human Rights Committee established under Article 28 of the
International Covenant on Civil and Political Rights, 1966 is
responsible for supervising implementation of Human Rights set out
in the Covenant.
• The Optional Protocol to the International Covenant on Civil and
Political Rights, 1966 enables the Human Rights committee to
receive and consider communications form individuals claiming to
be victims of violation of any of the rights set forth in the Covenant.

89. Cont-
•The Committee on Economic, Social and Cultural
Rights is responsible for the implementation of
economic, social and cultural rights set forth in the
International Covenant on Economic, Social and
Cultural Rights, 1966.
•These four instruments together are now regarded as
the “International bill of Human Rights”

90. The Islamic concept of Human Rights
• Human Rights under Islamic context, is as old as
Islam itself.
•The term Huqooq ul-Ebad has been used for the
term Human Rights in Holy Quran, Hadiths and Fiqh.

91. Definitions of Human Rights by renowned Islamic
jurists:
• “Rights in Islam means a legal bond under which the
authorized person, monopolizes his exclusive command on
something or a specific requirement of another person”.
Dr. Hassan Kerrah, Introduction to the Islamic Law (Jamiah Qahirah,
Egypt, 1954) p. 365.
“Human Rights are those rights which are given by the
creator (Almighty Allah) to the humanity through his
Messenger. These rights are immutable but have reciprocal
relationship to the duties”.
Dr. Tahir Qadri, Human Rights in Islam (Mihajul-Quran Publication
Lahore, Pakistan, 2004) p. 41.

92. Cont-
“freedom of expression (fundamental Human Right)
also compliments human dignity, for the essence of
character and personality is reflected in a person’s
opinion and judgment.”
M.Hassan Hashim Kamali, Freedom of Expression in Islam (Berita
Publishing, Kualalumpur, 1994) p.12.
The above concept is based on the verse of the Holy
Quran in which Allah Almighty talks about human
dignity :
“We have certainly created man in the best of stature”.

93. Origin of Human Rights in Islam
• As far as Human Rights in Islam are concerned, they were
proclaimed by the Prophet Mohammad (PBUH) of Islam, in the
early 7th century i.e. one thousand years before the western
concept was developed. The first revelation on the Holy Prophet
(PBUH) was in 610 A.D. The sources of Islamic Human rights are:
• The Holy Quran (Divine Revelation)
• The Last Sermon of the Holy Prophet (MPUH)
• Hadith or Sunnah of the Prophet Muhammad (MPUH).

94. Essential features of Human rights in Islam by
Allamah Abu al-'A'la Mawdudi
• Divinity of human rights: This means that human rights in Islam granted are
by God; they have not been granted by any king or by any legislative
assembly.
• Islamic Rights are Inalienable: This means that unlike the rights granted by
the temporal authorities such as kings or the legislative assemblies, the
Islamic rights cannot be withdrawn or openly violated by the sovereign
authorities.
• Islamic Rights are Irrevocable: This means that since Islamic human rights
have been conferred by God, no legislative assembly in the world, or any
government on earth has the right or authority to make any amendment,
abrogate or withdraw them .

95. • Specific Applicability: The Islamic rights are applicable to every
believer since they are part of the Islamic Faith. Every Muslim or
administrators who claim themselves to be Muslims will have to
accept, recognize and enforce them.
• If they fail to enforce them, and start denying the rights that
have been guaranteed by God or make amendments and
changes in them, or practically violate them while paying lip-
service to them, the verdict of the Holy Quran for such
governments is clear and unequivocal:
Those who do not judge by what God has sent down
are the dis Believers (kafirun). 5:44

96. Cont-
•"They are the wrong-doers (zalimun)" (5:45), while a third
verse in the same chapter says: "They are the evil-livers
(fasiqun)" (5:47).
•Thus all those temporal authorities who claim to be Muslims
and yet violate the rights sanctioned by God belong to one
of these two categories, either they are the disbelievers or
are the wrong- doers and mischief makers.

97. The end