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Discuss the relevance of social contract theories in the making of ideas of human rights?
It is often difficult to make a clear distinction between ‘supervision’ and ‘implementation’ of human rights, and no consistent international terminology is used. In human rights literature, protection, supervision, monitoring, and implementation are terms often used indiscriminately to cover both the mechanisms established to determine whether the standards are adhered to, on the one hand, and actual compliance by states with those standards, on the other. The term ‘supervision’, discussed in the previous chapter, refers to all procedures that have been instituted at the international level, with the aim of monitoring compliance with human rights standards at the domestic level. The term ‘implementation’ is used here in reference to actual compliance with human rights standards by individual states as well as all initiatives taken by those states themselves, other states and international organs or other bodies to enhance respect for human rights and prevent violations. Sometimes there is an overlap between the two terms and some institutions use the same or similar processes for both supervision and implementation. Two examples illustrate this:
• Advisory services in the UN human rights system address compliance of states with human rights obligations (supervision) and assist states in improving respect for human rights through, for example, the provision of fellowships and expert advice (implementation).
• The UN Human Rights Council allows individual states to discuss implementation questions in addition to dealing with supervision (e.g., through the establishment of the position of a country rapporteur).
Human rights at the national level
The implementation of human rights law depends to a large extent on the political will (and often, as regards economic, cultural and social rights, the economic capacity) of states to comply with international standards (see V§1) . Ideally, a co-operative network of non-state actors and international institutions all ensure the effective implementation of the international norms and standards. Implementation entails an array of activities. These include primarily activities to improve compliance by the states themselves, such as enacting national laws or administrative practices to comply with human rights standards, strengthening the judiciary branch of government, educating the population, establishing national human rights institutions, improvement of minimum health standards, improving prison conditions, and increasing participation in government.
Human rights at the international level
Generally, to implement international human rights standards, states must affirmatively incorporate them into domestic law. In general, international treaties do not stipulate how states should implement human rights standards, leaving it to each state to decide how obligations will be implemented at the domestic level. However, it is notable that a few treaties specifically mandate the adoption of domestic laws as a part of its implementation framework. For example, both CEDAW (Article 2) and the Convention on the Rights of the Child (Article 4) mandate that states parties pass domestic laws to give effect to the rights set forth in the respective treaties. There are a great variety of domestic methods for implementation of international human rights instruments. Scholars have classified them, for example, into adoption, incorporation, transformation, passive transformation and reference. Moreover, states may apply more than one of these methods. In very broad terms, two systems can be identified. In some states there is an automatic incorporation of treaty provisions once they have been ratified and published in the official gazette (e.g., France, Mexico and The Netherlands). These legal systems are referred to as ‘monist’ , in that both domestic and international law are considered together and as having the same effect. Other states require the express legislative enactment of treaty provisions before they become domestic law (e.g., the United Kingdom, other Commonwealth countries and Scandinavian countries) . These legal systems are referred to as ‘dualist’ in that a strong distinction is maintained between domestic and international law, and the latter must be written into the former in order to carry substantial and enforceable weight.
Implementation of human rights standards can be a difficult task for developing countries where the scarcity of resources may impose challenging obstacles to achieve compliance with human rights within a reasonable time. For example, while a state may in theory agree that people have the right to health, housing or other economic standards, it may not have the capacity radically to change everyone’s living conditions in order to bring them up to the level of the norms aspired to. Similarly, one’s right to a speedy and fair trial may require that a state increase funding to its judiciary system.
Social contract theories:
In broad and general terms, social contract theory emerged during the Enlightenment in response to the changes imposed upon human beings as society evolved from an arrangement characterized by independence—“each on one’s own” living in the “state of nature”—to the economies afforded human beings as they came to live together in small families and clans and, then, as they formed small communities. Complicating these arrangements further was the later transition from rural, agrarian society to that of industrialized, urban society.
While members of contemporary American society live out their lives bound within a social contract comprised of a set of legal, political, and social arrangements that seem “natural” and oftentimes are taken for granted—like the air humans breathe and the water fish process through their gills—these arrangements have evolved and changed over time. As these arrangements first began to shape European society, it was Rousseau who asserted, “Man was born free, but everywhere is in chains” (1987, p. 49). Looking back upon the evolution of society, Rousseau posited a “social contract” hypothesizing how human beings can remain free yet live together in a society where no one person has a right to govern other persons and where the only justified authority is that generated out of agreements or covenants among members.
Social contract theories and its Main Approaches:
The promotion of human rights standards in another country can take place through a ‘positive’ approach, whereby support is given to the improvement of conditions that facilitate compliance with human rights, or through a reaction to a violation of human rights. Often a differentiated approach is chosen, as this may often be the most effective way to bring about compliance. One sees international treaty organs, other countries and non-governmental organizations all working to promote human rights compliance.
a. PROMOTION OF HUMAN RIGHTS – POSITIVE APPROACHES
One way to promote human rights is through the establishment of international human rights organizations. Many institutions monitor or assist in the compliance with specific human rights, such as the Office for Democratic Institutions and Human Rights (ODIHR) (promoting democratic institutions in OSCE countries), the International Institute for Democracy and Electoral Assistance (promoting electoral systems world-wide), and the Inter-American Institute of Human Rights (promoting human rights awareness in Latin America). Human rights NGOs serve several general functions. Some provide humanitarian assistance. Some act as watch dogs pointing out states’ failures to enforce rights in their countries and human rights violations in other countries. This may often happen through shadow reports to human rights treaty bodies or reports released to the press, or through direct shaming and other pressure tactics.
b. RESPONSES TO HUMAN RIGHTS VIOLATIONS – REACTIVE APPROACHES
The call for positive measures to promote international co-operation to construct an ‘international human rights environment’ should not minimize the constant need to respond to human rights violations. While many countries struggle to meet their human rights obligations, the lack of resources cannot justify violations of fundamental human rights. States should respond to human rights violations in other countries in order to promote international compliance based on rights and values as opposed to national interests.
The suitability of a measure in a given situation depends on the specific characteristics of the case at hand, and the potential impact of the responses. Additionally, it should be noted that most states will strongly consider foreign policy ramifications as a reason not to ‘interfere’ or ‘meddle’ with the domestic affairs of another state.
c. HOLISTIC APPROACHES TO HUMAN RIGHTS SITUATIONS
While sometimes the most appropriate approach seems obvious, the available options have to be carefully weighed. Obviously, measures taken simply to promote respect for human rights are less controversial than possible steps in response to violations such as trade sanctions or humanitarian intervention. But at the same time, one should not overlook the fact that the promotion of human rights through development, economic, or trade co-operation programs by its very nature takes a structural, long-term form. This frequently entails co-operation with recipient countries over a fairly long period, even if the human rights situation continues to leave much to be desired. Effective human rights promotion is generally contingent on the resources available to fund such activities and on the political will of the government whose behavior is at issue.
Contingent of human rights with social contract theories:
Social contract theorists assert that in order for a society to function, there must be a real or hypothetical agreement among its members regarding the rights and responsibilities of both the state—which is concerned with advancing the common good—as well as its citizens—who are concerned with advancing their self-interests. For this contract to work, every member of society must be presumed to agree to its terms.
While this hypothesis makes sense in the abstract, the problem it poses concerns a very concrete matter: How are individual members of society “contracted” ?
Some have asserted that the obligation to conform to the terms of social contract is a consequence of birth. Baldly stated, children are born into a particular society at a particular point in time, are reared within that society and, thus, are obligated to follow its laws.
Others have argued that the obligation to conform to the terms of the social contract is strictly legal, that is, anyone living in any particular locale is obligated to follow “the law of the land.” Some laws are penal, carrying with them penalties for failure to comply (a negative view of the social contract). Other duly-approved and promulgated laws, like laws structuring marriage and setting standards with regard to basic needs, including among others safety, health, and education, make social life possible (a positive view of the social contract) . These laws assist human beings to function, flourish, and perhaps even to prosper because they are members of society.
In contrast, social contract theorists’ reason that the free choice to remain a member of society—not birth and not locale—is what binds each member of society to the contract’s terms. In this sense, human beings “volunteer” to belong to society simply because it is rational and in one’s self-interest to do so (Lessnoff, 1986). Laws—whether penal or non-penal—are non-coercive in that, once children have observed society and matured, they can choose as adults to stay or to leave. The choice to stay is what binds a citizen to the social contract and to abide by its terms. This is how the “contract” emerges, as has been argued at least as early in intellectual history by Plato (1981). In Crito, Socrates maintained that a decision to remain in society confers legitimacy to the social contract and imposes its obligations upon a citizen; a decision to leave society signals illegitimacy and, although relieved of its obligations, a citizen now must submit to suffer the consequences of this decision or to leave society.
Argument against the affiliation of human rights with social contract theories:
Feminists and race-conscious philosophers, in particular, have argued that social contract theory is deficient for the reason that it subjects individuals and groups to an agreement that does not advance their particular self-interests. The issue for these philosophers concerns how the social contract has systematically excluded women and non-Caucasians from its provisions solely by means of the reasoning from which the social contract has been derived.
For feminists, what is wrong with the social contract is that much of Western philosophy was written by men and is based on instrumental rationality which supports the subordination of women (called “patriarchy” and “partriarchal right”). Women and their experience, then, are excluded from the social contract and its provisions.
Pateman (1988) argues that the social contract, as an exemplar of this patrimony was crafted by brothers, literally or metaphorically, who, after overthrowing their father’s rule, agreed to share their domination of the women previously controlled by the father. According to Pateman, the social contract, then, is nothing more than a means by which men continue to exert hegemony over and to dominate women, especially as this ideology evidences itself in the marriage contract (which prohibits the legal category of marital rape), the prostitution contract (which accords males sexual access to female bodies), and the contract for surrogate motherhood (which requires access by men to women in the instance of women’s reproductive rights).
Other feminists argue that the social contract considers only managing social relations—an approach delineating fundamental rights and responsibilities—and does not account for ethical relations characterized not so much by equality (as the social contract presumes) as by dependence. For the feminist theorists who assert this critique, including Gilligan (1982) and Noddings (1992), the question is not “What does justice require?” and the instrumental rationality that provides an objective response to that question. The important question is: “What does care require?” and the intuitive feeling that human beings experience which demand a subjective response.
For Held, to view human relationships in purely contractual terms represents “an impoverished view of human aspiration” (1993, p. 194). Thus, when confronting ethical dilemmas, feminists like Held assert, the issue is not what the terms of the contract require equally of all members of society but what relationships require of equally of people who are dependent upon one another. Consider, for example, the mother-child relationship. This relationship, one that is necessitated by nature and where subjective feelings oftentimes will trump objective facts, is where human beings are formed into the ethical agents who are capable of entering into contracts. Social contract theorists have it wrong, feminists of this ilk assert, because social contract theorists start by establishing the contract and, then, impose it backwards upon human relationships in order to govern them.
There is no doubt that human rights institutions can be effective consolation, but without power to adjudicate and issue binding commands they may be turned to be “glorified ciphers and promise of unreality” as rightly termed by Justice VR Krishna Iyer. Only the real political will of the government, the opposition groups and the civil society as a whole can help reach the cherished destination. The decision of the Bangladesh Government to set up a National Human Rights Commission is a welcome development. But again the success of the proposed commission will largely depend on the true political will of the government. At the same time, we cannot solely depend on political will of the ruling class. We need a good process, which will ensure that the Commission is born properly and can grow independently as a people’s commission and not a quasi-governmental body.
Social contract theory hypothesizes about how it is that human beings are willing accept certain restrictions upon their freedom for the benefit of society. Such restrictions oftentimes take the form of laws which society requires its members to follow. In addition, social contract theory specifies the benefits of rule by the consent of the governed as opposed to living in the state of nature.
Held (1993) dissents, arguing that “Contemporary Western society is in the grip of contractual thinking” (p. 193) and perforce the instrumental form of rationality that supports such thinking. As with other critics, Held questions the fundamental assumptions supporting a society constructed upon the bedrock of the social contract theory, arguing that such a society defines membership in such a way as to exclude many human beings—women and persons of color, among others—from full and active participation in society.
1. Human rights (Just Satisfaction), Case of Zubani v. Italy (Art. 41), Applic. No. 14025/88, 16 June 1999.
2. R. Stevensen, Human act arrangement., 6-13,pp.123-156
3. Social contract and theories implies code, article 220.127.116.11.
4. R. KÖBLER, olec de rights., 203-233.
5. J. Bremen, Prussia (1925), Annual human rights report, 1926, p.11
6. Arbitral award March 15, 1963, I.L.R., 1967, 136 at 181.
7. B. Armane, “human act and social theories argument to justice”, J.D.I, 1979, 471, at 493-495, Lex Mercatoria, Forum Internationale, Kluwer, NY 1983, 19.
8. M. FONTAINE, Droit des contrats internationaux, Analyse et rédaction de contracts clauses, FEC Paris, 1989, 649.
9. F.D, Cruise, Cemented calvo arena., 110; M. Christopher, “The new Lex Mercatoria : The First Twenty-Five years”, Arbitration International added to contract theories act, 1982,p.456.