Fordham International Law Journal Volume 21, Issue 1 1997 Article 3 International Human Rights: A Perspective From India Prakash Shah∗ ∗ Copyright c 1997 by the authors. Fordham International Law Journal is produced by The Berke- ley Electronic Press (bepress). http://ir.lawnet.fordham.edu/ilj International Human Rights: A Perspective From India Prakash Shah Abstract The evolution of the international human rights regime has often been shaped by the push and pulls of political and historical forces and events at the expense of alternative approaches. The following Essay traces this evolution from the author’s perspective, presents India’s position in relation to the structure and environment of international human rights discourse, and outlines trends and characteristics that merit reflection. INTERNATIONAL HUMAN RIGHTS: A PERSPECTIVE FROM INDIA Prakash Shah* INTRODUCTION The Preamble to the U.N. Charter' expresses the ideals and common aims of all the people whose governments joined to- gether to form the United Nations. While expressing their de- termination "to save succeeding generations from the scourge of ' war, "2 governments that belong to the United Nations declared their determination "to reaffirm faith in fundamental human rights, in the dignity and worth of the human person, in the equal rights of men and women and of nations large and small Building upon and stressing these common ideals and aims, Article 1 of the U.N. Charter proclaims that one of the United Nations' purposes is to achieve international cooperation in promoting and encouraging "universal respect for, and obser- vance of human rights and fundamental freedoms for all without distinction as to race, sex, language, or religion. ' One of the first major achievements of the United Nations was the adoption of the Universal Declaration of Human Rights5 ("Universal Declaration") by the U.N. General Assembly on De- cember 10, 1948. Other international human rights instruments quickly followed the adoption of the Universal Declaration. This prompted the United Nations to focus more carefully on human rights issues, and caused the issue of human rights to occupy a central place in international law and in U.N. activities. The evolution of international human rights has taken place on both legal and political planes.6 Legally, there has * Prakash Shah is the Permanent Representative of India to the U.N. and has served in the Indian delegation to the Commission on Human Rights in Geneva for several years. 1. U.N. CHARTER. 2. Id., pmbl. 3. Id. 4. Id., art. 1. 5. Universal Declaration of Human Rights, G.A. Res. 217A, U.N. Doc. A/810 (en- tered into force December 10, 1948). 6. For a more detailed account of the problems in various analytical classifications of human rights mechanisms and bodies, see THE UN AND HUMAN RIGHTS: A CRITICAL INTERNATIONAL HUMAN RIGHTS been impressive growth in the number and scope of human rights treaty bodies and their optional protocols. Similarly, there has been a dramatic increase in the number of U.N. 'organs' 7 devoted primarily to human rights matters, as well as a major increase in the time allocated by some of the existing organs to the human rights component of their mandates. Politically, U.N. organs and treaty bodies have served the function of raising awareness regarding human rights as a whole and directing at- tention to specific problem areas. The role of such treaty bodies and U.N. organs has been to interpret and monitor compliance with specific treaty regimes. The major landmarks in the evolution of the international human rights regime are the U.N. Charter, the Universal Decla- ration, the 1966 International Covenant on Civil and Political Rights8 ("ICCPR"), the 1966 International Covenant on Eco- nomic, Social and Cultural Rights9 ("ICESCR"), the 1986 Decla- ration on the Right to Development ° ("Right to Development"), and the 1993 World Conference on Human Rights ("World Con- ference")." Also of notable significance in the international human rights arena, the Vienna Conference of 1993 established the Office of the High Commissioner for Human Rights.1 2 These developments have been reinforced by a broad movement towards strengthening and mainstreaming the human rights di- mension in the U.N. activities. The U.N.-sponsored interna- tional conferences of the 1990s and U.N. follow-up activities demonstrate the U.N.'s commitment to international human rights. Although the United Nations has contributed greatly to creating, shaping, and implementing the international human APPRAisAL (Ed. Philip Alston ed., 1992). A number of factual details and analytical cate- gories have been derived from Alston and Ricoeur. 7. See U.N. CHARTER, art. 7 (listing principle organs of United Nations). 8. International Covenant on Civil and Political Rights ("ICCPR"), Dec. 19, 1966, G.A. Res. 2200, 21 U.N. GAOR, Supp. (No. 16) 52, U.N. Doc. A/6316 (1966), reprinted in 6 I.L.M. 368 (1967). 9. International Covenants on Economic, Social and Cultural Rights ("ICESCR"), 6 I.L.M. 360 (1966) (entered into force on Dec. 16, 1966). 10. The Declaration on the Right to Development, G.A. Res. 41/128 U.N. GAOR 41" Sess., Supp. No. 53 at 186, U.N. Doc. A141/53 (1986). 11. Report of the World Conference on Human Rights, Vienna, June 14-25, 1993 (A/CONF. 157/24 (Part I)), Chap. III. The World Conference adopted the principle that human rights of women and of the female child are an unalienable, integral, and indivisible part of universal human rights. Id. 12. G.A. Resolution 48/141, 33 I.L.M. 303 (1993). 26 FORDHAMINTERNATIONAL LAWJOURNAL [Vol. 21:24 rights regime, the regime's evolution is not restricted to efforts through the United Nations. U.N. specialized agencies such as the International Labor Organization1" ("ILO"), United Nations Children's Fund14 ("UNICEF"), United Nations High Commis- sioner for Refugees15 ("UNHCR"), United Nations Educational, Scientific, and Cultural Organization 16 ("UNESCO"), and a number of regional groups have played invaluable roles in inter- national human rights evolution as well. Although the evolution of the international human rights re- gime was poorly organized and at times inconsistent, the nature and scope of international human rights institutions have been sub- jected to substantial transformations. It has often been shaped by the pushes and pulls of political and historical forces and events at the expense of alternative approaches. The following Essay traces this evolution from my perspective, presents India's position in rela- tion to the structure and environment of international human rights discourse, and outlines trends and characteristics that merit reflection. I. HISTORICAL, POLITICAL, AND PHILOSOPHICAL BASIS OF INTERNATIONAL HUMAN RIGHTS DEVELOPMENTS Western historical, political, and philosophical factors strongly influenced the international course of human rights de- velopment. The foundations of post-war architecture of human rights, initiated in the aftermath of World War II and manifested in the Universal Declaration and the 1996 Covenants to the Uni- versal Declaration, was rooted in Western history. Furthermore, the social, economic, political, and philosophical impacts of the Intellectual Revolution in Europe in the 17th-19th centuries de- prived the conceptual underpinnings of international human rights. The most notable developments were the challenges to, and breakdown of, the European feudal structure, accompany- ing democratization, the rise of individualism, the separation of church and state, the secularization of law and politics, the pri- macy of scientific and legal discourse over religion, and the in- 13. International Labor Organization ("ILO"), reprinted in 28 I.L.M. 1382 (1989). 14. United Nations Children's Fund Report on State of World's Children ("UNICEF"), 23 I.L.M. 236 (Jan. 1984). 15. The Statute of the Office of the United Nations High Commissioner for Refu- gees, GA Res. 428 (V), Annex, para., 5 UN GAOR Supp. (No. 20), UN Doc. A/1775 (1950). 16. United Nations Educational, Scientific, and Cultural Organization ("UNESCO"), 10 I.L.M. 289. 1997] INTERNATIONAL HUMAN RIGHTS fluence of Protestant thought on traditional Catholic values. Ac- cording to the traditional philosophies of John Locke, Jean Jac- ques Rousseau, Immanuel Kant, and others, 17 rights inhere in the individual. They are not delegated to the individual by any person, state, or other entity. Individual sovereignty precedes that of an organized state and, thus, asserts and imposes certain limits on the actions of the state against the individual. Individ- ual sovereignty places constraints on government actions and collective decisions and gives individuals certain autonomy rights and initiative. This Western historical, political, and philosophical impera- tive had a counterpart in the developing colonized world. For example, Africa and Asia's struggles for independence and their post-war decolonization movements, which emphasized self-de- termination, reflected this Western imperative. In colonized na- tions, colonial domination and racism encompassed a wide range of human rights violations, justifying international con- cern."8 For colonized nations, the appreciation of human rights, therefore, was linked to their struggle for emancipation. The Universal Declaration vindicated their aspiration for such an ap- preciation for human rights. The Universal Declaration, how- ever, tended to protect nations rather than individuals. Faced with the stark reality of poverty and underdevelopment, there were compelling reasons to conceptualize human rights in con- crete and physical terms meaningful to the vast majority of the poor. This was reflected in the Declaration on the Right to De- velopment and in due course led to what are now described as 17. See Introduction by Paul Ricoeur in UNESCO and the International Institute of Philosophy, PHILOSOPHiCAL FOUNDATIONS OF HUMAN RIGHTS, 1986. This, we shall see, is precisely one of its most fundamental weaknesses, and perhaps one of the well- springs of the clashing perceptions of human rights that we now witness routinely in the international arena.